Opinion
December 2, 1958 —
January 2, 1959.
APPEAL from an order of the county court of Brown county: GROVER M. STAPLETON, County Judge of Door county, Presiding. Affirmed.
For the appellant there was a brief by Duffy, Dewane, Miller Gerlikowski of Green Bay, and oral argument by Edwin A. Gerlikowski and William J. Duffy.
For the respondents there was a brief by Kaftan, Kaftan Kaftan of Green Bay, and oral argument by Fred F. Kaftan.
The order from which the appeal is taken is one admitting the will of Alma Vickman to probate. John Vickman, husband of the deceased, opposed probate on the ground that the will was procured by undue influence to his detriment. The trial court found to the contrary.
John and Alma Vickman were married in 1936 when she was thirty-five and he was forty-five years old. They had no children. At the time of the marriage she owned a building which housed three living apartments and a grocery store. During the marriage the couple made their home in the apartment on the ground floor and for a time Alma operated the grocery. She discontinued the grocery in 1943. She rented the two upper apartments to tenants. She worked out at times and had money in her own name. Several years before she died Mrs. Vickman transferred her bank accounts to joint accounts with her husband. Though on some 15 occasions he had discussed a proposal to transfer her realty into a joint tenancy with him she never would do it. John's individual bank accounts and his survivorship in the joint accounts come to about $20,000.
John had been a railroad engineer but in 1951 was retired for disability. He and his wife lived in the apartment which she owned. His railroad pension and his pension as a war veteran which, together, amounted to $169.50 per month, sufficed for their expenses.
For some time before June 8, 1956, Mrs. Vickman was experiencing considerable discomfort in the abdominal region. She told her husband that she thought it would be wise for her to go to the hospital. Mr. Vickman dialed the telephone number but Mrs. Vickman carried on the conversation and made her own arrangements at St. Mary's Hospital, Green Bay. She also made her own arrangements with her attending physician. She entered the hospital on June 8, 1956, and was kept there for observation and then was released at her request to return home on June 23, 1956, until the trouble might localize more definitely. During the time she was in the hospital her nieces, Elaine Christensen and Kathleen Platkowski, were with her almost constantly and they brought her back to her home. Elaine is the daughter of Henry and Loretta Fellows. Mr. Vickman, too, visited his wife at the hospital every evening and at times during the day.
When at the hospital she had discomfort but seldom experienced severe pain. She required no sedatives and took none. The day after she returned home from the hospital she was taken to the home of her brother, Henry Fellows, and was cared for there. On June 25th she told Mrs. Fellows that she wanted to have a will prepared. Mrs. Fellows told her husband, Henry Fellows, that Mrs. Vickman wished to do this. Mr. Fellows was acquainted with Arthur Kaftan, a Green Bay lawyer, and told his wife to summon Mr. Kaftan. Mr. Kaftan called upon Mrs. Vickman at the Fellows home and ascertained her wishes, after which he had the will prepared and brought it to her for signature. The provision for Mr. Vickman as so prepared gives Mr. Vickman:
". . . the right to live in the lower apartment at 1888 Shawano avenue, Green Bay, Wisconsin, and the right to use my household furniture and goods while living there, for the rest of his life, without the necessity of paying any rent therefor or real-estate taxes thereon or to pay for the upkeep of said place. If my said husband shall cease to live at said apartment his right in the said apartment furniture, and household goods shall cease."
When Mr. Kaftan brought the will to Mrs. Vickman for signature she insisted on adding a new restriction in the last sentence concerning the apartment, thus:
"and shall also cease if my said husband shall remarry, or have anyone come to live with him."
Mr. Kaftan inserted this addition in longhand which was initialed by the testatrix and the two witnesses and the will as amended was then executed. The witnesses were Mr. Kaftan and a neighbor woman. At all times Mrs. Vickman was clearheaded and of undoubted testamentary capacity. On June 29th Mrs. Vickman was again hospitalized, this time in St. Vincent's Hospital at Green Bay, where she submitted to surgery and her condition was then diagnosed as cancer. She died July 12, 1956, and was then fifty-five years old.
Subject to the right of the use of the apartment and furniture free of expense by the husband during his lifetime as hereinbefore provided, the will gives the furniture to Elaine. The residue of the estate is given equally to the nieces Elaine Christensen, Kathleen Platkowski, and Beverly Borremans, and nephews Robert Fellows and Henry Fellows, Jr.
The legal principles governing the requirements of evidence sufficient to establish undue influence are well known. Within a year we reviewed them in Estate of Fuller (1957), 275 Wis. 1, 81 N.W.2d 64, in which there, too, an effort was made by contestants to interpret acts of kindness as schemes to warp the will of a dying woman.
Findings of the trial court must be affirmed unless contrary to the great weight and clear preponderance of the evidence. Undue influence is not to be proved but by clear, convincing, and satisfactory evidence. Estate of Fuller, supra, and cases there cited at page 5. Credibility of witnesses, the weight to be given their testimony, and inferences to be drawn from the evidence are functions of the trial court.
The trial court in the present instance filed a written decision in which he stated that the contesting parties had almost forgotten the idea that Mrs. Vickman had an inherent right to make a will and dispose of property as her sound mind dictated. We quote from the court's decision:
"There isn't one bit of evidence that Alma Vickman was incompetent nor unquestionably subject to undue influence, on the day the will was executed nor on any day prior thereto.
"There wasn't any medical testimony nor testimony from any lay witnesses that would convince the writer that Alma was unquestionably subject to undue influence.
"In the same way I am constrained to hold that the result does not clearly appear to be the effect of supposed influence."
The court made findings of fact that the will was executed in accordance with law; that there was no evidence produced at the trial of mental incompetency; and that Alma Vickman was not a person subject to undue influence. Its order carried out these findings by admitting the will to probate.
The appellant's entire case rests upon the repeated allegation by contestant that someone had poisoned Mrs. Vickman's mind before she made her will and had become convinced that Mr. Vickman was a moral degenerate and a depraved person. Wherefore she turned upon him and deprived him of his just share in his wife's estate. This is based on an inference derived from the direction in the will forfeiting the apartment if John shall have anyone come to live with him. Appellant construes this to mean that slander has deceived his wife by convincing her that Vickman's character disposed him to take a mistress.
Here is that portion of Mrs. Vickman's will which refers to her husband:
"I provide that my husband, John Vickman, shall have the right to live in the lower apartment at 1888 Shawano avenue, Green Bay, Wisconsin, and the right to use my household furniture and goods while living there, for the rest of his life, without the necessity of paying any rent therefor or real-estate taxes thereon or to pay for the upkeep of said place. If my said husband shall cease to live at said apartment his right in the said apartment, furniture, and household goods shall cease; and shall also cease if my said husband shall remarry or have anyone come to live with him."
When testatrix made her will she was fifty-five years old. Mr. Vickman had been married to her for twenty years and he was now sixty-five years of age. For many years he had been a victim of arthritis. Counsel is unsuccessful in inducing us to believe that the expression of this bequest manifests Mrs. Vickman's opinion that her arthritic old spouse is prone to pass his declining years in romantic adventure in Mrs. Vickman's apartment with a concubine.
The appeal to morality is diminished even more when we observe that the consequences to Mr. Vickman are exactly the same, according to the will, whether he takes a wife or a paramour. In counsel's interpretation of the will, Mrs. Vickman disapproves one as much as the other. So we discard appellant's argument that undue influence had created in Mrs. Vickman's mind a belief in her husband's depravity. We see, simply, one more example of the tenacious grip of the dead hand.
In our own search of the record we found only one of the four essentials which appellant must establish by clear and convincing evidence, — that of opportunity to exercise influence and accomplish a wrongful purpose.
The trial court's findings of fact accord with our own view of the evidence. They are not contrary to the great weight and clear preponderance of the evidence. The order admitting the will should be affirmed.
By the Court. — Order affirmed.