Opinion
April 14, 1948. —
May 11, 1948.
APPEAL from a judgment of the county court of Brown county: GROVER M. STAPLETON, Judge, Presiding. Affirmed.
For the appellant there were briefs by Kaftan, Rahr Kaftan and Fred Will, all of Green Bay, and oral argument by J. Robert Kaftan.
For the respondents there was a brief by Martin, Clifford, Dilweg, Warne Duffy of Green Bay, and oral argument by G.F. Clifford.
The will of Martha Hickey was presented for probate on January 30, 1947, by William Hickey, a brother. Other brothers and a sister of the deceased, namely, John, Fred, and George Hickey, and Elsie Flaherty, contested. Judgment was entered October 24, 1947, disallowing the will on the ground that it was the result of undue influence by proponent and his wife. Proponent appeals.
The testatrix, Martha Hickey, an unmarried woman, died January 20, 1947. She was then forty-four years old and blind and had been bedridden for about nine years. She was one of seven children of Mr. and Mrs. John Hickey, Sr. The other children are George, William, John, Fred, Elsie, and Elizabeth, now deceased. Elizabeth was blind from infancy. Martha became blind at the age of seven when she was in the second grade. The two blind sisters shared the same room in the family home at Green Bay. When George was married in 1923 he and his wife, Alice, came to live in the family home, where they continued to reside for more than twenty-five years. Mrs. John Hickey, Sr., died in 1931. John Hickey, Sr., died in 1935. By his will he left the homestead to his two blind daughters and also a more substantial sum of money than he left the other children. He appointed his daughter Elsie and his daughter-in-law Alice, George's wife, to administer his estate.
From the time George and Alice first moved into the home they had the care of the two blind sisters. During the years that Martha was helpless Elizabeth was able to help some with her care. Martha was particularly disagreeable in temperament. As the trial judge put it, "Martha's mentality seemed to be static since afflicted with blindness. She gained no knowledge as she grew older and matured. The record fails to show that she had any interests or hobbies." There is evidence that most of the members of the family helped George and his wife to some extent. They called at the home at various times and occasionally assisted in the care of their sisters. It appears that William and his wife, Theresa, however, had seldom visited at the Hickey homestead, although they lived only a few blocks away. The trial judge in his opinion said that they had not been in the homestead for about five years prior to 1946. Mrs. William Hickey said she did not go there because the home was dirty. There was no such complaint from any of the other members of the family. They all agreed that Alice was a good housekeeper and that she gave the sisters good care. Elsie, the other sister, testified that when she was helping at the family home in April, 1946, she observed Martha had no bedsores.
Elizabeth, the older of the two blind sisters, died April 4, 1946. Her half interest in the home and her interest in the money her father had left for her and Martha was divided equally among her brothers and sisters. Martha thus had a seven-twelfths interest in the home, and each of the other children had a one-twelfth interest.
Because Martha was especially difficult to handle and because Alice Hickey was worn out from the many years of caring for the two invalids, she and George requested that they be relieved of the care of Martha. Thereupon William and Theresa moved into the home. George and Alice continued to live there, occupying the back part of the house. William and Theresa occupied the front part, where Martha's bedroom was.
At the time of Elizabeth's death there was considerable family discussion about putting Martha in an institution. At first Martha seemed amenable to the idea, but about the time William and Theresa moved in she expressed a desire to remain at home. Shortly after moving in William Hickey petitioned the county court that he be appointed guardian of Martha. All of the other Hickey children opposed his appointment. Because Martha seemed to desire his appointment, the county court, Judge McCOMB, presiding, appointed William to be Martha's guardian for the reason that she was bedridden and blind. She was not considered to be mentally incompetent.
The testimony is that William and Theresa gave Martha good care and that she was happy with them. There is some testimony that she had not had such care from George and Alice. This testimony came from the William Hickeys and neighbors who had not visited Martha while she was cared for by the George Hickeys. It was only after the William Hickeys moved in that Martha expressed any dissatisfaction with the treatment she had previously received.
Opposition to the appointment of William as guardian continued to be expressed by the family. There is evidence that the William Hickeys tried to get the George Hickeys to leave the home. Services to their part of the house were interrupted. The door between the two apartments was kept locked. The gas to the George Hickeys apartment was cut off, and the grates were removed from the stove that supplied the heat to that apartment.
There are conflicting stories in the record about the mother having given money to Elizabeth before the mother's death and about money being stolen from the sisters by other members of the family.
A determined effort was made by Judge McCOMB and the attorneys to restore peace and harmony among the members of the Hickey family. After a series of conferences in December, 1946, it was decided that an agreement would be entered into providing that the other brothers and sisters would sell their interests in the home to Martha; that William would be removed as guardian, with a bank being named as guardian instead; that Martha would rent the home for per month; that with that income she would be kept in an institution; and that she would agree not to dispose of the real estate by will or gift but would permit it to pass under the laws governing intestacy. This agreement was not executed because William would not sign it. He said Martha did not want to sign it.
Sometime in January, 1947, Martha became seriously iII. The brothers and sister later learned she had Bright's disease. On January 15th, William notified Judge McCOMB of her illness and wanted him to notify the relatives. On January 17, 1947, the will in question was executed. The attorneys who had previously handled Martha's affairs were not available, and Mrs. William Hickey called another attorney who was a stranger to the family. The attorney conferred with Judge McCOMB and a doctor before he went to the home and was assured that Martha was mentally competent. The attorney and a visiting nurse were the only witnesses to the drawing of the will. Martha expressed her desire to leave all of her property to Theresa, William's wife, since she had given her good care. At the suggestion of the attorney, she decided to leave it to her brother William: instead. The record shows that Martha knew what her property was, who her relatives were, and that she said it was her desire and no one else's that she make a will.
The trial court disallowed the will because the facts demonstrated that: (a) Martha Hickey was a person unquestionably subject to undue influence; (b) William and Theresa Hickey had an exclusive opportunity to exercise such influence and effect the wrongful purpose; (c) that William and Theresa Hickey were both disposed to exercise influence unduly for the purpose of procuring an improper favor; and (d) Martha Hickey's will, drawn January 17, 1947, clearly appears to be the effect of the undue influence of William and Theresa Hickey.
The elements necessary to establish undue influence in the execution of a will are susceptibility of the testator to influence, the disposition and opportunity to exercise influence, and a result indicating the exercise of undue influence by the person so disposed and so situated. Ball v. Boston (1913), 153 Wis. 27, 141 N.W. 8; Will of Nachtsheim (1918), 166 Wis. 556, 164 N.W. 997; Will of Link (1930), 202 Wis. 1, 231 N.W. 177; Will of Schaefer (1932), 207 Wis. 404, 241 N.W. 382; Will of Leisch (1936), 221 Wis. 641, 267 N.W. 268; Will of Stanley (1937), 226 Wis. 354, 276 N.W. 353; Will of Raasch (1939), 230 Wis. 548, 284 N.W. 571.
The trial court concluded that all essential elements were present in this case. The evidence supports that conclusion. It does positively appear that Martha was an individual susceptible to undue influence. Her physical condition and her lack of interests made her almost completely dependent on those who cared for her. Members of the family recognized that she was particularly susceptible to influence. They made an effort to bring about the forming of a contract that would prevent any member of the family from exercising such influence for selfish benefit. The proposed contract would have permitted Martha's property to descend in accordance with the provisions of the statute for intestacy. This arrangement, thought advisable by all the other members of the family, was prevented by William, who was at that time caring for Martha. The memorandum opinion of the trial court recites, "My conclusion is that any one close to Martha, if aggressive could have unduly influenced her to do as the aggressor's will dictated."
It clearly appears from the facts that the disposition existed in appellant and his wife to use undue influence in securing a will in their favor. They developed in Martha, by more or less artful methods, a conviction that they were her protectors and friends. This new attitude of interest in Martha came after years of indifference during which a considerable burden was borne by other members of the family who were excluded as beneficiaries. While William and his wife cared for Martha, there was developed in her, a deep hatred for George and Alice, who, it will be remembered, cared for her for many years. William and Theresa did everything possible to convince Martha that she had been neglected if not abused by George and Alice. There was testimony bearing upon the way George and Alice had cared for Martha and Elizabeth. The court was convinced that no serious neglect had existed and summed up that phase of the case by referring to the years of service rendered by George and Alice this way: ". . . in such period there was never a complaint filed, nor an investigation asked by neighbors, or a welfare agency, of any neglect by Alice. Alice labored apparently willingly and cheerfully, caring for both Elizabeth and Martha. John Hickey, Sr.'s, mute testimony of appointing Alice a joint executrix of his will, expresses his appreciation and his confidence in her services. It negatives any neglect. . . . A physical fact that cannot be ignored in this regard, is the fact that although Martha weighed 180 pounds, and was bedfast for nine years, she never had a bedsore. Surely Martha wasn't neglected." The deliberate efforts made by William and his wife to alienate Martha's affections from the rest of the family do not evince a brotherly, kindly, and benevolent purpose; they evince a disposition to exercise undue influence for personal benefit.
It is equally well established that the opportunity for the appellant to exercise the undue influence existed. He and his wife so managed affairs that the deceased was within their control. They excluded other members of the family from the part of the house occupied by Martha. They barred George and Alice from access to Martha, and told them to stay away.
That the will as executed was the result of the influence exerted by William and his wife is also evident. While it does not appear that its actual execution was improper, it does appear that the testatrix's free will and independent action had previously been destroyed by the moral coercion of William and his wife, accomplished by segregating her from and prejudicing her against the other members of the family, toward whom she had shown no dislike before William and his wife came to care for her.
All the elements necessary to constitute undue influence appear from the evidence accepted by the trial court as controlling, and the judgment must be affirmed.
By the Court. — Judgment affirmed.