Opinion
January 17, 1949. —
February 15, 1949.
APPEAL from a judgment of the county court of Chippewa county: ORRIN H. LARRABEE, Judge. Affirmed.
For the appellant there was a brief by Ronald F. North of Chippewa Falls, attorney, and Ramsdell King of Eau Claire of counsel, and oral argument by Mr. George Y. King and Mr. North.
For the respondents there was a brief by Stafford Stafford, attorneys, and I. E. Rasmus, guardian ad litem, and oral argument by Mr. Harold E. Stafford and Mr. Henry Christoffersen, all of Chippewa Falls.
The will of Henry F. Kramer, deceased, was presented for probate on September 8, 1947, by Elizabeth Budge, a sister. Objections were filed by Esther M. Hawley, a niece, and by Ingolf E. Rasmus, guardian ad litem for George F. Kramer, Mary S. Kramer, and Edward Fenske, incompetents. Proponent appeals from a judgment dated January 22, 1948, disallowing the will on the ground it was the result of undue influence exercised upon testator by proponent.
On December 4, 1946, Henry Kramer was a farmer sixty-five years of age, a widower, who lived alone upon a farm owned by him in the town of Eagle Point in Chippewa county, Wisconsin. For twelve or thirteen years he had suffered from seizures that were only identified in the record as "fainting spells." On said date while filling a lamp he accidentally saturated his clothing with kerosene, presumably during one of his seizures. The next day he was picked up by one of his neighbors while walking along the highway some distance from his home. He was taken to the hospital at Chippewa Falls where he remained until January 14, 1947. He had no recollection of the accident or how he arrived at the hospital. His skin was severely burned from contact with the kerosene.
At that time and on the date of his death on September 6, 1947, his heirs were two sisters, a brother, two nephews and a niece, who were the children of deceased sisters. His brother, one of his sisters, and one of the nephews were insane. The other sister, Mrs. Elizabeth Budge, resided in Chippewa Falls. The relations between Henry Kramer and his sister Mrs. Budge were strained and they had scarcely spoken to each other for a period of eighteen years. Following the accident Mrs. Budge visited him at the hospital and assisted in caring for him.
The day following the accident Mr. Kramer delivered certain keys and about $100 in cash to Cyril Rada. He requested that Rada and George Parkhurst, who had been friendly to him, should see to the payment of his hospital bills and assist him in the handling of his business affairs. On December 17th, Mr. Kramer had a friend write identical letters to Rada and Parkhurst asking each of them to bring in his clothes, money, keys, and any mail he had received. The money had already been expended for ambulance and hospital services.
On December 20, 1946, he signed an informal letter to Cyril Rada, authorizing him to handle his personal and financial affairs. On that date Rada consulted Henry Christoffersen, a lawyer at Chippewa Falls, Wisconsin, and requested him to call at the hospital for the purpose of drafting a will for Henry Kramer. On the same day another friend directed Ronald F. North, also an attorney at Chippewa Falls, to call on Mr. Kramer. Mr. North visited the hospital on December 20th and drafted a power of attorney naming Elizabeth Budge as Kramer's attorney in fact. This was properly executed by Mr. Kramer. Mr. Christoffersen was told that his services were not required when he came to the hospital the next day.
On December 22d, Mr. North drafted a will for Henry Kramer under the terms of which all of his property was devised and bequeathed to Elizabeth Budge, and she was also named as executrix without bond.
On December 30, 1946, Henry Kramer executed a document prepared by Mr. North which was designated a "Deed of Gift." This document transferred to Mrs. Budge the title to four government bonds valued at approximately $4,000.
On May 22, 1947, Mr. Kramer was the owner of both common and preferred stock in the Farmers Store Company at Bloomer, Wisconsin, the common stock having a par value of $1,230 and the preferred stock having a par value of $800. On that date Mr. Kramer, Mrs. Budge, and a Mr. Mason called at the office of the Farmers Store Company where Mr. Kramer asked that the stock certificates be reissued to himself and Mrs. Budge as joint tenants. He had lost stock certificates representing $370 in common stock and $600 in preferred stock. The balance was reissued to Henry Kramer and Elizabeth Budge on that date, and the stock represented by the lost certificates was so transferred on June 20, 1947, after the execution and filing of an indemnity bond.
After leaving the hospital on January 14, 1947, Mr. Kramer resided with his sister Elizabeth Budge at her home in Chippewa Falls. His account at a Chippewa Falls bank was made a joint account with Mrs. Budge and both of them were authorized to draw checks thereon. Most of the checks were drawn by Mrs. Budge. On April 22, 1947, he had a slight stroke. After a further stroke on August 30, 1947, Kramer was taken to a hospital at Eau Claire, where he died on September 6, 1947.
After the hearing in this matter the court made the following findings of fact and conclusions of law:
"Findings of Fact.
"1. That said instrument was duly executed by the said Henry F. Kramer, deceased as his last will and testament in the manner provided by law.
"2. That at the time of the execution of said instrument, the said Henry F. Kramer was of sound mind and had sufficient mental capacity to make a will.
"3. That the instrument here propounded as the last will and testament of Henry F. Kramer was executed by him while he was subject to, and as the result of, undue influence exercised upon the said Henry F. Kramer by Elizabeth Budge.
"4. That said instrument does not express the desires of Henry F. Kramer as to the disposition of his property.
"And I find as
"Conclusions of Law.
"1. That Elizabeth Budge, the proponent of said will is entitled to judgment dismissing objections Nos. 1 and 2 pursuant to the foregoing findings of fact; and
"2. That Esther Hawley, the contestant herein, is entitled to judgment sustaining her objection No. 3 pursuant to the foregoing findings of fact."
The law relating to undue influence in will cases is well settled in Wisconsin, both as to the elements necessary to establish it and as to the burden of proof. Will of Faulks (1945), 246 Wis. 319, 17 N.W.2d 423; Will of Sowka (1945), 247 Wis. 498, 19 N.W.2d 898; Will of Lee (1946), 249 Wis. 59, 23 N.W.2d 405; Will of Hickey (1948), 252 Wis. 542, 32 N.W.2d 232.
The findings of the trial court as to the existence of the elements necessary to establish undue influence in procuring a will are not ordinarily disturbed upon appeal unless against the great weight and clear preponderance of the evidence. Will of Sowka, supra; Will of Lee, supra.
The decision of the case therefore involves only questions of fact. Many of the details are not given in the statement of facts herein. We feel no useful purpose would be served by further detail. However, we have carefully examined the record and the briefs, and listened to the arguments of counsel, and it is our conclusion that the findings of the trial court are amply sustained.
By the Court. — Judgment affirmed.