Opinion
January 11, 1950 —
February 7, 1950.
APPEAL from a judgment of the county court of Milwaukee county: F. W. BUCKLIN, Judge, Presiding. Affirmed.
Florian W. Kern of Milwaukee, for the appellant.
For the respondents there was a brief by Gold McCann, and oral argument by Richard A. McDermott, all of Milwaukee.
Appellant is proponent of an instrument purporting to be the last will and testament of Pelagia Ratkowski, deceased. Respondents, who objected to admission of the will because its execution was procured by undue influence, are, with proponent, the heirs of the deceased.
After trial the court held the will was the product of undue influence and denied admission. From that judgment this appeal is taken.
Pelagia Ratkowski died May 3, 1948, at the age of eighty-six years. The instrument offered for probate was executed October 29, 1935, in the presence of three witnesses. The will bequeathed the sum of $100 to each of seven children and the rest, residue, and remainder to Frank, the proponent.
Six of the objectors are surviving children; the others are children of a son, John, who preceded the testatrix in death.
The trial court found that Pelagia Ratkowski, on October 29, 1935, and for some time prior thereto, was and had been a person subject to undue influence by Frank Ratkowski; that Frank Ratkowski had, for many years prior to October 29, 1935, ample opportunity to exercise undue influence upon Pelagia Ratkowski to his benefit and to the detriment of other children of Pelagia Ratkowski; that Frank Ratkowski was of a disposition to wrongfully influence Pelagia Ratkowski; that the instrument itself favored Frank Ratkowski beyond all reason, and it provided for an unnatural disposition of the property of Pelagia Ratkowski.
The court's findings contain the elements necessary to establish undue influence. Will of Raasch (1939), 230 Wis. 548, 284 N.W. 571. If the evidence supports the findings, the judgment must be affirmed.
The record discloses that Pelagia Ratkowski and her husband lived with her son, Steve, from 1922 to 1926. In 1926 Pelagia's husband died. She continued to live with Steve until 1928 at which time Frank prevailed upon her to go to his home to care for his ailing wife and three small children. Frank's first wife died. Shortly thereafter he married his present wife, Regina.
During the years of Pelagia Ratkowski's life in Frank's home she was accompanied by Frank or Regina, or both, whenever she left the home, and whenever any of the other children came to visit their mother at Frank's home he or Regina visited with them. They testified that never were they permitted to be alone with their mother.
Pelagia Ratkowski owned a mortgage on a theater, title to which she had acquired at sheriff's sale. In January, 1946, she realized approximately $18,000 from the sale of this property. All of this money was taken by Frank and invested in bonds in the names of himself and Regina. He at first testified that this was because he had advanced money to his mother; later he claimed that some of it was for room and board.
Frank or Regina, or both, accompanied the mother to the attorney's office at any time that she had business to transact, and when the will was executed Frank drove his mother and Regina to the building and waited in the car while they went up to the office. Regina waited in the outer office.
Mrs. Ratkowski had a limited knowledge of the English language and probably could not read English at all. One of the witnesses to the execution of the will testified that the will was not read to Mrs. Ratkowski in her presence, but that she was asked if it was her last will and "is this the way you want it," and that to all questions put to her she merely answered "Yes."
No purpose would be served by recital of more of the detailed evidence. The testimony viewed in its entirety amply supports the trial court's conclusions.
By the Court. — Judgment affirmed.