Opinion
December 1, 1953 —
December 30, 1953.
APPEAL from a judgment of the county court of Brown county: ARCHIE McCOMB, Judge. Affirmed.
For the appellants there were briefs by Kaftan, Kaftan Kaftan of Green Bay, and oral argument by J. Robert Kaftan and Fred F. Kaftan.
For the respondents there was a brief by Warne, Duffy Dewane of Green Bay, and oral argument by L. O. Warne.
Appellants appeal from a judgment admitting to probate a will executed by Charles Miller on September 24, 1951, which leaves $5,000 to appellants and the residue of the estate to respondents. Appellants had propounded a copy of a missing will executed August 28, 1951, which left Miller's entire state to them and appointed them executors. The estate is worth more than $100,000. The judgment allowed costs to appellants to be paid out of the estate as permitted by sec. 324.12, Stats. Respondents have moved to review such allowance. Respondents' brief exceeds 50 pages and they have applied for the allowance of full costs on account of it.
Charles Miller died November 17, 1951, at the age of eighty-five years. His nearest relatives were nieces and nephews. He was in close contact and on reasonably friendly terms with only one of these, his niece, the respondent Ida Schoen. On October 16, 1940, he executed a will by which he left all his estate to Ida and her husband, Frank Schoen. Mr. Miller was then a widower, living in a hotel. In 1941 he moved to an old-folks' home where he stayed until April, 1951, when he went to a hospital to have an operation for cancer of the bowel. When he was able to leave the hospital, April 29, 1951, he came to live with Mrs. Schoen who was then a widow. Her married son, Walter, lived near by and was frequently at his mother's home. According to his banker, his lawyer, and other witnesses, Miller was a miserly, suspicious, and generally unpleasant person. On the way from the hospital to Mrs. Schoen's he accused her of stealing $14 from him. He could not read and his only cultural accomplishment was the ability to sign his name. He objected strongly to paying Mrs. Schoen $55 per month for room and board but she would not take him for less. Mrs. Schoen was about seventy-five years old and shortly before August 27, 1951, she told him she could keep him no longer and he would have to find some other place to live. This appears to have upset and antagonized him and on the 27th he went to Attorney Dorschel, who had done work for him before, told him that he was going to commit suicide, and wanted to make a will. Mr. Dorschel did not think he ought to draw a will under the circumstances and attempted to dissuade Miller from the suicide. Miller left Dorschel and went to another attorney, Mr. Smith, whom he did not tell of his plan to commit suicide. He had Mr. Smith's son call Mrs. Schoen and inquire if she was still determined to have Miller leave her home. Mrs. Schoen repeated that she could not keep him longer, whereupon Miller had Smith draw a will which left his estate entirely to the appellants Cornelius and Agnes Van Hogen, whom he referred to as his good friends, and named them executors. The record substantiates the trial court's description of the Van Hogens as "people who were in no way related to him and who, as far as the record discloses, had done little for him, not that they had not been fairly kind to him but that opportunities did not present themselves to be very overly friendly with the deceased." Mr. Miller executed this will on the 28th and the next day, August 29th, he gave his keys and bankbook to Mrs. Van Hogen and then tried to drown himself in the river. He was rescued and taken to the hospital where he stayed three days.
When Miller left the hospital he returned to Mrs. Schoen's home and lived there till his death in November. Just before the suicide attempt Miller told his banker and business adviser, Mr. Carlson, that he had changed his will. A day or two after he left the hospital he came to Mr. Carlson and said that he had his right mind back and that he was going to change his will. He also went to the Van Hogens and took back the keys and bankbook.
On September 23d Walter Schoen came to his mother's home to take her and Mr. Miller to his house for dinner. Before leaving they sat in chairs on the lawn and visited. When it was time to go Mr. Miller could not get up without assistance. With the help of the others he got into Walter's automobile and kept the dinner engagement but the paralysis did not wear off and he never regained good use of his right arm and leg. It appears that this was a paralytic stroke. The Schoens did not get a doctor for him and he was practically bedridden from that time on, but they did engage a practical nurse whom he discharged because she cost too much, and they saw that he had the services of a visiting nurse.
The morning after the stroke, September 24th, Walter Schoen called Mr. Dorschel, whom Miller had often employed, and said that Miller wanted to see him for the purpose of making a will. Schoen also called Miller's regular doctor, who was not immediately available, and then he summoned his own doctor, Dr. Atkinson, not to treat Miller but to be a witness to the will. Mr. Dorschel came to Miller's room "somewhere after nine o'clock" in the morning. Miller greeted him and said he had been trying to get in touch with him. He told Dorschel that he had made a former will and knew he had made a mistake. He told Mr. Dorschel what he wanted and Mr. Dorschel went away and came back later with forms and prepared the will which the court later admitted to probate. When Dr. Atkinson arrived the doctor conversed with Mr. Miller, satisfied himself that Miller was competent, and the will was then executed by Miller making his mark and the lawyer and the doctor attesting it. No other people were present. Miller then told Attorney Dorschel that on the day he had come to Dorschel's office (the day Dorschel would not draw a will for him), he had made a will and had filed it with the court and he wanted Dorschel to withdraw it. He gave the court's receipt for the will to Dorschel who then withdrew the will, — filed in the county court August 28, 1951, — and returned it to Mr. Miller. Miller told Dorschel he was going to destroy it. This will was never seen again. The appellants have propounded a copy of it.
Charles Miller lived approximately two months after making this will. Mrs. Schoen did not welcome visitors to him and generally remained in the room when he had company. She interfered with Mrs. Van Hogen taking away Miller's bankbook which Miller tried to give her on one visit which she made to him.
Further facts will be referred to in the opinion.
There is not a great deal of conflict in the evidence concerning incidents and events. The dispute comes in the inferences to be drawn from them. Appellants submit that everything done by respondents during the days when Charles Miller lived in the Schoen home had the diabolical purpose of securing his fortune for themselves and to that end they kept him their mental and physical prisoner. For example, soon after Miller returned from the hospital, in the first week in September, Walter Schoen told the police that Miller was in no condition to drive his automobile, and the police persuaded Miller to give up his driver's license. Miller did not know of Walter's part in this. To appellants this transaction appears as cruelty to an old man whose only pleasure was to drive his automobile, maliciously done to separate him from his friends and to keep him in captivity. On the other hand, less partisan people might well conclude that relatives had a responsibility to the general public as well as to the individual to see that a man of eighty-five years, near death from cancer, and with demonstrated suicidal tendencies, did not pilot his car around the public streets. The trial court determined that the latter purpose was necessary, whether or not that was Walter's primary object. It appears that the close watch which the Schoens kept over Miller came after the execution of the will and that until his stroke he moved about freely, discussed his affairs with his banker, and announced his purpose of making a new will to replace the suicide one. Something of surveillance over a dying man, partially paralyzed and with suicidal tendencies, who is, after all, a relative, is not necessarily suspect.
As the trial court's function is to determine the facts and to weigh them, Will of Russell (1950), 257 Wis. 510, 44 N.W.2d 231, so, too, the inferences to be drawn from established facts are for the trier of the fact, in this case the trial court. Its findings in these respects should not be interfered with unless contrary to the great weight and clear preponderance of the evidence, and undue influence is not to be proved but by clear, convincing, and satisfactory evidence. Will of Schaefer (1932), 207 Wis. 404, 411, 412, 241 N.W. 382; Estate of Feeley (1948), 253 Wis. 204, 213, 33 N.W.2d 139. The written decision filed by the trial court shows how conscientiously it reviewed the evidence before reaching its conclusion, which it stated as findings of fact, that Charles Miller was not a person subject to undue influence nor was the will of September 24, 1951, the result of undue influence.
We conclude that there is no such preponderance of evidence in appellants' favor as will permit us to set aside the findings of fact by the learned trial court. Its judgment admitting the will to probate must be affirmed.
The trial court allowed the appellants their costs in propounding the will of August 28, 1951, to be paid by the estate, as permitted by sec. 324.12, Stats., reading:
" Costs in will contests. Costs shall not be awarded to an unsuccessful contestant of a will unless he is a special guardian appointed by the county or circuit judge, or is named as an executor in a paper propounded by him in good faith as the last will of the decedent."
Referring to appellants' attempt to prove the will of August 28th, the trial court found, "There is no question but what the will was propounded in good faith." The proponents of the August 28th will were the executors named in it and the issue of their good faith was for the court. We have no reason to question the court's determination and, good faith being found, the statute supports the court's allowance of costs. By the Court. — Respondents' motion to review the allowance of costs denied. Respondents' motion for cost of printing their entire brief granted. Judgment affirmed and cause remanded for further proceedings according to law.