Dokken v. Femrite

102 N.W.2d 217, 10 Wis. 2d 21, 1960 Wisc. LEXIS 358
CourtWisconsin Supreme Court
DecidedApril 5, 1960
StatusPublished
Cited by3 cases

This text of 102 N.W.2d 217 (Dokken v. Femrite) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dokken v. Femrite, 102 N.W.2d 217, 10 Wis. 2d 21, 1960 Wisc. LEXIS 358 (Wis. 1960).

Opinion

Currie, J.

The appellant objectors raise the following two issues on this appeal:

(1) At the time the 1943 will was executed was testatrix suffering from an insane delusion which materially affected the making of such will ?

(2) Was the will procured through undue influence?

The husband of Mrs. Quam, the testatrix, had predeceased her on February 24, 1941, and she was survived by no children. Her next of kin consisted of the two Dokken brothers, who were sons of her deceased sister Julia; Clifford Carl Lee and Cordelia Lee Beattie, children of her deceased brother Knudt; and Winston Lee and Jane Lee Hilton, children of the deceased brother Isaac. Two sisters, Sadie and Mary, had predeceased testatrix leaving no issue.

[24]*24For many years prior to their respective deaths Mrs. Quam and her husband had resided in the city of Madison. On September 15, 1938, the testatrix had executed a will in which she bequeathed $200 to a Norwegian Lutheran Church at Daleyville in which she had been baptized and confirmed, and all of the residue she bequeathed in equal shares to eight people. These eight consisted of her husband, her sister, Mary, who was then living, and the six nephews and nieces who survived her. The record does not disclose what separate estate she then owned but it must have been very small. This is because she received approximately $15,000 of personalty and the homestead appraised at $4,000 as principal legatee under her husband’s will. All of the estate she possessed at time of death is traceable to these assets acquired under her husband’s will.

The lawyers who handled the probate of the husband’s estate were Sachtjen & Braathen, a Madison law firm consisting of Herman W. Sachtjen, who later became circuit judge, and Sverre Braathen. Martin Haug, the executor, became worried over the way Mrs. Quam, the widow, was handling money matters and consulted with Attorney Sacht-jen about having her placed under guardianship. The nephew, Stanley Dokken, who was the only next of kin residing in Dane county, was also consulted, but he refused Haug’s request to sign the petition for guardianship. Dokken testified that he also had a conference with Attorney Braathen and informed the latter that “he wouldn’t have any part of a guardianship petition.” Haug then signed the petition for guardianship, which petition did not allege that Mrs. Quam was mentally incompetent. The sole ground stated in the petition for appointment of a guardian was that “she was unable to care for the same [her property] on account of extreme old age and inability to handle her money and property.” The petition was dated and filed [25]*25November 25, 1941, and on the same day Mrs. Quam appeared in open court and consented to the appointment of a guardian. By order also dated November 25, 1941, the county court appointed the Madison Trust Company (later the Madison Bank & Trust Company) as guardian. Such guardianship continued as long as Mrs. Quam lived.

On October 15, 1942, Attorney Lester C. Lee, of Madison, received a telephone call at his office from Dr. Puls, pastor of Luther Memorial Church. Dr. Puls was then at the residence of Mrs. Quam and he informed Lee that Mrs. Quam desired to confer with Lee with respect to drafting a will. Up until that time Lee had performed no legal services for Mrs. Quam and was not acquainted with her except that he had seen her in attendance at Luther Memorial Church. During the years 1942 and 1943, Mrs. Quam frequently had been at the office of Sachtjen & Braathen consulting with them with respect to the guardianship. The Quam home was some 18 blocks from Lee’s office. Upon Lee's arriving at the Quam home, Dr. Puls introduced him to Mrs. Quam. Lee then held a conference of some twenty minutes to one-half-hour duration with her in order to gather information to draft her will. He saw no other person there but Dr. Puls. Dr. Puls was not present in the same room with Lee and Mrs. Quam during such conference.

During the conference Lee asked Mrs. Quam questions as to who her relatives were and what her property consisted of, and he made a memorandum of the data she supplied, including her desired testamentary disposition of her estate. Such memorandum is one of the exhibits in the record. The one inaccuracy in the data supplied by her was that she had a brother Edward, when in fact she had never had a brother by that name. However, she did not include Edward among the beneficiaries to whom she desired to [26]*26bequeath her estate, and Lee assumed Edward was dead. Mrs. Quam’s age does not appear in the record except that she had made statements for several years about the time of such conference that she was seventy-eight. Her personal property held in the guardianship at this time amounted to approximately $17,000. There was some appreciation in value thereafter, and before her death in 1957 the house had been sold by the guardian. As a result the total value of her estate at time of death was approximately $25,000.

After returning to his office, Lee drafted a will in accordance with Mrs. Quam’s directions which is identical to the instrument propounded as her last will in the instant proceeding except for the date. Lee had arranged with Mrs. Quam to come to his office to sign the will but she did not come. The matter stayed in abeyance until shortly prior to March 18, 1943. Arrangements were then made by Lee for Mrs. Quam to come to the office of Dr. Vingom, a physician who had been treating her, and there sign her will on March 18, 1943. The record is silent as to who contacted Lee and requested that such arrangements be made. Lee retyped the will as previously drafted by him in order to change the date from October, 1942, to March, 1943, and he and Mrs. Quam met at Dr. Vingom’s office on March 18, 1943. Lee read the will to Mrs. Quam and she then executed the same in the presence of the three attesting witnesses: Lee, Vin-gom, and Vingom’s secretary. Lee took the executed will with him and deposited it with the register in probate of Dane county.

An unexplained and puzzling circumstance is the fact that on June 17, 1943, Mrs. Quam wrote the following letter to Attorney Sachtjen:

“I would like very much for you to get from the Madison Trust Co. an itemized list of all my possessions there, and also a copy of my last will of 1938 which you have, because [27]*27I want these in making out a new will. Kindly send these at your earliest convenience. And oblige.”

The firm of Sachtjen & Braathen then had Mrs. Quam’s 1938 will in their possession and they made a copy of the same and mailed it to her on June 21, 1943, together with a copy of the guardianship inventory. However, nothing more was heard from her about her intention to draft another will.

Judge Sachtjen, Braathen, a neighbor, Fred Hall, and Stanley Dokken all testified that in their opinion Mrs. Quam did not possess on or about March 18, 1943, sufficient mental capacity to make a will. On the other hand, Lee and Dr. Vingom testified that she did. It was on this disputed testimony that the learned trial court determined and found that she did possess testamentary capacity at the time the will was executed. It is unnecessary to review the evidence bearing on this, because the appellants base their contention on this appeal on the issue of mental capacity on the ground that Mrs. Quam was suffering from an insane delusion which materially affected the making of the will.

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Related

In Re Estate of Evans
265 N.W.2d 529 (Wisconsin Supreme Court, 1978)
Kuehn v. Kuehn
104 N.W.2d 138 (Wisconsin Supreme Court, 1960)
Fillar v. Estate of Fillar
102 N.W.2d 210 (Wisconsin Supreme Court, 1960)

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Bluebook (online)
102 N.W.2d 217, 10 Wis. 2d 21, 1960 Wisc. LEXIS 358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dokken-v-femrite-wis-1960.