Estate of Draheim

77 N.W.2d 422, 273 Wis. 189, 1956 Wisc. LEXIS 311

• Court: Wisconsin Supreme Court
• Decided: June 5, 1956
• Status: Published

Opinions

Gehl, J.

Albert Draheim died on December 12, 1952, leaving a will by the terms of which he left all his estate except $500 to his sister Paulina Hertzfeld. On December 18, 1952, Paulina and John N. Jaeckels, executor named in the will, petitioned the county court of Waupaca county for probate of the will. Hearing thereon was set for January 20, 1953. On January 19, 1953, objections to the probate of the will were filed by the heirs-at-law of the deceased. Paulina joined in these objections. The hearing on the petition and the objections was adjourned. Pending the adjourned hearing and on March 6, 1953, Paulina executed and filed a renunciation of the provisions made for her by the will. On the same day she and the other heirs-at-law of Albert Draheim filed a petition for administration of the estate as one intestate. The petition for probate of the will and the objections thereto were heard on March 18 and 19, 1953. Before a decision was reached and on April 29, 1953, Paulina, in writing on April 29, 1953, withdrew her objections to the will and asserted that she renewed her position as a petitioner seeking admission of the will to probate.

On July 1, 1953, the court entered an order admitting the will to probate. On September 9, 1953, Paulina repudiated the renunciation and joined with the objectors in taking appeal to this court. Upon the appeal the order admitting the will to probate was affirmed on October 5, 1954. Will of Draheim (1954), 267 Wis. 382, 66 N. W. (2d) 172.

After that, and for some strange reason, for the first time appeared the document which was executed on February 4, 1953, which forms the basis of this proceeding and which it seems to us was deliberately withheld pending the final determination of the issues made by the filing of objections to the probate of the will. It is recited therein that it is made to “effectuate a more fair and equitable distribution of the property of said Albert Draheim, deceased” than is made by the terms of his will; it is provided that Paulina shall have the residence of which the deceased died seized and 50 per cent of the remainder of the estate, a brother and another sister of the deceased shall each have one third of the balance, the children of a deceased' sister shall have one third, and that the estate is to be so divided whether the will be admitted to probate or not.

It is to be recalled that the signature of Paulina to this instrument was obtained after she had petitioned for the probate of the will and that subsequently, but before it was brought to light, she joined in filing objections to the probate of the will, filed a renunciation of the provisions made for her, joined in a petition for administration of the estate as intestate after having withdrawn her objections to the probate of the will, renounced her renunciation, and again asserted her rights as the practically sole beneficiary named in the will, and that the agreement was abandoned and did not appear until the contest had been heard and the will admitted to probate by the county court and that court’s action affirmed by this court.

It is surprising, if it did not occur, that when this strange document was finally presented to the court, the judge did not express his reaction as did Mr. Justice Black in his dissenting opinion in Mack v. Reo Motors (Mich. 1956), 76 N. W. (2d) 35, 42, and inquire, “What gives here?” Obviously the instrument was so drawn as to put the parties to it in a position, heads, we the other parties to the agreement win, tails, you Paulina — lose; if the will is admitted to probate we take nothing unless we produce the agreement, as a result of which you, Paulina, will take only half the estate and we take the balance; if we are successful in our attack upon the will you will take one quarter thereof, we will take the balance and there will be no need to produce the agreement. We consider that under the circumstances the act of withholding the agreement constitutes a fraud upon the court and that, therefore, and because of what we shall say with respect to the imposition upon Paulina, we should not enforce it.

It is not strange that Paulina, an elderly lady with no business experience, since adjudged an incompetent, who later was induced to go from one position to the other and then back again, was easily induced to join in the agreement which would “effectuate a more fair and equitable distribution of the property” as viewed from the standpoint of those who, for some reason satisfactory to the testator, had not been named in his will. It cannot be said that our conclusion that Paulina was induced to take the various steps which she did is not supported by the record. The undisputed facts present a picture which can represent nothing less than the result of some improper influence exercised upon her.

The question then arises, What can this court do about it? The answer is that under the circumstances we must, in the exercise of our broad powers of equity and in the interests of justice, do something about it, for we may not stand by and permit this lady, as well as the court, to be imposed upon as was intended in this case. We consider that the conduct of those who instigated and sought to carry into effect the plan which is here presented committed a fraud upon the court and an imposition upon Paulina, and that, therefore, we should do as the trial court did, though for another reason, refuse to enforce the agreement.

We should not close this opinion without making it clear that we do not intend hereby to suggest that any of the attorneys now interested in the case have been guilty of any conduct which might subject them to criticism.

By the Court. — Judgment affirmed.