Home/Wisconsin Supreme Court/Estate of Maxcy v. Sawtelle

Estate of Maxcy v. Sawtelle

54 N.W.2d 194, 262 Wis. 89, 1952 Wisc. LEXIS 346
CourtWisconsin Supreme Court
DecidedJune 3, 1952
StatusPublished

This text of 54 N.W.2d 194 (Estate of Maxcy v. Sawtelle) 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
Estate of Maxcy v. Sawtelle, 54 N.W.2d 194, 262 Wis. 89, 1952 Wisc. LEXIS 346 (Wis. 1952).

Opinion

Gehl, J.

The facts, an analysis of the testimony and the conclusions, the latter of which we adopt as expressing our own, are so well stated in the memorandum opinion of the learned trial judge, that we insert it here. It is as follows:

*91 “The personal representative of the estate objected to the allowance of the claim upon the grounds that the instrument was not executed and delivered by the deceased; that if it was executed by the deceased it was materially altered without the assent of the deceased, and that if executed by the deceased the instrument is void for want of consideration.
“It is admitted in the brief on behalf of the claimant that he has the burden of proof to show by a preponderance of the credible evidence the execution, delivery, and consideration of the instrument.
“The original instrument was produced upon the trial and is admitted to bear the genuine signature of Isabel T. Maxcy.
“The instrument is written upon a printed receipt form upon which the words ‘Received from’ were never deleted or canceled.
“All of the writing on the instrument appears in the handwriting of claimant except the signature ‘Isabel T. Maxcy.’
“All of the writing thereon is in lead pencil.
“The instrument is not in the usual and customary form of a promissory note, in which the name of the payee follows the promise to pay, and precedes the amount of-the note.
“It is unusual to put the name of the signer of the note in the body thereof, and in this connection it is noted that in the body of the instrument it is ‘Mrs. Isabel T. Maxcy,’ while on the bottom of the note, where it is signed by her, it is ‘Isabel T. Maxcy.’
“It appears upon the face of the note that there was some overwriting noticeably the lower part of the ‘1’ of ‘Isabel’ and the lower part of the ‘T’ of her initial, also the letters ‘x,’ ‘c,’ and ‘y’ of ‘Maxcy,’ and the letter ‘p’ of ‘promise,’ also the cross on the letter ‘T’ at the beginning of the third line, and likewise beginning of the fourth line and then also in the word ‘five’ near the end of the fourth line.
“Although the instrument is claimed to have been written by the claimant at the maker’s dictation, it is evident from an inspection of the instrument that it could have been composed only by one who was looking at the form at the time.
“The circumstances surrounding the making of this instrument, as testified to by the claimant, are unusually casual and informal considering the amount and importance of the document. According to claimant’t [sic] testimony no one was present except the testatrix and the claimant at the time *92 this instrument was executed; there is no evidence that it was ever exhibited to her thereafter, or ever exhibited to and acknowledged by her in the presence of any other person.
“For some reason, not expressly stated, on January 9, 1950,- the instrument was submitted by the claimant to the firm of Tyrrell and Doud, handwriting and questioned-document experts, of Milwaukee, who rendered him a written report. This report has not been received in evidence. Mr. Doud was called as a witness at the trial by the estate. The claimant offered a portion of the report in connection with his cross-examination of Mr. Doud, to which the estate objected unless the whole report was put in evidence. The objection was sustained by the court. However, it does appear in the evidence that the report was not favorable.
“Subsequently the claimant submitted the instrument to Mr. Schwartz of Chicago, who was produced as a witness at the trial, and testified for the claimant. The estate also had the instrument examined by Mr. Walter of Chicago. The instrument had been filed with the register in probate, pursuant to stipulation of the parties, in connection with deposition taken before the trial, and upon application the court directed the register in probate to take the instrument in question to Chicago where it might be examined by Mr. Walter. The register in probate was accompanied by the attorney for the claimant and he was present at all examinations of the instrument made by Mr. Walter.
“Both Mr. Walter and Mr. Doud testified that there are residuals of prior writing disclosed by infrared photographs which were introduced in evidence. They both agree that the date was formerly 44 instead of 46 and that there were other evidences of such residuals in the body of the instrument. Several residuals appear in the line ending with the printed word ‘Dollars.’ According to Mr. Doud there is evidence of the word ‘no’ above the word ‘and’ in said line, as well as other lines indicated in red upon objector’s exhibit ‘MMMM.’ Mr. Walter also finds residuals in the line ending at the printed word ‘dollars,’ including the word ‘no’ or the word ‘oo’ over the word ‘and.’
“The red marks upon the exhibit prepared by Mr. Doud indicate that there are evidences of prior writings in addition to the two mentioned consisting of a half circle to the left of
*93

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Bluebook (online)
54 N.W.2d 194, 262 Wis. 89, 1952 Wisc. LEXIS 346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-maxcy-v-sawtelle-wis-1952.