Baker's Estate, In re

Citation50 Wis.2d 330,184 N.W.2d 72
Decision Date02 March 1971
Docket NumberNo. 101,101
PartiesIn re ESTATE of Harry A. BAKER, Deceased. FIRST NATIONAL BANK & TRUST CO. OF BELOIT, Exr., et al., Appellants, v. Flossie JOHNSON, Respondent.
CourtUnited States State Supreme Court of Wisconsin

On Sunday, October 29, 1967, at approximately 8 p.m., Harry A. Baker, then eighty-four years of age, executed a will consisting of two nominal specific bequests to the two descendants of his deceased half-brother, and the residue to the three children of his deceased brother.

Harry Baker died on March 11, 1969. After his will was filed, one Flossie Johnson filed another instrument dated October 30, 1967. This instrument (hereafter the codicil) was in the handwriting of Harry Baker, signed by him, and witnessed and subscribed by two neighbors, Sumner and Jean Jackson (husband and wife). This codicil devises Baker's motel to Flossie B. Johnson, the lessee of the motel.

The codicil clearly bears a date of October 28, 1967, the number '28' being crossed out and the number '30' inserted beneath it. The codicil is also notarized, although the date of notarization is not indicated on the document.

A hearing was held to determine the efficacy of the codicil, the only issue presented being the date of execution. The trial court determined that the codicil was duly executed according to law by Harry Baker on October 30, 1967, and was therefore 'a legally executed codicil to the will of said decedent, dated October 29, 1967.'

Frank Z. Kinast, Beloit, for executor.

Lawrence W. Rice, Beloit, for the Bakers and Hamilton.

William F. Donovan, Noll, Donovan & Bolgrien, Beloit, for respondent.

WILKIE, Justice.

All parties agree that the only issue presented by this appeal is whether the finding and judgment of the trial court that the date of execution of the codicil was October 30, 1967, is contrary to the great weight and clear preponderance of the evidence. 1

Viewing the evidence in the light most favorable to the finding made, there is no reason for us to reverse the trial court's decision.

At the trial the two attesting witnesses testified that they both saw the decedent affix his signature to the codicil, and that they then signed it in his presence and in the presence of each other; hence the requirements of secs. 238.06 and 990.01(47), Stats., were satisfied. This testimony is not contradicted. There is no contention that decedent was incompetent or that the codicil was the result of any undue influence. Therefore, the only issue before the trial court, as here, was the date of execution of the codicil.

Evidence relating to the date of execution is in some conflict, but the following evidence was elicited at trial:

October 28, 1967, was a Saturday; October 30, 1967, was Monday.

Sally Johnson, the daughter-in-law of Flossie Johnson, was present when the codicil was executed. She testified that the date of execution was Monday, October 30, 1967. She stated it was her usual routine to go to the motel every Monday morning to permit her mother-in-law to run errands and that she did so on the date in question, arriving at approximately 8 or 8:15 a.m.; that on the morning in question her mother-in-law called Mr. and Mrs. Sumner Jackson to the motel before she left to do her errands, although Sally Johnson could not say what time it was. As to the change of date of the codicil from October 28th to 30th, she testified:

'Harry looked at the calendar and we have this one from the First National Bank at the motel in the office, and it said on it the 28th and he looked over at the other calendar and he said, it is Monday. Because there is another calendar over on the other, just straight across,--he looked on it and said it is Monday, it can't be the 28th, and he struck it out.'

She stated that Flossie Johnson returned home around 12 or 12:30. Sally Johnson said she (Sally) was around the motel grounds on that morning, in the house and in and out of the motel frequently.

The two Jacksons, attesting witnesses, testified:

Jean Jackson said that she could not recall the date or the day of the week, but that the codicil was signed 'after 11:00 or around noon.' She remembered this because she was preparing lunch at the time she was called to go over to the motel.

Sumner Jackson, Jean Jackson's husband, stated that he could not state the date or day of week the instrument was executed. His only point of reference was that on Monday he would have taught from 10 a.m. to 11 a.m., on Saturday from 10 a.m. to 12 noon; hence he would have been home earlier on Monday than on Saturday. However, he also stated that the codicil could have been executed the week before, so far as his recollection was concerned.

Iva Jones Fewell, the notary who notarized the codicil, testified that on Monday, October 30, 1967, she was called from her office at the S & H Bus Company in Beloit where she was employed as a bookkeeper. A 'little old man,' 'quite elderly and quite shaky,' requested her to notarize a document which she identified as the codicil. He was accompanied by someone; whom she thought might have been a man; she could not identify him. She further testified that she had only recently received her notary's seal at that time; that she questioned the propriety of notarizing a document not signed in her presence; that the old man said 'this is a gift that I want someone to have and I want it notarized so it would be legal;' and that she then had the old man write his signature on another paper three times, compared these signatures with that on the document to be notarized, and then notarized it. She further testified that the date as it appeared on the codicil at the time of the hearing was exactly as it appeared when she notarized it. She was sure it was on Monday, October 30th, and not Saturday the 28th, because she...

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2 cases
  • McMillan's Estate, In re, 93
    • United States
    • United States State Supreme Court of Wisconsin
    • May 1, 1973
    ...of the evidence. That is the test on appeal. Estate of Velk (1972), 53 Wis.2d 500, 506, 192 N.W.2d 844. See also Estate of Baker (1971), 50 Wis.2d 330, 184 N.W.2d 72; Will of Dobson (1951), 258 Wis. 587, 590, 46 N.W.2d The judgment is affirmed. ...
  • Bender v. Lindhal, 94-3316
    • United States
    • Court of Appeals of Wisconsin
    • June 26, 1996 the decedent's will, had the burden to prove that the will was valid by a preponderance of the evidence. See Estate of Baker, 50 Wis.2d 330, 332 n. 1, 184 N.W.2d 72, 73 (1971). Lindhal presented the testimony of two individuals, Robert Burnette and Mary Hurdy-Schlehlein, who testified th......

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