Boots' Estate, Matter of
| Decision Date | 30 June 1976 |
| Docket Number | No. 742,742 |
| Citation | 73 Wis.2d 207,243 N.W.2d 225 |
| Parties | In the Matter of the ESTATE of James BOOTS, Deceased. Henry L. BOOTS, Appellant, v. Franklin BOOTS, special administrator of the Estate, Anna Lang, et al., Respondents. (1974). |
| Court | Wisconsin Supreme Court |
McCarty, Curry, Wydeven, Asmus & Peeters, Kaukauna, for appellant.
Van Hoof, Van Hoof & Luebke, Little Chute, for respondents.
The order appealed from vacates a previous order for summary assignment of the Estate of James Boots, and requires Henry Boots (the principal beneficiary under the summary assignment) to turn over to an appointed special administrator all funds and income which he has received from two savings accounts jointly held by James and Henry Boots. The principal issues on appeal are whether the trial court erred in finding that (1) Henry Boots committed a constructive fraud in securing the original summary assignment and (2) the bank accounts were not, in fact, jointly owned with right of survivorship, but rather belonged entirely to James and hence became part of his estate. 1
James Boots died intestate on November 23, 1971, at the age of 40. He was survived by two older brothers, Henry, age 57, and Franklin, age 50, three older sisters, Catherine Martzahl, Anna Lang, and Theresa Schreurs, and three children of a deceased brother, Richard, Sandra, and Timothy Boots. All of James' siblings are petitioners in the present case. An evidentiary hearing on their petition to appoint a special administrator established the following history:
During his lifetime, James Boots had resided with his father until the latter's death in 1955. Thereafter he resided briefly with his sister Theresa, and then with his sister Catherine until his own death. At Catherine's he occupied his own room, and paid room and board of $12.00 per week. He provided most of his own furniture and the family television set. James' schooling had stopped with the eighth grade. Catherine and Theresa testified that he had had difficulty when in school. He had been employed more or less constantly for about 15 years before his death as a truck driver by a local concrete products firm.
James' affairs were handled by his father until his death in 1955. After 1955, Catherine and, to a lesser extent, Theresa handled such things as James' auto insurance, driver's license, provision for clothes, and the medicines necessary for his heart condition. Catherine testified she had filled out various applications and medical forms because James 'wasn't very good at spelling.' Henry admitted he had never seen James reading a newspaper. Henry took over the management of James' financial affairs in 1957, when the first of the savings accounts was opened at Kimberly Savings & Loan Association in the names of 'James Boots or Henry and Elizabeth Boots.' All three of the parties went to the institution at that time. In 1970 when the Kimberly Credit Union account was opened, Henry went alone to pick up application materials because 'that's the way he (James) wanted it.' Henry also aided James in negotiating an automobile purchase and related loan in 1959, and supervised the filing of James' income tax returns by an attorney.
James contributed all of the funds to the joint accounts from his wages. He would sometimes give his paycheck to Henry for deposit in one of the accounts. Henry made all the deposits and all of the few withdrawals of funds as requested from time to time by James. Henry never withdrew funds for himself and never claimed any of the account dividends as taxable income. Henry admitted that the accounts were a 'convenience' for James, but did state that they were supposed to go to him upon James' death.
There was also testimony that James was very shy and self-conscious about his weight of 350 pounds. He spent most of his spare time at home or in a local tavern, and avoided strangers. Henry admitted that James had never gone with his to the savings and loan to make deposits in the joint account, because James shied away from such places.
Before James' death, the Boots family relationships were good. Catherine and Theresa both expressed their prior trust in Henry. Henry was no closer to James than he was to other members of the family.
On the day after James' funeral the first of a series of conferences among the members of the family occurred. A meeting of all concerned had been called to agree on the appointment of an administrator, but Henry privately advised his brother Franklin that there was no need for such a meeting. After some discussion Henry explained that the savings accounts were joint and now belonged entirely to him. The testimony is in conflict: Franklin testified that Henry had said, ; Henry testified that he had not said this at that time, although later he admitted that, after the summary assignment, he told Franklin the money could be divided equally. Franklin also testified that Henry had told everyone present 'I'm going to take care of everything.' This testimony was corroborated by Theresa. Henry denied making this statement. However, it was Henry who collected James' papers and sought out an attorney to handle the estate.
On December 2, 1971, Henry Boots filed a petition for summary assignment of James' estate, pursuant to sec. 867.02, Stats. 2 The siblings were not formally notified of the hearing on this petition, as is permitted by sec. 867.02(2)(d), Stats. 3 The testimony indicates that there were numerous contacts between Henry and other members of the family, particularly Catherine and Franklin, prior to the hearing on Henry's petition. Henry admitted that he had told them little, if anything, about the administration of James' estate, although he admitted that he probably had been asked about the status of the estate. Franklin testified he had never been told anything by Henry about the estate, even though he had inquired 'a good many times' about the hearing date. Catherine testified that Henry never told her of the nature or extent of James' savings or of the time for the hearing. She testified that she had specifically asked Henry's wife about the hearing date.
On February 29, 1972, Henry's petition for summary assignment was heard. The only testimony was that of Henry in support of the petition. An affidavit was introduced showing that James had assets of $13,004.28, of which $7,810.32 consisted of a one-half interest in two savings accounts, one held in joint form with Henry, the other with Henry and Henry's wife. The affidavit listed liabilities of $2,189.73. The affidavit did not show a $2,000 life insurance benefit paid by the Credit Union National Association to Henry as joint tenant in one of the savings accounts with the credit union. After the hearing, the trial court granted the petition for summary assignment, finding that the savings accounts were held by James and Henry as joint tenants.
The order of summary assignment was mailed on March 1, 1972, to all of the heirs. While the order identified by institution and account number the savings accounts which Henry had claimed as a joint tenant, the order did not state the amounts in the accounts or indicate that the $2,000 life insurance benefit had been paid to Henry. When his siblings discovered that Henry had been assigned the joint accounts, there were further discussions. Franklin testified that he could get no information from Henry, and went to the attorney to determine the amounts in the savings accounts. When confronted with Franklin's opinion that the matter had not been handled justly, Henry said he could give Franklin 'up to $1000.' Henry testified that he had mentioned $1000 in connection with a discussion of gift taxes. Catherine and her husband testified that Henry had told them he had not known that he would get the joint accounts until he had gone to the attorney. Henry denied making this statement and said he had only told them he didn't know whether he would, as a matter of grace, divide the joint accounts equally.
At the time of these discussions Henry prepared personal checks for $400 to each of his siblings to satisfy their complaints. Theresa had asked Henry why they could not find out how much there was in the accounts, and she testified that he replied, 'It's personal' and 'I don't want no trouble with my brothers and sisters . . . I'll get this mess straightened out.' These checks were never cashed.
On about March 17, 1972, Henry delivered checks for $807 to each of his four siblings with written notes to three indicating that this was their share of James' savings; these checks were cashed. Franklin was still not satisfied and Henry admitted telling him that
On September 12, 1972, the present petitioners applied for intestate administration of James' estate. Henry asserted in opposition that the three-month statute of limitations barred reconsideration of the summary assignment. 4 The petitioners asserted that Henry had committed a fraud on the court, nullifying the earlier proceeding, and that the savings accounts were actually the sole property of James. On November 5 1972, the evidentiary hearing was held at which the preceding testimony was given. Following the hearing, the trial court ruled that the earlier summary assignment proceeding could be reopened because, inter alia, Henry had committed constructive fraud. The court appointed Franklin Boots as special administrator.
The first question is whether the order for summary settlement can be reopened for constructive fraud in its procurement. It is the position of Henry Boots that, three months having passed since a copy of the order assigning the estate was mailed or delivered to the petitioners, the order was res judicata. Henry Boots characte...
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State v. Campbell, 2006 WI 99 (Wis. 7/12/2006)
...the fraudulently obtained judgment when the judgment supplies the basis for a criminal prosecution. He relies on Boots v. Boots, 73 Wis. 2d 207, 243 N.W.2d 225 (1976); Zrimsek v. American Automobile Insurance Company, 8 Wis. 2d 1, 98 N.W.2d 383 (1959); State v. Bouzek, 168 Wis. 2d 642, 484 ......
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State v. Gudgeon, 2005AP1528.
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State v. Campbell, 2004AP803-CR.
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Jacobson v. Wells Fargo Bank, N.A. (In re Jacobson)
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