Dobrecevich's Estate, In re

• Decision Date: 06 June 1961
• Citation: 14 Wis.2d 82,109 N.W.2d 477
• Parties: In re ESTATE of Rade DOBRECEVICH, Deceased. Emil DOBRECEVICH, Appellant, v. Anna BRANDT, Respondent.
• Court: Wisconsin Supreme Court

Page 477

109 N.W.2d 477

14 Wis.2d 82

In re ESTATE of Rade DOBRECEVICH, Deceased.

Emil DOBRECEVICH, Appellant, v. Anna BRANDT, Respondent.

Supreme Court of Wisconsin.

June 6, 1961.

Anna Brandt, daughter of Rade Dobrecevich, deceased, offered for probate a document, executed March 31, 1954, which purported to be the will of her father. The document nominated her as executrix of the will and she is the principal beneficiary. On that date and on the date of Rade's death, May 9, 1959, he was a widower and was the father of five adult children who survived him. One of them, Emil Dobrecevich, filed objections to the admission of the will to probate, alleging that the purported will was not executed in conformity with the requirements of sec. 238.06, Stats., that Rade Dobrecevich lacked testamentary capacity, and that the will was procured by the use of undue influence or fraud exercised upon the testator by the said Anna Brandt.

After a direction for payment of the testator's debts, the provisions of the will material to the issues are:

'II.

'I give, devise and bequeath unto my beloved daughter, Mary Frank, Hales Corners, Wisconsin, the sum of Five Hundred ($500.00) Dollars.

'III.

'I give, devise, and bequeath unto my beloved son, Louis Dobrecevich, of Sussex, Wisconsin, the sum of Five Hundred ($500.00) Dollars.

'IV.

'I give, devise and bequeath unto my beloved son, Emil Dobrecevich, of Pewaukee, Wisconsin, the sum of One Hundred ($100.00) Dollars.

'V.

'I give, devise and bequeath unto Helen Lucas, Brookfield, Wisconsin, the sum of One Hundred (100.00) Dollars.

'VI.

'All the rest, residue and remainder of my estate, real, personal, or mixed, wheresoever situate, I give, devise, and bequeath unto my beloved daughter, Anna Brandt, of Colgate, Wisconsin. She has been good and kind to me during my life, and she cared for me after the death of my wife, Ella Dobrecevich.'

The county court found that the evidence did not sustain the objections alleged by Emil Dobrecevich and the trial court admitted the will to probate. The objector has appealed.

Further facts will be given in the opinion.

Snyder, Mantyh & Arndt, Milwaukee, for appellant.

John J. McLario, Menomonee Falls, for respondent.

BROWN, Justice.

Execution of the Will.

The document was signed by Rade Dobrecevich at the Farmers and Merchants Bank in Menomonee Falls, Waukesha county, on March 31, 1954, in the presence of Robert Goode and Bernard Bellin, who were officers of the bank for many years. These officers testified that Dobrecevich and the two witnesses all signed in the presence of each other. Mr. Bellin testified directly that he remembered Rade's statement to the witnesses that this paper was his will.

The objector's contention is that the witnesses had no present recollection of the execution of the will, that the attesting witnesses did not read the will and could not now say that they knew this to be a will at the time they witnessed it, and they did not read the attestation clause and therefore there was no presumption of fact in the declarations of the standard attestation clause. Whether they read the attestation clause or not both bank officers testified that they were accustomed to act as witnesses to wills and that they knew this was a will presented to them to be witnessed. It is extremely improbable that bank officers would put their names to documents about whose nature and purpose they did not know and understand, in addition to which the testimony, particularly of Mr. Bellin, shows that Rade published and declared this paper to be his will and asked them to be witnesses to his signing it. There is no contrary testimony and the appellant's objection to this feature of the case rests only on an inference that the witnesses could not have remembered the transaction. The court did not draw that inference but did believe the witnesses. The court's finding that the execution conformed to the statute, sec. 238.06, was sufficiently proved.

Testamentary Capacity.

The decisions dealing with testamentary capacity are so numerous and the law so well established that it hardly seems necessary to review them again at length. The question of competency to make a will is to be determined as of the time of the execution of the will; the credibility of witnesses and the weight to be given to their testimony are matters for the trial court, as are the inferences to be drawn from the evidence. The findings of the trial court must be affirmed unless contrary to the great weight and clear preponderance of the evidence. Estate of Fuller, 1957, 275 Wis. 1, 81 N.W.2d 64. The party contesting the will because of alleged lack of testamentary capacity has the burden of proving the incapacity by clear and satisfactory evidence and the question of mental competency is to be determined as of the time of the execution of the will. Estate of Kaiman, 1961, 13 Wis.2d 201, 108 N.W.2d 379.

As witnesses to establish Rade Dobrecevich's incompetency the objector called his brother and his two sisters, as well as numerous other witnesses, all of whom testified that Rade drank heavily and when drunk behaved in a most disorderly manner. In this respect the effect of such testimony is very similar to that on the issue of testamentary capacity in the Kaiman Case, supra. It may be conceded that a fastidious hostess would not want Rade to be her house guest but this testimony bears little relationship to the testator's competency to make a valid will distributing his property after death. Neither is there much probative force in the fact that in the years after the will was executed Rade's drinking habits got worse and a year and a half after the date of the will his children determined that he was wasting his money and they thought it advisable that he should be put under guardianship as a spendthrift. On the petition of his daughter, Anna, the Waukesha county court, November 1, 1955, found Rade to be incompetent to have the care and management of his property because of his being an habitual drunkard and spendthrift and Letters of Guardianship were issued to Anna Brandt. Long ago we determined that the mere fact that a person is under guardianship as to his person and property does not incapacitate him to make a valid will. Will of Slinger, 1888, 72 Wis. 22, 37 N.W. 236. The distinction between incapacity to handle his finances and incapacity to comprehend the conditions of his property, his relationship to the natural objects of his bounty and the disposition actually made of his property by a will still holds good.

The objector also charged that Rade suffered from insane delusions and that such delusions produced the distribution which the will made in the estate. No delusions whatever are in evidence. The objector has attempted to work the problem backwards by a course of reasoning which starts by a will unsatisfactory to the objector, from which he argues that the testator must have been motivated by an insane delusion that the children, other than Anna, persecuted him and he resented it. There is no testimony that Rade had any such thoughts or beliefs.

Under the evidence adduced in the trial of this case we find no merit in objector's contention that Rade lacked testamentary capacity.

Testator's Ability to Understand the Will.

The objector also submits that even if Rade's competency was such as to enable him to make a valid will there is insufficient proof that he did intentionally and understandingly make this will. This rests on a theory that Rade, who was of Serbian birth, could not communicate satisfactorily in the English language and, therefore, Rade was not able to express his wishes to the scrivener who drafted the will and who understood and spoke only English, nor could Rade understand the will when the scrivener read it back in English to him nor could he read the will for himself. If must be conceded Rade could not have read the will but it is not one difficult to understand. The scrivener, Attorney Higgins, testified that he was able to understand what Rade wanted and that Rade understood the will which Higgins prepared and read to him. Numerous other witnesses called by Anna, the proponent, testified that Rade could understand and be understood in the English language when conversing on simple subjects. He could make purchases...