Eannelli's Estate, In re

• Decision Date: 08 March 1955
• Citation: Eannelli's Estate, In re, 68 N.W.2d 791, 269 Wis. 192 (Wis. 1955)
• Parties: In re ESTATE of Anna C. EANNELLI, Deceased. Angeline VENCI, Adm'x, etc., Appellant, v. Paul EANNELLI, Adm'r, etc. et al., Respondents (two cases).
• Court: Wisconsin Supreme Court

Page 791

68 N.W.2d 791

269 Wis. 192

In re ESTATE of Anna C. EANNELLI, DeceasedAngeline VENCI, Adm'x, etc., Appellant, v.Paul EANNELLI, Adm'r, etc. et al., Respondents(two cases).

Supreme Court of Wisconsin.

March 8, 1955.

Rehearing Denied May 3, 1955.

This case was before this court on a former appeal and was reported in 266 Wis. 257, 63 N.W.2d 108.The order of the trial court denying a motion for extension of time within which to appeal from the judgment entered May 1, 1953, or in the alternative, for a new trial, was affirmed by this court on March 2, 1954.Upon rehearing, the order of affirmance was vacated and reversed in the interests of justice, and the cause was remanded with direction to grant reasonable time to perfect an appeal and settle the bill of exceptions (Mandate of May 4, 1954).

The Eannelli family consisted of four members: Massemino, husband and father; Anna, wife and mother; Anthony and George, sons.Their home was at Red Granite in Waushara county.Massemino Eannelli operated a retail lumber business there under name of 'Granite Lumber Co.'Anthony was a student in the school of forestry at Michigan State College at Lansing, Michigan.The family motored from their home in a 1950 Buick Sedan to East Lansing to attend Anthony's graduation.On the afternoon of June 12, 1951, while en route back to their home, and while traveling on U. S. Highway 212 in La Porte county, Indiana, the automobile in which they were riding collided with a train of the Nickel Plate Railroad.The entire family perished as a result of the collision.All of them died intestate.Paul Eannelli, brother of Massemino, was appointed administrator of Massemino's estate.Angeline Venci, sister of Anna, was appointed as administratrix of Anna's estate.Delbert Eannelli was appointed as administrator of the estate of Anthony.The George Eannelli estate was probated pursuant to Sec. 311.05, Stats., which provides for the summary settlement of small estates.Donato and Mary Eannelli, paternal grandparents of the deceased boys, Anthony and George, on November 14, 1952, filed petitions in the Massemino and Anna Eannelli estates, claiming that their grandson, Anthony, had survived the other victims of the accident, or in the alternative that the death of all had occurred simultaneously, and that hence the provisions of Sec. 237.10, Stats., the Uniform Simultaneous Death Act, applied.Angeline Venci, as administratrix of the estate of Anna Eannelli, filed an answer to the petitions of Donato and Mary Eannelli and claimed that Anna Eannelli had survived the others.

The trial court decided that Anthony had survived the other members of the family.It also found that Anna, the wife of Massemino, was not a business partner of her husband.Such determinations were embraced in the judgment of May 1, 1953.Thereafter, the appeal heretofore referred to, was taken.

Previous to the remittitur of this court's mandate of May 4, 1954, appellant here, Angeline Venci, administratrix of the Anna Eannelli estate, petitioned the trial court to set aside its judgment of May 1, 1953, and grant a new trial on the ground of newly discovered evidence.In the petition it was asserted that four witnesses were discovered who knew that Anna Eannelli had survived the other three members of the family in the accident.None of these had testified at the trial.Affidavits from these persons were attached to the petition.Also presented in support of the petition were affidavits of the petitioner's attorney, Vaughn S. Conway, one in part that Attorneys M. J. Paul and Chester J. Niebler, who represented the estate of Massemino Eannelli and the paternal grandparents of Anthony Ennelli, had 'been consulting privately with the court, and that their misconduct in communicating with the court during the time the cause was under advisement and while the matter has been pending in the supreme court, without furnishing affiant with a copy of the correspondence, or an opportunity to reply, is grounds for a retrial in the interests of justice.'

In another affidavit, Attorney Conway in part stated that: 'On or about April 14, 1954, I, for the first time, learned that Chester J. Niebler, attorney for Donato and Mary Eannelli, heirs of Anthony Eannelli, and also of counsel for the administrator of the estate of Massemino Eannelli, did, prior to the hearing on the issue of survival in said common disaster, and also after such hearing but while the matter was under advisement by Hon. Gad Jones, County Judge before whom said matter was heard and determined, confer with said judge, communicated with him in writing, and in fact carried on a lengthy and systematic correspondence with said judge concerning the merits of said case, all without furnishing any copies or giving notice of the contents to me or to any other attorney for Angeline Venci, administratrix of the estate of Anna C. Eannelli.Such correspondence and conferences deprived the said Angeline Venci, administratrix, and the said estate of due process in that it prejudiced the said county judge against the cause of the said administratrix and said estate, and in that it denied to her and her counsel an opportunity to reply to the statements and prejudicial matter set forth in said communications and in said conferences.The correspondence referred to was located by my associate in a miscellaneous file in the county court valult in the court house in the city of Wautoma on April 10, 1954, and I first saw the letters on or about four days later upon my returning to Wisconsin.'

Attached to the second affidavit referred to above are twelve exhibits, one purporting to be a copy of an order dated November 26, 1952, in the Massemino Eannelli estate, and the others consisting of copies of letters written principally by Attorney Niebler to the court, relating to matters in these estates.Attorney Conway complains that he had not been aware of the court order referred to, nor of the correspondence, and that no copies had been furnished to him.Exhibit 1 purports to be an order signed by the trial court permitting the filing by Donato Eannelli of his petition and exhibits.The order to show cause from which this order resulted does not appear to be a part of the return.Counsel for appellant indicates in his brief that by this order, death certificates to which he objected, became a part of the record.Exhibits 2 to 12 inclusive purport to be letters sent to the court between the period of February 23, 1953 and May 23, 1953.It appears that all of these were on file and were available for public inspection.An examination of the letters indicates that procedural matters involving the affairs of the estate are discussed.As to the letters sent by Attorney Niebler to the court, it appears that two of these pertain to the procurance of certification of death certificates.Before receiving these certificates in evidence the trial court had deferred its ruling regarding their admission, and had indicated leave to counsel to have them further attested.Citations indicating authority for the admission in evidence of these certificates, are contained in one of the letters.In one of these letters is a statement: 'When I last saw you, you were kind enough to suggest a form of certification even to giving me a form that might be adopted for that purpose.'Another statement read: 'We feel confident that the court will not permit form to govern substance.'

References in other letters pertain to the tardiness of opposing counsel in presenting briefs as directed; inability of the writer to attend court at a time fixed; observations as to points in a supplemental brief filed with the court by other counsel; report of result of a garnishment action in the circuit court; enclosure of a petition for the court's signature, etc.In one of the letters appears adverse criticism of opposing counsel for frittering away the time of the court and in employing dilatory tactics.In another it is suggested that the court set a deadline for filing of briefs by opposing counsel.Another letter concluded with the statement: 'We want to thank you for the enlightening conference we had with you on Wednesday.With such attention as was given uswe feel that we will be in a position to wind up these various matters by the early part of August.'

In opposition to the motion for a new trial appears of record an affidavit of Attorney M. J. Paul.It reads:

'M. J. Paul of Berlin, Wisconsin, being first duly sworn on oath, deposes and says:

'That he instituted the probate of said estate and has been and still is the record attorney for Paul Eannelli, the administrator of said estate.

'That this affidavit is made in opposition to the motions of Vaughn S. Conway to set aside judgment and for a retrial or a new trial, said motion being dated April 14th, 1954.

'That annexed to said motions is the affidavit of Vaughn S. Conway, dated April 14th, 1954, which alleges that this affiant and Chester J. Niebler did misconduct themselves in communicating with the court during the time the case was under advisement, and while the matter has been pending in the supreme court, but that no specific acts of misconduct are alleged.

'That this affiant specifically denies that there was any misconduct upon his part or that of Chester J. Niebler.

'That from time to time this affiant did consult with the court as to when the claims should be paid and as to when the determination of the heirs should be made and other matters of procedure, but nothing to influence the court in its decision in said estate.

'That the judge has no private office, but merely has the court room, a waiting room and the vault containing the record in which the register in probate takes care of the records.

'That in the files there are some fourteen letters written by Conway & Conway or either of them to the court and only a few of them have an indication copies were sent to opposing counsel.

...