Fillar's Estate, In re

• Decision Date: 05 April 1960
• Citation: 10 Wis.2d 141,102 N.W.2d 210
• Parties: In re ESTATE of John FILLAR, Deceased, George FILLAR, Appellant, v. ESTATE of John FILLAR, Deceased, Respondent.
• Court: Wisconsin Supreme Court

Page 210

102 N.W.2d 210

10 Wis.2d 141

In re ESTATE of John FILLAR, Deceased, George FILLAR, Appellant, v. ESTATE of John FILLAR, Deceased, Respondent.

Supreme Court of Wisconsin.

April 5, 1960.

John H. Ames, Milwaukee, for appellant.

Ward Dunphy, Milwaukee, for respondent.

BROWN, Justice.

The present proceeding to discover assets of a deceased person and to procure from the county court an appropriate order when such a discovery is made is authorized by sec. 312.06, Stats.

By a finding of ultimate fact (finding 18) the county court determined:

'(18) That George Fillar exercised undue influence upon his father, John Fillar, in securing the sum of $5,830.33 from said John Fillar and that said sum is an asset of the estate of John Fillar, deceased.'

The judgment ordered George Fillar to make restitution of $5,830.33 to the estate of John Fillar. George Fillar appeals contending that the evidence does not sustain such finding 18 nor sustain the detailed findings of fact of the elements necessary to a determination that undue influence has been practiced.

The usual situation presented in actions grounded on undue influence involves wills alleged to be so procured and the principles to be applied in the determination of undue influence cases are generally to be found in will controversies, but conveyances inter vivos are subject to the same legal principles as those stated in will cases. Thus conveyances inter vivos may be set aside when procured by undue influence as in Davis v. Dean, 1886, 66 Wis. 100, 26 N.W. 737; Cole v. Getzinger, 1897, 93 Wis. 559, 572, 71 N.W. 75; Doyle v. Welch, 1898, 100 Wis. 24, 75 N.W. 400; In re Estate of Larsen, 1959, 7 Wis.2d 263, 96 N.W.2d 489.

In Reimer v. Reimer, 1959, 7 Wis.2d 146, 96 N.W.2d 375, we said, as we have often said before, findings of fact by a trial court are not to be set aside unless they are contrary to the great weight and clear preponderance of the evidence and where there is a dispute in the testimony the trier of the facts is the judge of the weight and credibility to be accorded to the testimony of the witnesses. In Weber v. Kole, 1959, 7 Wis.2d 107, 95 N.W.2d 784, we expressed the same rule and added that it is not sufficient for reversal that a contrary finding might have been made with evidence in its support. Most recently in Re Will of Freitag, 1960, 9 Wis.2d 315, 101 N.W.2d 108, an undue influence case, this court held that a finding of fact by the trial court may not be disturbed on appeal unless contrary to the great weight and clear preponderance of the evidence and the elements of influence must be proved by clear, satisfactory and convincing evidence. In such a case the findings of the trial court, its interpretation of the facts, and its determination of the credibility of the witnesses are of great importance on appeal. Proof of undue influence or fraud is usually found as an inference from other facts, generally circumstantial which may be sufficient to meet the required burden of proof. Id.

'* * * it is the established rule in this state that in will cases fraud or undue influence must be established by clear, convincing and satisfactory evidence which means something more than a mere preponderance of evidence. * * *' In re Will of Faulks, 1945, 246 Wis. 319, 344, 17 N.W.2d 423, 433, and we see no difference in the quantum or quality of proof to be required in order to establish undue influence in conveyances inter vivos. In re Estate of Larsen, supra.

In Boardman v. Lorentzen, 1914, 155 Wis. 566, 145 N.W. 750, 52 L.R.A.,N.S., 476 the late and learned Mr. Justice Marshall expressed the degree of proof to be required in such cases. Since that justice, himself, wrote the syllabus to the reported case it is especially authoritative and from it we quote:

'1. He who obtains property by will or otherwise through undue influence or consciously taking advantage of incompetency of the owner, commits a fraud of most serious character.

'2. The common rule as to certainty of the existence of facts constituting fraud, applies emphatically, in case of the wrong being that of obtaining property by undue influence or taking advantage of incompetency of the owner,--such facts are required to be established by clear and satisfactory evidence.

'3. In a controversy as to whether property was obtained by undue influence there is an evidentiary presumption in favor of the person charged, the same as in all cases sounding in fraud, that he did not perpetrate the wrong.

'4. The charge of obtaining property by undue influence may be circumstantially, prima facie, established; but that requires these essentials: Proof of a subject unquestionably susceptible to undue influence and clear and satisfactory evidence of opportunity to exercise such influence, a disposition to exercise such influence and indication that it was in fact exercised.

'5. Upon a prima facie case of undue influence having been circumstantially or otherwise established, there is no shifting of the burden of proof upon the accused more than in any other case where plaintiff's evidence, unexplained or uncontradicted, would entitle him to judgment.

'6. In case of a charge of obtaining property by undue influence, prima facie or otherwise established, the defendant must meet such prima facie case to such extent, at least, that there is no longer clear and satisfactory proof of the facts constituting the charge of fraud.'

Amplifying paragraph 6 of the syllabus the body of the opinion, 155 Wis. at pages 571 and 572, 145 N.W. at page 753 as follows:

'It is unfortunate that trial courts now and then, cling, seemingly, to the idea of the shifting of the burden of proof in such cases, and in that way take a wrong view of the evidence. There is no more shifting of the burden of proof in this class of cases than in any ordinary case where the plaintiff by evidence in chief succeeds in making out a prima facie case. The burden of proof rests with him from the beginning to the end. The only distinguishing characteristic of the particular class is this: the court has held that some circumstances are sufficient to so lift the burden as to call for rebuttal. But all the defendant need then do is to produce sufficient evidence to so weaken plaintiff's case, that the circumstantial and other evidence in his behalf no longer establishes the fraud charged with the requisite clearness to warrant a decision in his favor. That is to say, a prima facie case, circumstantially made against the defendant, does not require him, in order to defeat it, to prove affirmatively that the act challenged was free from any fatal taint, as if he were the plaintiff holding the burden of proof and required to so establish facts. The charge against the defendant in such a case as this, in effect, accuses him of having perpetrated a fraud of a serious nature. There is a strong presumption in his favor against such wrong doing, which persists to the end of the litigation unless overcome by circumstances inconsistent...