Friedman v. Friedman (In re Friedman's Estate)

• Decision Date: 01 July 1947
• Citation: 251 Wis. 180,28 N.W.2d 261
• Parties: In re FRIEDMAN'S ESTATE. FRIEDMAN v. FRIEDMAN et al.
• Court: Wisconsin Supreme Court

251 Wis. 180

28 N.W.2d 261

In re FRIEDMAN'S ESTATE.FRIEDMAN

v.FRIEDMAN et al.

Supreme Court of Wisconsin.

July 1, 1947.

Appeal from an order of the County Court for Milwaukee County; Roscoe R. Luce, Judge presiding.

Affirmed.

This is a special proceeding in the Estate of Abe Friedman, deceased, commenced on August 9, 1945, by the service of a petition and order to show cause on the defendants and respondents, Harry W. Friedman, Executor, and William Orenstein. Judgment was entered on the 2d day of August, 1946, dismissing the petition of Celia Friedman upon the merits.

The defendant, William H. Orenstein, in 1940 was employed by Abe Friedman at a salary of $25 per week. He continued as such employe until January 5, 1943, when they entered into a partnership agreement. This partnership continued until the death of Abe Friedman on September 18, 1944. On the 26th day of May, 1943, Abe Friedman executed his will and testament, which was subsequently admitted to probate. By paragraph 8 of the will, Abe Friedman provided as follows:

‘I hereby give and grant to such executor (Harry W. Friedman, his brother) full authority to bargain, sell and convey all or any part or parcel of my estate, real or personal, at any time and upon such terms as to him may seem just and proper, and to convert real estate into personalty, and for that purpose to issue all proper deeds and conveyances with or without warranty, and for that purpose to make all proper engagements and contracts in his discretion, and do all the things aforesaid without application to or order of any court, and at such price and upon such terms as in his discretion may seem best; and to invest and re-invest the proceeds of the property so sold in such other property, securities, or investments as by him may be deemed proper, without application to or order or authority of any court and without the necessity of complying with the trust fund laws of the State of Wisconsin.’

The partnership agreement already referred to contained the following clause:

‘Fourteenth: That it is the express intention, aim and direction of the parties hereto, that upon the death of one of the partners, the said partnership shall not be deemed dissolved thereupon, nor shall said business be stopped or ceased in any way or manner for any reason whatsoever, but the personal representative of the partner so dying, shall immediately succeed to his interest in the partnership, and shall stand in his place with respect to said deceased partner's share and profits in the business of the partnership, and such personal representative shall have the same rights and powers and shall be subject to the same duties and liabilities, as the deceased partner would have possessed and would have been subject to, but for his death.’

There was a further provision as to what procedure should be taken if the deceased partner's widow should desire to sell her interest. This provision is not material upon this appeal.

About two weeks after the death of Abe Friedman, there was a family council at the home of Celia Friedman, at which William Friedman, the father of the deceased, Harry Friedman and Hyman Friedman, brothers of the deceased, Mrs. Orenstein, sister of the deceased, Attorney Bernard Soref, Mrs. Karlitsky, mother of the widow, and Abe Karlitsky, brother of the widow, were present with the widow. Subsequently and on October 10, 1944, at the request of Soref, the widow signed a waiver so that the will could be probated. At that time, Harry Friedman, the executor, made it clear that it was his intention to continue the partnership. For the first two weeks after her husband's death, the petitioner received a check for $65 a week signed by William Orenstein, the surviving partner. This was the amount which was drawn by Abe Friedman prior to his death. After the will was read, the widow received a check for $45 per week, in accordance with the agreement entered into with William Orenstein, the surviving partner, and Harry Friedman, the executor.

Some time after October 10, 1944, the executor changed his mind about continuing the business and entered in negotiations with Orenstein for the sale of the testator's interest. On March 30, 1945, the inventory was filed and contained the following item:

‘A 67% interest in the assets of all kinds of Friedman Tobacco Co., a co-partnership, appraised at $16,300.’

On the same day that the inventory was filed, the executor filed a petition asking for permission to sell the decedent's interest in the Friedman Tobacco Company to William Orenstein. Concurrently therewith an offer by William Orenstein to purchase said interest for the sum of $16,500 was filed. Without giving any notice a hearing was had on the petition on the same day that it was filed and an order was given authorizing and approving a sale to William H. Orenstein, and was signed by the court on March 30, 1945. This entire transaction was had without any notice to and without the knowledge, consent or approval of Celia Friedman, the widow.

On April 2, 1945, the executor executed a bill of sale of the decedent's interest in the partnership to William H. Orenstein. This proceeding was began to set aside the sale by the executor to Orenstein on the ground that the executor and Orenstein entered into a conspiracy to defraud the petitioner; that in furtherance of such conspiracy they caused the offer to purchase and the petition and other allowing the executor to sell to be executed and filed and approved by the court through false and fraudulent representations made to the court. The details of this conspiracy and the manner in which it was carried out are set out at great length.

It is also alleged in the petition that the executor caused appraisers to be appointed who were not qualified to make an appraisal of the business of the type conducted by the Friedman Tobacco Company and that all of the facts pertaining to said business were not submitted to the appraisers. Upon all of the matters set out in the petition, the petitioner sought to have the sale by the...