Glojek v. Glojek

• Decision Date: 15 December 1948
• Citation: 35 N.W.2d 203,254 Wis. 109
• Parties: GLOJEK et al. v. GLOJEK et al.
• Court: Wisconsin Supreme Court

254 Wis. 109

35 N.W.2d 203

GLOJEK et al.

v.GLOJEK et al.

Supreme Court of Wisconsin.

Dec. 15, 1948.

Appeal from an order of the Circuit Court for Milwaukee County; August E. Braun, Judge.

Affirmed.

This is an action commenced on May 1, 1948 by William J. Glojek, Joseph L. Glojek and Ferdinand A. Glojek, plaintiffs, against Jennie Glojek and Virginia King, defendants. The complaint stated that plaintiffs are the three sons and only children of Ferdinand Glojek, deceased; that in 1947 deceased was a widower, sixty-two years of age, who had retired after accumulating real and personal property of the value in excess of $50,000, the most valuable item of which was a parcel of land with a building located in West Allis worth at least $20,000; that in 1947 deceased contracted a marriage with defendant, Jennie Glojek; that at this time deceased was suffering from an incurable ailment; that deceased entered into a prenuptial agreement limiting the amount of his estate which would go to Jennie Glojek upon his death and on information that it was his intention that three-fourths of the property should go to plaintiffs and one-fourth to his wife in accordance with the antenuptial agreement; that during the period when he was extremely ill, under drugs and medication and susceptible to undue influence, he and defendant, Jennie Glojek executed a quitclaim deed of the real estate to defendant, Virginia King, who, on the same day executed a quitclaim deed of the same premises back to him and defendant, Jennie Glojek as joint tenants; that on the same day deceased executed a will leaving his househould furniture and personal effects to Jennie Glojek and the residue of his estate, one-fourth to Jennie Glojek and one-fourth to each of the three plaintiffs; that the deed of decedent was secured by undue influence on the part of Jennie Glojek; that at this time decedent was greatly weakened in mind and body and susceptible to undue influence; that Jennie Glojek was in constant attendance upon him; that she knew that a plan for the disposition of his estate had theretofore been entered into and that the quitclaim deed in question was the consummation of a plan and course of action conceived and carried on by Jennie Glojek to obtain for herself the major part of the assets of her husband when he was on his deathbed.

Defendants demurred to this complaint and an order was entered on July 8, 1948 overruling defendants' demurrer. Defendants appeal. Bruce B. F. Randolph, of Milwaukee, for appellant.

Shea & Hoyt, of Milwaukee (Ralph M. Hoyt and Hamilton T. Hoyt, both of Milwaukee, of counsel), for respondent.

WICKHEM, Justice.

The argument of defendants can be very simply put: this court in a number of cases has held (1) that undue influence is a species of fraud; Will of Grosse, 208 Wis. 473, 243 N.W. 465;Boardman v. Lorentzen, 155 Wis. 566, 145 N.W. 750, 52 L.R.A.,N.S., 476; Will of Slinger, 72 Wis. 22, 37 N.W. 236;Will of Schaefer, 207 Wis. 404, 241 N.W. 382;Ball v. Boston, 153 Wis. 27, 141 N.W. 8 and (2) that an action to set aside a deed upon the ground of fraud does not survive to heirs of the decedent. Zartner v. Holzhauer, 204 Wis. 18, 234 N.W. 508, 76 A.L.R. 396;Krueger v. Hansen, 238 Wis. 638, 300 N.W. 474;Riedi v. Heinzl, 240 Wis. 197,3 N.W.2d 366. The quotation from the Holzhauer case relied upon as applicable is as follows [204 Wis. 18, 234 N.W. 511]:

‘Though the deed was voidable by Emma Zartner, it was effectual to vest her title to the premises in her grantee until it was voided by her, and her death, without rescission, must have the same effect as though she had affirmed it in her lifetime. All power to disturb the title to the premises died with her. * * *

‘The right of rescission is one personal to the defrauded party, and no action or right of action to recover the possession of real estate or to set aside the conveyance of land arising in cases such as this exists until the person defrauded has exercised this right of rescission. Melenky v. Melen, 233 N.Y. 19, 134 N.E. 822.’

It is the contention of plaintiffs (1) that under the facts involved in the Holzhauer case the court had no occasion to make any ruling upon the point and that the opinion expressed in the above quotation is dictum; (2) that the Holzhauer case, if construed to hold as indicated in the quotation is wrong and contrary to all previous authority in this state and to all authority in the country at large; (3) that in case the court determines to adhere to the doctrine of the Holzhauer case its application should be limited to ordinary fraud cases where the decedent is of sound mind and not under undue influence and where he could be considered to have had a chance to disaffirm which he did not take. It is asserted that in cases of undue influences the very nature of the fraud is likely to guarantee that there will be no subsequent disaffirmance. After a careful restudy of the matter we conclude that plaintiffs are right and that the dictum in the Holzhauer case was erroneous. In Davis v. Dean, 66 Wis. 100, 26 N.W. 737 heirs were granted recovery of property conveyed by the deceased mother and this was grounded both on mental incompetency and undue influence. The following cases all involve undue influence and hold to the same effect: Cole v. Getzinger, 96 Wis. 559, 71 N.W. 75;Doyle v. Welch, 100 Wis. 24, 75 N.W. 400;Disch v. Timm, 101 Wis. 179, 77 N.W. 196;Shawvan v. Shawvan, 110 Wis. 590, 86 N.W. 165;Quinn v. Quinn, 130 Wis. 548, 110 N.W. 488. In the foregoing cases the right of heirs to maintain such an action was assumed without discussion. In all of them there were elements of confidential relationship and the court considered this sufficient to raise a constructive trust. Allen v. Frawley, 106 Wis. 638, 82 N.W. 593, presented the case of a conspiracy to obtain decedent's properly carried out by one standing in a confidential relationship and plaintiffs there sought to have the court raise and enforce a constructive trust. The case did not, however, involve either undue influence or the misuse of property by a fiduciary to one to whom it had been entrusted. The court in the Frawley case construed the complaint as one seeking not damages but return of the property fraudulently obtained by the device of charging defendant as constructive trustee and enforcing the trust. It was held that such an action survived the death of the cestui que trust.

In Somervaill v. McDermott, 116 Wis. 504, 93 N.W. 553, 554 an administrator sought to recover personal property obtained from his decedent by fraud. The court stated that the contention that this cause of action ‘does not survive is so completely refuted by the authorities as to hardly require discussion.’ In Borchert v. Borchert, 132 Wis. 593, 113 N.W. 35 the court stated that there was a distinction between an action for cancellation of fraudulently procured deeds which was held to survive on common law principles and an action at law for the fraud which did not survive because not at that time covered by a survival statute. In this case the court found a basis for raising a constructive trust. In Armstrong v. Morrow, 166 Wis. 1,163 Wis. 179, Ann.Cas.1918E, 1156 an administrator sought to set aside the assignment of a mortgage procured by an attorney from decedent, through the exercise of undue influence. There was no challenge to the right of the administrator to maintain the action and the court affirmed a judgment in his favor. The court specifically dealt with the contention that decedent lost his right of rescission by reason of laches in not moving to set aside the assignment within four years between the time of assignment and his death. It was held that the confidential relation and undue influence existed up to the time decedent died and that there was no delay amounting to laches. In Patulski v. Bellmont Realty Co., 166 Wis. 188, 164 N.W. 841 this court affirmed a judgment in favor of residuary legatees under the will of a woman from whom a deed had been obtained by her confidential agent under circumstances pointing to fraud or undue influence. The deed had been given two years before the death of the grantor and the action was one by the...