Hamm's Estate, In re

• Decision Date: 17 March 1975
• Docket Number: No. 363,363
• Citation: 67 Wis.2d 279,227 N.W.2d 34
• Parties: In re ESTATE of Clayton P. HAMM, Deceased. Irene A. HAMM et al., Appellants, v. Jimmie JENKINS, Proponent of the Will of Clayton P. Hamm, Deceased, Respondent.
• Court: Wisconsin Supreme Court

Page 34

227 N.W.2d 34

67 Wis.2d 279

In re ESTATE of Clayton P. HAMM, Deceased.

Irene A. HAMM et al., Appellants, v. Jimmie JENKINS, Proponent of the Will of Clayton P. Hamm, Deceased, Respondent.

No. 363.

Supreme Court of Wisconsin.

March 17, 1975.

[67 Wis.2d 281] This is an appeal from a judgment admitting the will of Clayton P. Hamm, deceased, to probate over objections that it was executed as a result of undue influence.

Hoyt, Greene, Meissner & Walsh, S.C., Milwaukee (Hamilton T. Hoyt, Milwaukee, of counsel), for appellants.

Robert D. Jones, Louis R. Jones, Milwaukee, for respondent.

CONNOR T. HANSEN, Justice.

Clayton P. Hamm, who had never married, died January 21, 1973, at the age of In 1951, Clayton P. Hamm broke a hip and subsequently retired. July 19, 1954, Hamm suffered a stroke. The remainder of his life he required the services of a male attendant. Difficulty was experienced in securing such services from 1954 to 1965. In February, 1965 Jimmie Jenkins was employed as a male attendant for Hamm and he continued to serve in that capacity until Hamm died in 1973.

seventy-four. His surviving heirs and the appellants were his two sisters, Irene Hamm, aged seventy-one years, and Phyllis Hamm, aged sixty-eight years, who also were never married; a sister, Florence G. Stoker, aged seventy-two years, of Cleveland, Ohio; and three adult children of a deceased brother, Gilbert, and namely, Patricia Biever, Jeanne Eckels and Karen Rahn, all living outside the state and married.

Between 1965 and 1970, Hamm executed four wills. The last will he executed was admitted to probate and is, therefore, the subject of this appeal. It was executed April 4, 1970. This will contained a $35,000 trust provision for his sister Irene, and a $50,000 bequest to his sister Phyllis. In the event of lapse, these bequests passed to the residuary legatees. The residue was divided 10 percent to his sister Florence G.; five percent to John T. Jenkins, Jimmie's brother who served as Hamm's attendant when Jimmie was not available; and 85 percent to Jimmie Jenkins. The will further provided that in the event Florence G. and her husband both predeceased the testator, her share was to go 9/10ths to Jimmie Jenkins and 1/10th to John T. Jenkins. In the event Jimmie Jenkins predeceased Hamm, or failed to meet certain conditions set forth in the will and not at issue on this appeal, his distributive share passed to his wife and children. At the time of the death of the testator his estate was valued at slightly in excess of $1,000.000 and consisted largely of securities.

The dispositive issue is whether the trial court's failure to find undue influence on the part of Jimmie Jenkins was contrary to the great weight and clear preponderance of the evidence.

The law governing the proof of undue influence and the scope of appellate review is well established. Undue influence must be proved by clear, satisfactory and convincing evidence and a finding by the trial court on the issue will not be upset on appeal unless it is against the great weight and clear preponderance of the evidence. Estate of Von Ruden (1972), 55 Wis.2d 365, 373, 198 N.W.2d 583; Estate Velk (1972), 53 Wis.2d 500, 192 N.W.2d 844; Will of Cooper (1965), 28 Wis.2d 391, 137 N.W.2d 93.

Therefore, on appeal we examine the record, not for facts to support a finding the trial court did not make or could have made, but for facts to support the finding the trial court did make.

Undue influence may be proved under either of two theories, both are advanced on this appeal. The first is founded upon the four elements of susceptibility, opportunity to influence, disposition to influence, and coveted result. Will of Freitag (1960), 9 Wis.2d 315, 101 N.W.2d 108; Estate of Von Ruden, supra. The second theory is based upon a confidential relationship between the testator and the beneficiary coupled with suspicious circumstances. Will of Faulks (1945), 246 Wis. 319, 17 N.W.2d 423; Will of Cooper, supra.

In the instant case, the trial court found Jenkins had the opportunity to exert undue influence; that he had no disposition to unduly influence the testator; that Hamm was not susceptible to undue influence by Jenkins or any other person prior to and at the time he executed the will; and that the will did not reflect a coveted result by Jenkins or any other person. The trial court also found a confidential relationship existed between Jenkins and Hamm and that there were no suspicious circumstances surrounding or relating to the execution of the will.

We summarize the more relevant portions of the testimony, which we reviewed as a As a result of the stroke Hamm suffered in 1954, his right side was partially paralyzed and he, therefore, could not walk or write unassisted. His throat was also affected and his speech was impaired. The issue of competency is not raised. It appears that prior to 1963, he frequently drank alcoholic beverages to an excess; however, after 1963, his habits changed and this was no longer the situation.

whole, to determine what is the great weight and clear preponderance of the evidence.

The trial court found that he was alert and competent. His doctor testified that although Hamm was physically incapacitated, he was alert, intelligent and responsible up until the last two weeks of his life when he was confined to the hospital for what proved to be his terminal illness. The account executive who handled his investment activity during the last eight or ten years of his life testified that Hamm was intelligent, had excellent business acumen and could not be influenced.

The record reflects that Hamm enjoyed good relations with his family. His brother, Gilbert, was an accountant and prepared Hamm's income tax returns until Gilbert died in 1960. From 1961, until the testator's death, lawyer Ralph J. Jeka prepared his income tax returns and performed legal services for him which consisted of real estate transactions and will drafting, with the exception of an occasion in 1965, which will be referred to hereinafter. Jeka saw Hamm on an average of six times per year.

For a number of years prior to 1953, Hamm and his sisters Irene and Phyllis lived together. Phyllis was financially self-sufficient and moved from the family home in 1953. She continued to visit him thereafter and partially took care of his needs. Irene remained in the home with Hamm, did the cooking and cleaning and managed the household on $100 per month supplied by Hamm. In the period from the time of Hamm's stroke in 1954 until 1965, at least 12 different male attendants were employed to care for him. All were discharged or left for various reasons.

In early 1965, Hamm was without an attendant and entered the Green Tree Nursing Home. While there he met Jimmie Jenkins, liked him and hired him as an attendant. Jenkins occupied this position until testator's death. In February, 1965, Jenkins accompanied Hamm from the Green Tree Nursing Home to Hamm's home. In September, 1965, Hamm entered the Pavilion Nursing Home. When this move took place Jenkins took over the writing and recording of the checks, a task formerly performed by Irene. Some of the checks were made out to cash with Jenkins aiding Hamm's hand and Jenkins depositing the proceeds in his own account and writing checks to pay Hamm's expenses.

At the commencement of Jenkins' employment his net worth was meager. When Hamm died, Jenkins' net worth was $36,000, all attributable to funds received from the testator. Hamm's fondness for Jenkins and his dependency upon him continued to increase as the years passed. Among other things, Hamm enjoyed traveling and did so prior to his stroke in 1954. From 1954 to 1965, he did no traveling. With Jenkins as an attendant he was again able to resume traveling. At Hamm's expense, they traveled extensively, both abroad and in the United States. On occasion, the Jenkins family accompanied them. Jenkins cared for Hamm from 7 a.m. to 5 p.m. six days a week and had access to his Cadillac automobile. Jenkins' brother, John, cared for him on the seventh day.

There is no dispute about the fact that Jenkins was the best attendant Hamm ever had; that Hamm not only liked Jenkins, but was physically dependent upon him and apprehensive of losing his services. Hamm frequently visited the Jenkins family and occasionally the family of John Jenkins. It is practically undisputed that Hamm was a very frugal person and a shrewd businessman. Among other things, he constantly studied the Wall Street Journal and from The four wills he executed in his lifetime were dated February 15, 1965, August 24, 1965, July 8, 1966, and April 4, 1970, this latter one being the will admitted to probate.

the time he executed the first of his four wills in 1965, until his death in 1973, his assets approximately doubled in value, from $500,000 to over one million dollars.

The two 1965 wills were drafted by lawyer Irvin Charne. Irene Hamm testified that one Carl Elbinger was a client of Mr. Charne and recommended him. Neither she nor the testator knew Mr. Charne. The record does not disclose whether Irene knew that Ralph J. Jeka had been Hamm's lawyer since 1961. The first of these wills was executed during Hamm's short stay at the Green Tree Nursing Home. The second was executed at his home and shortly before he entered the Pavilion Nursing Home. The testimony surrounding the execution of the second will is conflicting and we find it to be of no particular probative value. This will provided for a specific bequest to Jenkins in the amount of five percent of his estate. The conditions of this bequest required Jenkins to continue working for Hamm until Hamm's death unless unable to do so by no fault of his own.

The third will was executed July 8, 1966. This will was drafted by his lawyer, Ralph J. Jeka, who later also did legal work for Jenkins. This will established a $35,000 trust for Irene and bequeathed $50,000 to Phyllis and his...