Heinemann v. Rosier (In re Pardee's Estate)

• Court: Wisconsin Supreme Court
• Writing for the Court: FOWLER
• Citation: Heinemann v. Rosier (In re Pardee's Estate), 240 Wis. 19, 1 N.W.2d 803 (Wis. 1942)
• Decision Date: 10 March 1942
• Parties: In re PARDEE'S ESTATE. HEINEMANN et al. v. ROSIER et al.

240 Wis. 19

1 N.W.2d 803

In re PARDEE'S ESTATE.HEINEMANN et al.

v.ROSIER et al.

Supreme Court of Wisconsin.

Jan. 13, 1942.

Rehearing Denied March 10, 1942.

Appeal from a judgment of the County Court of Outagamie County; Thomas H. Ryan, Judge.

Reversed.

Proceeding in the matter of the estate of Charles A. Pardee, deceased, wherein Grace Pardee Heinemann and others, executors of the will of Charles A. Pardee, deceased, filed petition to have money received by specified children and grandchildren of testator adjudged advancements, opposed by Jane A. Rosier and others. From a judgment for petitioners, Jane A. Rosier and others appeal.-[By Editorial Staff.]

Reversed, with directions.

Petition in probate in the estate of Charles A. Pardee, Sr., by the executors of his will praying that money received by specified children and grandchildren of the testator be adjudged advancements and offset against the distributive shares of the recipients and the lineal descendants of May Pardee Douglas, a child of the testator who predeceased him. From a judgment in accord with the prayer of the petition, the lineal descendants of the deceased child and the grandchildren recipients appeal.

Charles A. Pardee died October 7, 1939, leaving surviving his widow, a son Charles, a daughter, Grace Heinemann and grandchildren, children of Charles, Grace and his daughter May Douglas who had predeceased him on July 30, 1939. He left a will which was admitted to probate. His three children had all received from him large sums of money, May to an amount largely in excess of the others. The questions for decision are whether the items of money so received are to be considered as advancements, loans or gifts, the inquiry being particularly directed to the money received by May, and whether the items to May can be relieved from the effect of cancellations thereof made by the testator.

The testator had kept a detailed book account showing in detail money received by May, beginning January 3, 1908, including items as low as fifty cents, some noted as loans, some as notes, some as Christmas and birthday presents, some undesignated, and containing money paid to or for May's children, as for music lessons, school expenses, clothing and presents. Items received by May from November 3, 1923, on were entered on a ledger, on which the first item entered is “To Greely House, $4,000.” There is another ledger account noted as “Greely House Account” totaling $4,000 the first item of which is dated October 26, 1908. The last page of May's ledger account has as its first item “Bro't forward $5,091.18.” At the foot of the page is the entry in the testator's handwriting: “All accounts on this page are fully cancelled this August 15, 1939.”

After the testator's death three notes were found in the wastebasket in the room where he kept his desk and safe, all torn twice across. One dated April 11, 1938, for $25 had written across its face in the testator's handwriting: “August 2, 1939. This note is this day cancelled. C. A. Pardee, Sr.” August 2d was the date of May's funeral. The two other notes were for $50 each and dated August 11 and August 28, 1933. It appears that there had been a large number of notes signed by May, described as a bundle two inches thick. It does not appear by direct testimony what became of these notes, or when they disappeared, but the inference seems plain that they were destroyed by the testator either when he disposed of the three notes found or when he wrote the entry of cancellation on May's ledger account and that the testator intended to cancel them as he had cancelled the account which included them.

The three notes referred to, and notes of Charles and of grandchildren of the testator among the assets of his estate were all in the same form. The form was furnished by Judge Heinemann, husband of Grace, in 1923, and is as follows:

“$--- Appleton, Wis. ---, 1923.

On Thirty days demand after date, I promise to pay to the order of C. A. Pardee, his executor or administrators the sum of --- Dollars at the ---Bank of Appleton, Wis. In Lawful money with interest at the rate of - per cent per annum until paid. This note and the amount named therein if unpaid at the time of my death is considered and it is hereby agreed that any sum remaining thereon is to be considered an advancement against any sums due me from the estate of the payee herein, and to be deducted and deemed as cash.”

The will of the testator was dated September 24, 1931. It makes no reference to “advancements” and contains no direction that money received by his children or grandchildren or unpaid notes executed to him by them shall be offset against their respective shares under the will. The will made specific provision for his wife, which she accepted, and a few specific legacies. Paragraph Eighth devised a specific parcel of land to the testator's three children, naming them specifically, to each “an undivided 1/3 thereof.” Paragraph Ninth made specific provision for the named children of Charles Pardee, Jr. Paragraph Tenth made specific provision for the testator's other grandchildren, who should be living at his death. Paragraph Eleventh gave the residue of the estate to the testator's “children, May Pardee Douglas, Grace Pardee Heinemann and Charles Arthur Pardee, Jr., share and share alike,” and directed conversion of the assets to cash or “well invested securities” and payment one-fifth in one, two, three and four years and the remainder in five years after his death.

May left surviving her three children who were all living at the testator's death. Whatever would have gone to May had she survived the testator goes to her “lineal descendants” under sec. 238.13, Stats., which will in the opinion be referred to as “the statute,” and reads as follows: “When a devise or legacy shall be made to any child or other relation of the testator and the devisee or legatee shall die before the testator, leaving issue who shall survive the testator, such issue shall take the estate so given by the will in the same manner as the devisee or legatee would have done if he had survived the testator unless a different disposition shall be made or directed by the will.”

Bradford & Derber, of Appleton, for appellants.

Homer H. Benton and Claude G. Cannon, both of Appleton, for respondents.

FOWLER, Justice.

The case is an appeal from a judgment of the county court of Outagamie county, in probate. The judgment is incorporated in the concluding sentence of an eight page typewritten document signed by the trial judge headed “Decision.” There are no “Findings of Fact and Conclusions of Law” although interspersed in the document with statements of contentions of the parties, statements of testimony and statements by the trial judge by way of argument certain statements may be found that may by inference be taken as conclusions of ultimate material facts and of law. The concluding sentence which incorporates the judgment reads as follows: “Therefore it is adjudged that May Pardee (Rosier) Douglas received at different times from her father, C. A. Pardee, during his lifetime, as advancements, various sums of money aggregating $9,368.20 on which there is now due as accrued interest $16,023.28, in all the sum of $25,728.36.”

The judgment was rendered upon petition of the executors of the will alleging among other things that during thirty years prior to the testator's death the testator from time to time “loaned” various sums of money to his daughter May, who predeceased him, to evidence which she executed to him her notes promising to pay the sums received “on thirty days' demand” to the testator or his personal representatives with interest and providing that if unpaid at the testator's death the sum due thereon “should be considered an advancement” against any sum due the maker from the estate of her father; and that at the time of the testator's death there was due and unpaid $9,695.08 principal and $16,033 interest.

It was also alleged that large sums were also loaned by the testator to his son Charles, and two daughters of May, for which like notes were given by the respective parties, which were unpaid.

It was further alleged that when the testator died he believed that as May predeceased him and as he had made generous provision in his will for her children, her children would not receive her share of the estate under his will, and as May owed as much as or more than her share of his estate her indebtedness “cancelled and offset” her such share, and that the legacies and devises to May “lapsed” and the residue of the estate would go to Grace and Charles equally. The prayer of the petition was that the court determine the amount due on their notes or loans for money received by May and her children and Charles and that the amount due from each be offset as cash advancement against his or her share of the estate. The children answered the petition admitting receipt of money by their mother and her daughters from the testator of unknown amounts, denying the amount was as stated, denying the execution of notes by the mother for the amounts received, denying that the amounts received were loans and alleging they were gifts, denying that the amounts received were advancements or can be deducted as advancements from the share their mother, had she survived the testator, would have received under the will or against their shares under the will and the statute as surviving children of their mother, denying that sums received by May's daughter were advancements and set up that the statute of limitations bars recovery of the amounts received by their mother if they are not considered as gifts.

The respondents seem to claim that the appellants have no appeal from the judgment appealed from because they offered no evidence on the hearing. This claim is untenable. The only claim that could be made in this respect with any show of reason would be that the thing appealed from is not...