Hulett's Estate, In re

• Decision Date: 02 January 1959
• Citation: 94 N.W.2d 127,6 Wis.2d 20
• Parties: In re ESTATE of Lynn M. HULETT, Deceased. Geneva GRAFFIN, Appellant, v. Barbara L. HULETT, Ex'x, etc., Respondent.
• Court: Wisconsin Supreme Court

Page 127

94 N.W.2d 127

6 Wis.2d 20

In re ESTATE of Lynn M. HULETT, Deceased.

Geneva GRAFFIN, Appellant, v. Barbara L. HULETT, Ex'x, etc., Respondent.

Supreme Court of Wisconsin.

Jan. 2, 1959.

Curley & Sheedy, Milwaukee, William P. McGovern, Milwaukee, of counsel, for appellant.

John L. Newman, Milwaukee, Robert F. Kirst and A. L. Skolnik, Milwaukee, of counsel, for respondent.

FAIRCHILD, Justice.

It was established that the propounded codicil was signed in Illinois and that Hulett was a resident of Wisconsin. Sec. 238.07, Stats. provides: 'A last will and testament executed without this state in the mode prescribed by the law either of the place where executed or of the testator's domicil shall be deemed to be legally executed and shall be of the same force and effect as if executed in the mode prescribed by the law of this state; provided, said last will and testament is in writing and subscribed by the testator * * *' It follows that the propounded codicil was sufficiently executed if the execution met the requirements of either the Wisconsin or Illinois statute. Mrs. Graffin contends that the witnesses signed in the presence of each other and that the requirements of sec. 238.06, Wis.Stats. were fulfilled. She further contends that Ch. 3, par. 194, Smith-Hurd Illinois Annot. Stats., does not require that the witnesses subscribe in the presence of each other, and that the execution of the propounded codicil fulfills the requirements of the Illinois statute in any event.

Mrs. Hulett argues that, as found by the trial court, the witnesses did not subscribe in the presence of each other. She has not disputed Mrs. Graffin's claim as to the applicable law of Illinois, but contends that since Mrs. Graffin did not, in the trial court, give any notice of such claim, Mrs. Graffin can not rely upon the Illinois law upon appeal.

1. Did the witnesses subscribe in the presence of each other? Sec. 238.06, Wis.Stats. requires that a will be 'attested and subscribed in the presence of the testator by two or more competent witnesses in the presence of each other.' The defect asserted is that Mr. Kohen and Mr. Papia were not in the presence of each other when they attested and subscribed the codicil. No decision dealing with this precise question has been cited to us. There are, however, decisions in Wisconsin and elsewhere dealing with the question of when witnesses can be said to be in the presence of the testator when attesting and subscribing a will. In re Will of Meurer, 1878, 44 Wis. 392, 400, it was held that, 'It is not necessary that the evidence should show that the testator in fact saw the witnesses subscribe their names; it is sufficient if he could have seen them from the place where he was sitting.' In that case the witnesses signed in a room different from the one in which the testator was, but it would have been possible for the testator to see the witnesses through the open doorway if he had cared to see them.

In another case the testator was only a few feet away from the witnesses when the witnesses signed, but they were in another room where he could not see what was being done. In re Estate of Wilm, 1923, 182 Wis. 242, 244, 196 N.W. 255. It was said, 'Even if the word 'presence' is construed to mean within a sphere where the senses of the testator can inform him of the performance of the act, the present case would not come within the statute, for he could neither hear ordinary conversation in the kitchen nor see what was being done on the kitchen table from any point from the bedroom he occupied. It is true the distance from the kitchen table through the wall of the bedroom to the bed was perhaps less than 10 feet, but the solid wall prevented both the senses of hearing and seeing from ascertaining what was being done.'

In the situation before us the two witnesses were close enough to each other to have meet the standard of physical proximity stated in the two cases cited. Nevertheless, we hold that the concept of presence includes a state of mind, as well as physical proximity. We think that under sec. 238.06 each witness must be aware that the other is signing. In 1 Page, Wills, page 640, sec. 354, it is said, 'A person in whose presence an act is done must be informed of what is taking place so that he actually knows what is being done; or the act is not done in his presence, no matter how close to him it may be done. A will is not signed in the presence of one who is attending to another matter and does not know what is taking place until he is told later.'

The propounded codicil contained no attestation clause and the complete and positive testimony of the witnesses does not permit reliance upon any presumption of due execution. It was clearly established that when each witness signed the document the other was totally unaware of the signing; Kohen remained unaware of Papia's signing until long afterward. Therefore the requirements of sec....