In re Johnson's Estate

• Decision Date: 13 January 1920
• Citation: 175 N.W. 917,170 Wis. 436
• Parties: IN RE JOHNSON'S ESTATE.
• Court: Wisconsin Supreme Court

170 Wis. 436

175 N.W. 917

IN RE JOHNSON'S ESTATE.

Supreme Court of Wisconsin.

Jan. 13, 1920.

Appeal from Circuit Court, Racine County; E. B. Belden, Judge.

In the matter of the estate of Theodore W. Johnson. Application for probate of decedent's will by Mrs. L. C. Hahn, contested by John D. Rowlands, public administrator. From judgment directing probate of the will, and from orders of allowance of fees to an expert witness and attorneys, contestant appeals. Judgment and order allowing counsel fees affirmed, and order allowing compensation to the witness reversed.

Appeal from a judgment and two orders of the circuit court for Racine county; E. B. Belden, circuit judge. Affirmed as to the judgment and one order. Reversed as to the other order.

This appeal is from two orders subsequent to and from a judgment of the trial court reversing a judgment of the county court for Racine county. The county court refused, and the circuit court granted, probate of the following writing, alleged to be the last will and testament of one Theodore W. Johnson, deceased:

“September 6th, 1895. This is the will of Theodore W. Johnson. Mrs. L. C. Hahn is to take entire change of all moneys or anything I leave or have. But first she is to see that all my debts are paid. Then he wants Katie Marten to have $500 for being so good to him. After this Nellie Newport is to get $200. After this Mrs. Cane, next door is to get $200. To Mr. J. Wilson $200, then to Mr. C. P. Hanson $87 and what interest the law allows. Then to Mrs. L. C. Hahn for kindness to me and after attending faithfully to my wishes I leave to her all moneys there is left or whatever else belonged to me.

Theodore W. Johnson.

“William J. Hahn.

L. C. Hahn.”

And on the page opposite thereto, in Mrs. L. C. Hahn's handwriting, as was the body of the instrument itself, was the following:

“And I am to see that his grave is kept green--not Irish. And to little Goldie Locks, she is to have $5.00 worth of chocolates.”

All this was done with an indelible lead pencil, in a small account book of about eight by three and one-half inches in size.

Johnson died at Racine March 3, 1917, unmarried, and then about 64 years of age.

Shortly thereafter the public administrator of Racine county, John D. Rowlands, contestant and appellant herein, was granted administration of the estate. A search disclosed assets aggregating, at the time of the hearing in the court below, about $83,000, all in personal property except one small piece of real estate appraised at about $2,500.

Johnson came from Denmark to this country at the age of about 18, and lived in Racine substantially all the time thereafter. He was eccentric in his ways, penurious, and very secretive as to his personal matters and family affairs. He originally was a shoemaker, then ran a small shoe store, and after a few years traded that for a small farm, and thereafter devoted his time to the purchase and sale of real estate and securities. In the last years of his life he occupied for living quarters a small room in the upper story of an old store building. He was removed to the local hospital a few days before his death, leaving in his unlocked room a satchel unlocked, in which were found promissory notes and land contracts constituting his estate. The mortgages securing the payment of such notes were found in an unlocked trunk in a small room in the rear of the one building that he owned. There were in force at his death upwards of 50 mortgages and contracts, mostly in his handwriting. No letters or papers were found among his effects purporting to be from or concerning any relatives. He carried one or more bank accounts for many years prior to his death.

The proponent, Mrs. L. C. Hahn, in 1895 and some time prior thereto had been conducting a millinery shop on Main street, in Racine. Mr. Johnson at that time was living near there and taking his meals at the house of a Mrs. Cane, one of the beneficiaries named in the instrument. He was quite a frequent visitor at Mrs. Hahn's place of business. For some time prior to September, 1895, he suffered from boils, carbuncles, and running sores, which needed frequent attention. Help in giving such attention and dressing the sores had been given by Mrs. Hahn, as well as by Miss Katie Marten and Miss Nellie Newport, both employés of Mrs. Hahn, and also mentioned in said instrument. The circumstances surrounding the alleged signing are related by the subscribing witness William J. Hahn, and quoted by appellants in their brief. After telling of the witness' arrival at Mrs. Hahn's store, and of the deceased speaking to him, he proceeds as follows:

“Laying his hand on Kitty Marten's shoulder, he (Johnson) says, ‘This girl has just saved my life;’ and I said, ‘In what way?’ He says, ‘Why, she has been doing for me all the time, and taking care of me.’ I said, ‘Well, if she has, why don't you do something for her? Why don't you leave her something; do something for her;’ and, as the phrase was, I remember saying, ‘Leave her your old shoes;’ and in return he said, ‘Well, I will.’ He says, ‘I will make my will right now,’ he says, ‘if Mrs. Hahn will write it.’ Of course we all looked up surprised, and Mrs. Hahn said, ‘All right.’ She turned to her little cash book--we were all standing around the desk--and she wrote as he dictated, just as is written in that book. Then, after it was all written, he took it, read it over, and he signed it; then handed the book to me, and he said, ‘Mr. Hahn, you sign that.’ I says, ‘All right.’ And he asked Mrs. Hahn to sign it; and that is all that was said at the time that I remember.”

The same witness further testified in substance:

“I used the pencil attached to the book, and Johnson and Mrs. Hahn used the same pencil, and it was all done at that desk. Mrs. Hahn signed next. I saw her sign. It took about 30 minutes to three-quarters of an hour for Johnson to dictate and Mrs. Hahn to transcribe the instrument. I don't know as there was any talk going on at the time. Johnson would dictate and stop and think and go on with the dictation, and Mrs. Hahn would write until it was finished. Mrs. Hahn at one place stopped and asked him if there was not somebody else he wanted to leave something to, and he said, ‘No,’ that he had no relatives. Mr. Johnson said nothing about what the kindness consisted of in connection with the legacy to Mrs. Hahn. Everybody knew what he meant. After the document was signed by we three, nothing more was said; then we had a general conversation.”

There was testimony to the effect that Johnson signed the instrument while he was standing at the end of a desk, the top of which slanted downward from him, the lower end about 30 inches from the ground, by artificial light, with a short indelible pencil, in a leaning position, and while still afflicted with boils on his neck and a running sore on his leg (it being claimed that some or all of these things, particularly the condition of his neck, made him take a somewhat strained and unnatural attitude while writing his name).

There were also present at this time, according to the testimony, in addition to the two who who signed as subscribing witnesses,the little child of Mrs. Hahn, referred to as Goldie Locks, the husband of the mentioned Mrs. Cane, who died prior to the trial, a Mrs. C. E. Thellar, a sister-in-law of Mrs. Hahn and then visiting from New York, the Miss Katie Marten mentioned in the will, and Marshall Forest, a friend of the Hahn family, then living in the neighborhood. Forest subsequently moved to Arkansas, and, upon seeing in the Racine paper an account of the death of Mr. Johnson, caused a letter of congratulation to be sent to Mrs. Hahn on her being interested in the estate. The depositions of Forest and Mrs. Thellar were taken on behalf of the proponent.

The testimony disclosed that the account book in which the writing appears had been kept before and for several years after 1895 in Mrs. Hahn's store in connection with her business. Mrs. Hahn testifies that in 1900 she moved to New York, and this notebook was placed in a small paper box with some small articles belonging to her child, and carried with them in a trunk to New York, and brought back with the family on their return to Racine and stored in their home. After hearing of Mr. Johnson's death she claims to have made a long search for it, and finally discovered it still in the box within the same trunk. Immediately upon its being found she presented it for probate on April 10, 1917.

Upon the petition for the probate of said instrument as the will of Johnson objections were interposed on behalf of Mr. Rowlands as administrator, and also on behalf of Lars Hansen Christiansen, of Council Bluffs, Iowa, claiming to be a cousin and heir at law, and by the Danish consul at Chicago, on behalf of persons claiming to be foreign heirs, and all appellants herein.

Upon the first hearing testimony was offered by the contestants, including that of an expert on handwriting, to the effect that the signature purporting to be that of Theodore W. Johnson to the instrument was spurious, and the county court so held, and for that reason denied probate.

Upon appeal trial was had in the circuit court for Racine county before a jury.

The proponent, Mrs. Hahn, was permitted to testify, both in the county court and circuit court over objections interposed by the contestants as to her competency to so testify, as to the writing of the instrument, as to the facts and circumstances connected with the signing of the same, and as to her acquaintance with the deceased.

The trial court submitted to the jury an advisory verdict of but one question of fact, which was answered to the effect that the signature of Theodore W. Johnson affixed to the writing in question was the genuine signature of Theodore W. Johnson.

The contestants moved to set aside the answer of the jury, and for a judgment affirming the judgment of the county court and...