In re Staab's Estate

• Decision Date: 05 February 1918
• Parties: IN RE STAAB'S ESTATE. APPEAL OF HEINZ ET AL.
• Court: Wisconsin Supreme Court

166 Wis. 587

166 N.W. 326

IN RE STAAB'S ESTATE. APPEAL OF HEINZ ET AL.

Supreme Court of Wisconsin.

Feb. 5, 1918.

Appeal from Circuit Court, Dodge County; Martin L. Lueck, Judge.

In the matter of the estate of Clara Staab, deceased. From a decision of the circuit court affirming with leave to amend petition an order of the county court dismissing a petition of Melita Heinz and another, they appeal. Reversed and remanded to the circuit court to be remanded to the county court.

On June 13, 1911, one Clara Staab made what was claimed to be her last will. June 1, 1914, upon hearing in the county court of Dodge county findings were made to the effect that at the time of the making of the will said Clara Staab was of full age, of sound mind and memory, and that said will was duly executed, and thereupon it was admitted to probate. No appeal was taken from the judgment or order so admitting it to probate.

On June 11, 1915, Melita Heinz and Edmund Teichmiller made petition to the same county court in substance alleging as follows: That Clara Staab was, upon due proceedings had, committed to the Northern Hospital for Insane at Oshkosh, in June, 1890, and remained at that institution under such commitment until the time of her death. A guardian was also appointed for her property prior to June 13, 1911. That she left no children, her nearest relatives being sons and daughters of her deceased sister and brother. That the petitioners were two of the children of the deceased sister and were not named in the will. That other nieces and nephews named in the petition were legatees and devisees under the will. That, as petitioners were informed and verily believed, at the time when the last will was executed and signed the said Clara Staab was not of sound mind and memory, was incapable of making such will, and was under undue influence exerted by the legatees and devisees named therein. That she never had been discharged from the hospital for the insane to which she had been committed in 1890. That she was under guardianship and incapacitated to execute a last will and testament. That the petitioners intended in good faith to contest probate of the pretended will upon the grounds as above stated, but that without fault on their part they did not do so and did not appeal from the order and judgment admitting the alleged will to probate or file any claim against the estate within the time required by law, for the reasons that all of the legatees and devisees named in said will, knowing and having been informed that the petitioners intended to contest said last will and testament, and knowing that the said deceased was not competent to execute said will for the reasons above stated, promised and agreed, in consideration of the petitioners surrendering their rights to contest the will, that the petitioners should be paid out of the estate of said deceased the sum of $700 each. That the petitioners relied upon the statements made by the legatees and devisees and believed that the agreement would be performed; and then found, the time to appeal from such order having expired, that the legatees and devisees did not intend to perform their part of the agreement. The petitioners asked that the agreement between them and the legatees and devisees be ratified and a trust created in favor of petitioners upon the funds in the hands of the executor to the amount of $1,400, and that such trust be declared a lien upon the property, and that the executor be not discharged from his duties until he had paid to the petitioners the $1,400; and for such other and further order or relief as under the circumstances may be just and equitable.

The will is not in the record before us, and nothing is here shown as to the nature of the property she left, or the manner of distribution. No testimony was taken upon this petition in either of the courts below.

Objections treated as a demurrer to this petition were interposed on behalf of the executor of the estate of the deceased and one of the heirs at law and legatees, and a motion by them for the dismissal of the petition was granted by the county court. An appeal was taken to the circuit court, the order of the county court was affirmed with leave to the petitioners to amend the petition, and from the order of the circuit court an appeal was taken to this court.Lueck & Kuenzli, of Watertown (Otto Kuenzli, of Watertown, of counsel), for appellants.

George B. Swan, of Beaver Dam, for respondent.

ESCHWEILER, J. (after stating the facts as above).

[1] By the cases of In re Will of Dardis, 135 Wis. 457, 115 N. W. 1089, 23 L. R. A. (N. S.) 783, 128 Am. St. Rep. 1033, 15 Ann. Cas. 740, and Will of Rice, 150 Wis. 401, 136 N. W. 956, 137 N. W. 778, it is the declared law of this state that, given a valid will and a lawful declaration by a competent testator as to the manner in which the property that was his is to be disposed of after his death, it is the duty of the court having probate of the estate to carry out the wishes of such testator regardless of the wishes or agreements of those who may be beneficially entitled in the estate; that parties interested in such an estate cannot make a valid and binding contract or stipulation providing for such a different disposition which will be enforced by a court. It is the duty of the court as an obligation resting upon it as a court, as a duty ex officio, and for reasons of public policy, to see to it that the wishes of the one who is no longer in existence as to the lawful disposition of that which was once his shall be fully and properly carried out. There is no disposition to recede from the policy declared in those cases...