In re Zartner's Will

• Decision Date: 08 April 1924
• Citation: 198 N.W. 363,183 Wis. 506
• Parties: IN RE ZARTNER'S WILL.
• Court: Wisconsin Supreme Court

183 Wis. 506

198 N.W. 363

IN RE ZARTNER'S WILL.

Supreme Court of Wisconsin.

April 8, 1924.

Appeal from Milwaukee County Court; M. S. Sheridan, Judge.

In the matter of the last will of Emma Zartner, deceased. From an order of removal of Charles Holzhauer as executor, he appeals. Order affirmed.

This is a proceeding for the removal of an executor on the grounds of misconduct on his part while acting as agent of the decedent, on account of which there arose serious conflicts of interests between the executor and the estate. Other facts will be stated in the opinion.J. F. La Boule and John O'Meara, both of Milwaukee (McGovern, Hannan, Devos & Reiss, of Milwaukee, of counsel), for appellant.

Glicksman, Gold & Corrigan, of Milwaukee (Walter Corrigan, Jr., of Milwaukee, of counsel), for respondents.

JONES, J.

The following is a summary of the findings of the trial court: The court found that about February 1, 1922, the appellant was employed by Emma Zartner to act as her agent to sell certain premises and buildings in Milwaukee; that thereafter he interviewed one person with respect to such sale, and received an offer of $75,000, which proposition he rejected, and thereafter was offered $80,000, which offer he rejected; that thereafter an offer of $85,000 was made and rejected, all of which took place prior to February 16, 1922; that before that date the appellant went to the testatrix and advised her that he had received an offer of $75,000, and she took the same under advisement, and prior to the date last named she advised appellant that she would accept $75,000 net; that appellant had asked the testatrix if it made any difference to whom she sold the property at that price, and she said that it did not; that appellant at no time told decedent that he had received any offer of more than $75,000, and she had no knowledge of other offers; that the prospective purchaser was able, ready, and willing to pay the purchase price offered; that appellant proceeded to have the decedent execute and deliver a deed to William Daehn for a consideration of $75,000, $20,000 of which was paid to her in cash by appellant out of his own money; that appellant then caused Daehn to execute and deliver a mortgage on the property securing the balance of the purchase price, $55,000; that appellant caused Daehn to execute and deliver a deed of the property subject to the mortgage to Albert Dorrler who paid no consideration; that the appellant paid Daehn $50 for his part in the transaction; that when Daehn took record title to the property the appellant caused him to execute and deliver to the appellant a deed of an undivided one-half interest in the property, but kept the same from record and destroyed it after he had caused the deed to be executed and delivered to Dorrler; that when Dorrler had taken title appellant caused him to convey the property to himself, the appellant, but did not record the deed until May, 1923; that appellant caused the sum of $95 in revenue stamps to be placed on the deed from Mrs. Zartner to Daehn, intending to indicate that the consideration was $20,000 more than it actually was; that Daehn never had any interest in the property, but took the deed wholly in the interest of appellant, and with that understanding; that Mrs. Zartner had great confidence in the appellant as her agent, and never discovered that he had been offered more than $75,000 net to her; that there was a fiduciary relation between them; that appellant made no effort to receive a better price for the property, did not advertise the same, nor place it before any prospective purchaser other than the one referred to; that when appellant refused to sell the property to the prospective purchaser he told him that the same had been sold to some one else for a better price; that appellant acted in bad faith and fraud under his agency, and fraudulently induced Mrs. Zartner to convey the property in such manner that he could gain title for himself when he might reasonably have received a much better price, and at least $85,000; that at the time of the transaction the property was reasonably worth $100,000 or more; that appellant is adversely interested in the estate; and that an action should be brought against him by an administrator with the will annexed to protect the rights of the estate; and that he was unsuitable to discharge the trust as executor.

As conclusions of law it was found that appellant is unsuitable to discharge the trust and should be removed as executor; that Neele B. Neelen should be appointed in his place and required to give bond in the sum of $85,000.

Mrs. Zartner was a widow 66 years old, and there was evidence that she had consulted fortune tellers as to the advisability of selling the property. She was never advised of the facts relied on by respondents as constituting the misconduct of her agent, and the proof showed that she was satisfied with the transaction. The most important testimony relied on by respondents was that of the person who made the offer of purchase. This testimony was contradicted by appellant and in some respects by several witnesses.

Defendant produced the greater number of witnesses, but quite important facts embodied in the findings were undisputed. These facts were doubtless considered by the trial court as sufficient to turn the scale in favor of respondents.

The trial court saw the witnesses, and heard the testimony, and we cannot say that his findings were not sustained by the evidence. Since there may be further litigation between the parties, we do not think it best to comment in detail upon the evidence.

The proceeding is based on section 3803, Stats., which gives to the county court the power to remove executors, administrators, guardians, and trustees. The following is the portion of the section which is relied on:

“Or shall * * * become insane or otherwise incapable or unsuitable to discharge the trust, the county court may remove such executor.”

[1] As argued by appellant, a statute specifying the grounds of removal is usually held to preclude a removal upon grounds not specified. On this premise there is based the argument that, since the statute does not provide for removal for conduct prior to the appointment by the testator, there could be no valid removal in this case, since the misconduct all occurred before the execution of the will. To sustain this proposition counsel cite Saxe v. Saxe, 119 Wis. 557, 97 N. W. 187. This was a case where the heirs of deceased opposed the appointment of the person named as executor, urging as objections temper, disposition, habits, and character which rendered him obnoxious to parties interested in the estate. Under the statute which provided that “the county court shall issue * * * to the person named executor therein, if he is legally competent.” St. 1923, § 3792.

The court held that the objections went to other matters than his capacity to do business; that the statute was mandatory; and that the objections were not available under the statute to set aside the express wish of the testator. It is true the court, in commenting on the case of Estate of Pike, 45 Wis. 391, said:

“It will be observed that the several things which may thus authorize removal are all such as occur after he is appointed. It is enough to say that the case at bar does not come within the provisions of that section.”

In the Saxe Case there was no question of removal before the court. Another statute than that relating to removals was being construed, and we do not consider that the language last quoted should be given the effect claimed by counsel.

The Estate of Pike, supra, was an action brought under the statute for the removal of an executor. Among other things it was found by the trial court that--

“At the time of filing the petition there was, and still continues to be, an acrimonious and hostile feeling between the appellant and respondent, which intercepts and prevents such a management and husbanding of the estate of Oliver Pike, deceased, as prudence, sound policy and the interests of the devisees and creditors require.”

It was held that this finding alone, if established by the proofs, would make a case for the exercise of the discretion of the court.

“Such a condition of affairs, whether chargeable to the executor or not, would inevitably render the execution of the trust perplexed or difficult, and would be likely to interfere with the proper management and disposition of the estate.” Estate of Pike, 45 Wis. 391, 396.

It was further held that our statute was substantially like that of Massachusetts and had there received judicial construction long before it was enacted here, and consequently should be given the same construction in this state.

In that case it was argued, as here, by counsel for the executor that it must be shown that there had undergone some change of character affecting his fitness for the trust.

It was the rule early adopted in Massachusetts that if it happened that an executor or administrator is unsuitable he may be removed and that he is deemed unsuitable when he has conflicting personal interest which...