Kaiman's Estate, In re

• Decision Date: 04 April 1961
• Citation: 108 N.W.2d 379,13 Wis.2d 201
• Parties: In re ESTATE of Jacob KAIMAN, Deceased. Benno KAIMANN, Appellant, v. Sol T. GOODSITT et al., Respondents.
• Court: Wisconsin Supreme Court

Page 379

108 N.W.2d 379

13 Wis.2d 201

In re ESTATE of Jacob KAIMAN, Deceased.

Benno KAIMANN, Appellant, v. Sol T. GOODSITT et al., Respondents.

Supreme Court of Wisconsin.

April 4, 1961.

Eisenberg & Kletzke, Kenneth Z. Kaiman, Milwaukee, Roland J. Steinle, Sr., John W. Bernard, Milwaukee, of counsel, for appellant.

Raskin, Zubrensky & Padden, Milwaukee, Max Raskin, William F. Quick and Leonard S. Zubrensky, Milwaukee, of counsel, for respondents.

BROWN, Justice.

The weight to be given to conflicting evidence bearing upon testamentary capacity is for the trial court. The party contesting a will because of alleged lack of testamentary capacity has the burden of proving the incapacity by clear and satisfactory evidence. Estate of Knutson, 1957, 275 Wis. 380, 82 N.W.2d 196. It is elementary that the question of competency is to be determined as of the time of the execution of the will. Id. Findings of fact by a trial court are not to be set aside unless they are contrary to the great weight and clear preponderance of the evidence and where there is a dispute in the testimony the trier of the fact is the judge of the weight and credibility to be accorded to the testimony of the witnesses. Estate of Fillar, 1960, 10 Wis.2d 141, 102 N.W.2d 210, and cases therein cited.

We have here for consideration a will which shows on its face that it was obviously drawn by a draftsman conversant with the requirements of the testamentary disposition of an estate and able to express the desires of the testator in clear unambiguous language. That draftsman was the testator himself.

The will was witnessed by persons who were familiar with the legal requirements of valid wills. They were well acquainted with the testator. The witness, Goodsitt, at least, saw the testator almost every day and discussed with him topics of general and professional interest. Both witnesses testified that they considered Jacob Kaiman to have testamentary capacity at the time when he signed his will. Their testimony did not disclose that they had any belief that he was ever incompetent to make a will. Starting with nothing, he had amassed a fortune. He managed his own business affairs, in the practice of law and as a realtor. He was accepted by his religious body to participate officially in that group's services.

The propondent thus presented to the trial court a very persuasive case for the admission of the will to probate. The trial court so allowed it and the appellate court may not reverse unless the objector's evidence is to strong that the trial court's finding that Jacob Kaiman had testamentary capacity at the time the will was signed is a finding contrary to the great weight and clear preponderance of the evidence.

Most of the evidence of objector's witnesses concerned the eccentric behavior and mode of life of the testator. Although he was actually well-off he lived in cramped and squalid quarters surrounded by filth and disorder. He would not buy himself proper, nourishing food. His clothing was old and dilapidated. He would not keep his clothing or his person clean. There is much testimony that he smelled bad. When he wanted feminine companionship he patronized what he identified as 'two bit whores', and he cheated them out of their wages. His aunt and his cousin reproached him for his manner of life and urged him to conform to higher standards. In reply sometimes he said he could afford nothing better. At other times he said he liked it that way. They concluded that he must be crazy to live like that unnecessarily and they so testified.

A witness who had been a tenant in an apartment which Kaiman owned testified that Kaiman harassed him by making inconvenient inspections of the premises at unreasonable hours. The tenant was in default in his rent and the landlord's attitude and behavior was not friendly. The witness concluded that Kaiman was crazy. Another tenant with whom Kaiman had a dispute reached the same conclusion.

By the foregoing testimony and other evidence to like effect, it appears that Jacob Kaiman was an unattractive person but not one who is shown to be incompetent to make a will.

However, there is testimony which bears more closely on the question of testamentary incapacity. Two witnesses testified that Jacob informed them that the Nazis had executed his relatives at Dachau and that Jacob had been the executions. None of this was true. At another time, in 1958, Jacob told the witness, his aunt, that his brother Benno was killed in a car accident. He told others that he had no brother. He told witnesses that he had no family and was alone in the world. From time to time Kaiman saw Benno, his aunt and his cousin, Bernard, and could not be misinformed of their existence or identity. There was testimony that Jacob talked to himself and that he heard imaginary voices.

The testator's cousin, Bernard Kaiman, is a psychologist. He questioned Jacob concerning Jacob's mental processes and reached a conclusion that Jacob had hallucinations, that he heard non-existent voices and that his mind had deteriorated to a point where he lacked testamentary capacity. Another witness, a Dr. Kasak, a psychiatrist (who had never examined Jacob), in response to a hypothetical question, testified that in his opinion to a reasonable medical certainty Jacob Kaiman was insane on the date of the execution of the will and that he was then incompetent to sign a will. On cross-examination the doctor said he believed Kaiman had been insane for at least ten years.

It must be conceded that Jacob Kaiman was not on good terms with his brother, Benno, the appellant, but any contention that Jacob believed on the day when the will was signed that Benno was dead, no matter what he may have told others at other times, or whether he believed what he was telling them, is conclusively refuted by the will itself by the bequest 'to my brother Benno George Kaimann.'

We must agree that the record sustains the learned trial judge in his determination that, under the circumstances, the will is a natural one and on the day in question the proof is...