Komarr's Estate, In re

• Decision Date: 03 April 1970
• Docket Number: No. 96,96
• Citation: 175 N.W.2d 473,46 Wis.2d 230
• Parties: In re ESTATE of Evelyn KOMARR, Decd. George VARGO, Appellant, v. Robert J. BEAUDRY, Respondent.
• Court: Wisconsin Supreme Court

Page 473

175 N.W.2d 473

46 Wis.2d 230

In re ESTATE of Evelyn KOMARR, Decd George VARGO, Appellant, v. Robert J. BEAUDRY, Respondent.

No. 96.

Supreme Court of Wisconsin.

April 3, 1970.

Rehearing Denied June 2, 1970.

This is an appeal from an order admitting the will of Evelyn Komarr to probate.

On July 8, 1968, Evelyn Komarr, a widow, sixty-eight years of age, ¹ died, leaving her only son, George Vargo, as her sole heir. The immediate cause of her death was listed as pulmonary embolism due to cerebral and coronary thrombosis and generalized arteriosclerosis. Prior to her death Mrs. Komarr had been hospitalized on numerous occasions. Pursuant to a hearing before the Milwaukee county court, Mrs. Komarr was declared mentally ill and committed to the Milwaukee County Mental Health Center on May 25, 1964.

The application of her commitment had indicated the following:

'She is very confused. She has a fear that someone will take something out of her house. She is living in extreme filth. Her dog ate the ashes of her deceased husband. She is unable to care for herself. She needs institutional care.'

In a report made to the court by Drs. Robert E. Fitzgerald and Michael Kasak, these conditions were confirmed and senility was listed as the cause of her confusion and disorientation. Following Mrs. Komarr's commitment, her son George was appointed as her guardian.

On July 3, 1964, Mrs. Komarr was transferred to another division of the Mental Health Center, where she remained until January 7, 1965, when she was conditionally released in order to live with her son in Royal Oak, Michigan.

In November, 1965, Mrs. Komarr decided to return to Milwaukee and upon her return resided at the Mount Carmel Nursing Home. On March 17, 1968, she was taken by ambulance to Misericordia Hospital for emergency treatment. The impression of Dr. R. E. Callan who examined her at that time was that she had suffered a 'cerebrovascular accident, probably due to cerebral hemorrhage.'

Mr. Beaudry had known Mrs. Komarr since about 1960. He had represented her as an attorney and had drafted her will dated October 30, 1963. That will had bequeathed her entire estate to her thenliving husband. Mr. Beaudry had initiated the proceedings in which Mrs. Komarr had been declared an incompetent. His law firm had also acted in the termination of the guardianship and the appointment of Mr. Beaudry as conservator for Mrs. Komarr in place of her son George Vargo.

Mrs. Komarr had been a dinner guest in the Beaudry home on Christmas of 1967, and he described her as 'a dear, good friend of mine.' The Beaudrys gave her a bathrobe and slippers as a Christmas present.

On March 18, 1968, the day following her admission to Misericordia Hospital, Attorney Beaudry returned to his home following a trip out of town. As he drove into his driveway at about noon, he was met by his wife who informed him of Mrs. Komarr's hospitalization. He then went to his office but promptly left for the hospital, arriving about 1 p.m. In a matter of five or ten minutes he saw Mrs. Komarr and then proceeded to the Milwaukee county courthouse, arriving at about 2 p.m. He conferred with Judge MICHAEL T. SULLIVAN in reference to making a will in which, despite the existence of a surviving son, he would be the sole beneficiary.

Mr. Beaudry then attempted to contact Attorney Roland J. Steinle, Jr., but being unable to do so, he retained Attorney Joseph Balistrieri and immediately drove both Balistrieri and his sister, Benedetta Balistrieri, to the hospital. After introducing them to Mrs. Komarr, Attorney Beaudry excused himself and waited outside in his car while Attorney Balistrieri proceeded to draft the will which named Beaudry as the sole beneficiary of her estate.

Although hospital records listed Mrs. Komarr's son as the responsible party, together with his home and business addresses and telephone numbers, he was not notified of her hospitalization. Not until after her death, on July 8, 1968, did Mr. Beaudry, her attorney and conservator, contact her son George. At that time he was informed that the funeral was to be held on the morning of Wednesday, July 10.

Subsequent to the death of Mrs. Komarr, Attorney Beaudry filed a petition in the Milwaukee county court for probate of the instrument dated March 18, 1968. Objections to the admission of the instrument for probate were then filed on behalf of her only son and sole heir, George Vargo.

Grounds for such objections were:

'1. That the said instrument was not duly executed by the said Evelyn Komarr, deceased, as her Last Will and Testament, in the manner provided by law.

'2. That at the time of the execution of said instrument the said Evelyn Komarr was not of sound mind and had not sufficient mental capacity to make a will.

'3. That the execution of said instrument was procured by undue influence exercised over and upon the said Evelyn Komarr, deceased, by Robert J. Beaudry.'

After trial, the court rendered its decision and ordered the will admitted to probate. From the order admitting the will to probate, George Vargo appeals.

Additional facts will be stated in the opinion.

Ray T. McCann, Milwaukee, for appellant.

Roland J. Steinle, Jr., Gregory Gramling, Jr., Milwaukee, for respondent.

HANLEY, Justice.

The following issues are raised on this appeal:

(1) Was the purported will executed in conformity with sec. 238.06, Stats.;

(2) Was the purported will procured by undue influence thereby necessitating the denial of its acceptance for probate;

(3) Were the attorney-draftsman and his secretary incompetent, under sec. 885.16, Stats. (Dead Man's Statute), to testify as to the execution of the purported will; and

(4) Were certain of appellant's exhibits improperly excluded from evidence by the trial court?

Execution in Conformity with Sec. 238.06, Stats.

The appellant contends that the execution of the will is not in compliance with sec. 238.06, Stats. Although such contention normally raises an issue of fact, we are here presented with an issue of law.

The testimony discloses that at the time of the execution of the will, the testatrix had suffered a flaccid paralysis of the left arm and left leg. On the previous day she was not able to give the doctor any past medical history or any information in reference to the various systems of her body.

The record shows that on admission to the hospital her speech was slurred and garbled. The bedside notes of the nurse on March 18, 1968, the date that the instrument was allegedly executed, stated as follows:

'P. 84. Speech is garbled times. Skin warm and dry * * * 'L' hand & arm appears completely flac(c)id. L. leg has some uncontrolled movement. * * *'

From the evidence it clearly appears that Mrs. Komarr was physically unable to write her signature or, unaided, even to make her mark. There is no evidence of an express direction that the scrivener make this mark for her.

Sec. 238.06, Stats., states in pertinent part:

'No will made within this state since the first day of January, 1896, except such nuncupative wills as are mentioned in this chapter, shall be effectual to pass any estate, whether real or personal, or to charge or in any way affect the same unless it be in writing and signed by the testator or by some person in his presence and by his express direction, and attested and subscribed in the presence of the testator by two or more competent witnesses in the presence of each other * * *.' (Emphasis supplied.)

This statute was construed in Will of Wilcox (1934), 215 Wis. 341, 254 N.W. 529. There, as in the instant case, the testatrix, being aged and infirm, was aided in the making of her mark. The evidence indicated that the testatrix touched the pen while the scrivener made her mark. Since no express direction to do so had been given by the testatrix, the question before this court was '* * * whether the touching of the pen by testatrix, as the scrivener made the mark, was a sufficient participation in the act to warrant a holding that the mark was that of the testatrix and not the scrivener. * * * 'Will of Wilcox, supra, at page 343, 254 N.W. at page 529.

In resolving this question, the court stated, at page 343, 254 N.W. at page 530:

'* * * It is our conclusion that such an execution satisfies the statute; that such a participation in the making of the mark makes the act that of the testatrix. It furnished objective evidence of assent, and doubtless represented as much participation in the act as testatrix was physically capable of.' (Emphasis supplied.)

There is considerable disagreement as to whether Mrs. Komarr's participation in the making of the mark was sufficient to render it her act, rather than that of the scrivener. As to the testatrix's participation, there is conflict between the testimony of Joseph and Benedetta Balistrieri. While Joseph testified the testatrix had held the pen and he had put his hand on hers, Benedetta testified that Joseph had held the pen and the testatrix had placed her hand on his.

The trial court apparently accepted Joseph's version of the execution and applied the rule laid down in the Will of Wilcox, supra. In so doing, the trial court stated:

'The rule laid down in the Will of Wilcox, 215 Wis. 341 (254 N.W. 529), must be recognized, and the participation of Mrs. Komarr in the making of the mark is here found to be sufficient to make it the act of the testatrix. It was the objective evidence of her assent and, considering her physical condition on that date, it was about as much participation in the act as the testatrix was physically capable of rendering. It is a sufficient satisfaction of the statutory requirement.' (Emphasis supplied.)

We agree with the trial court that, despite the inconsistent testimony of Joseph and Benedetta Balistrieri, there is sufficient evidence to establish compliance with the rule laid down in Will of Wilcox, supra. However, it is our considered opinion that such rule allows too great...