Landauer's Estate, In re

• Decision Date: 08 April 1952
• Citation: 52 N.W.2d 890,261 Wis. 314
• Parties: In re LANDAUER'S ESTATE. HOLTY, v. LANDAUER et al.
• Court: Wisconsin Supreme Court

Page 890

52 N.W.2d 890

261 Wis. 314

In re LANDAUER'S ESTATE HOLTY, v. LANDAUER et al.

Supreme Court of Wisconsin.

April 8, 1952.

Rehearing Denied June 3, 1952.

Whyte, Hirschboeck & Minahan, Milwaukee (Victor M. Harding, Milwaukee, of counsel), for appellant.

Chester J. Niebler, Milwaukee, for respondents.

FRITZ, Chief Justice.

Joseph A. Landauer died on February 15, 1951, a resident of Milwaukee, Wisconsin. His sole and only heir at law is his widow, Frances O. Landauer. His will dated September 29, 1949, and a codicil dated September 11, 1950, were offered and admitted to probate as testator's last will and testament by an order granted by County Judge Sheridan on March 1, 1951. On March 15, 1951, Carl R. Holty, a nephew and legatee under said will--but not an heir at law of the testator--filed an unverified, unsigned petition objecting to the probate of said will and codicil on the ground that they were procured through the undue influence of the testator's widow, France O. Landauer. Upon that petition, County Judge Stauff, who presided in another branch of the Milwaukee county court, entered an order requiring testator's widow to show cause in the branch president over by Judge Sheridan why the order which admitted said will and codicil to probate should not be revoked and rescinded, and the probate thereof terminated; and said order to show cause enjoined the executors to whom Letters Testamentary had been issued from further proceeding with such probate. The executors and testator's widow objected to proceedings under said order to show cause, and moved for dismissal thereof on the ground that, although Holty is a nephew of said deceased and is named as a legatee in the instruments admitted to probate, he is not an heir at law of the testator. Holty's objections to the probate of the will and codicil were brought on for a hearing and the taking of testimony by Judge Sheridan on April 13, 1951, which was concluded on May 11, 1951. Thereupon, in addition to the facts found by Judge Sheridan in admitting said testamentary instruments to probate on March 1, 1951, the court found that for twenty-five years next preceding the death of the testator, Harry V. Meissner had been his attorney and during such retainage had drafted several wills for the testator, including the will and codicil admitted to probate on March 1, 1951; that Meissner had been consulted from time to time by the testator on his will matters and had in his possession several previous wills drafted by him for the testator, including the will and codicil admitted to probate on March 1, 1951; that in every instance where the testator had Meissner draft a later will the testator tore the signature from the prior will and such mutilated instruments were all still in Meissner's possession; and that Holty had Meissner subpoenaed for a hearing on May 11, 1951, and demanded that he produce whatever prior testamentary instruments executed by the testator he had in his files. After Meissner was sworn as a witness in open court he refused to divulge the contents of said prior testamentary instruments and the testator's communications to him; and he claimed the privilege of sec. 325.22, Stats. Meissner's claim as to that privilege was upheld by the court. The court found and adjudged that the testator left as his sole and only heir at law his widow, Frances O. Landauer; that the testator had properly executed said will and codicil dated September 29, 1949 and September 11, 1950, respectively; and that said instruments had been duly admitted to probate as the testator's last will and testament. Upon the court's ruling in respect to said claim of privilege under sec. 325.22, Stats., and the findings of fact as stated above, the court concluded that the order of March 1, 1951, admitting said will and codicil to probate as the last will and testament of Joseph A. Landauer and the issuance of Letters Testmentary thereon should be affirmed. In connection therewith the court found and adjudged that no undue influence was used by the widow, Frances O. Landauer, in the procurement of said testamentary instruments; that Holty's petition for vacating and setting aside the probate thereof be dismissed upon the merits; and that the estate of Joseph A. Landauer have judgment for costs against Holty.

On this appeal Holty's attorneys state in this brief that 'at the opening hearing on Holty's motion' (to reopen the proof of the will) 'it was conceded that unless he could present an earlier will under which he was a beneficiary he had no standing to contest the 1949 will.' The hearing was continued for one month to give Holty an opportunity to present proof of the earlier will of the decedent which would give Holty the right to contest the subsequent instrument. When his motion again came on for hearing a month later, he subpoenaed Meissner who admitted that he had drawn six wills for the decedent within the last ten years, including the will which had been admitted to probate, and that he was in possession of the earlier wills on which he also acted as an attesting witness; but he refused to produce them on the ground of privilege under the provisions in sec. 325.22, Stats., that 'An attorney or counselor at law shall not be allowed to disclose a communication made by his client to him, or his advice given thereon in the course of his professional employment. * * *' The court sustained Meissner's refusal to produce the prior wills and ruled that he shall not be allowed to disclose the contents of the prior wills which he had drawn for the testator as his attorney. However in respect to said testamentary instruments admitted to probate on March 1, 1951, the privilege under sec. 325.22, Stats., must be deemed to have been waived by the testator because these instruments were signed by Meissner as an attesting witness. In McMaster v. Scriven, 85 Wis. 162, 55 N.W. 149, 150, the testimony of attorney Wickham, who drafted and signed the testatrix' will as an attesting witness was objected to on the ground that he was not a competent witness to testify as to what took place between him and his client, but the trial court overruled the objection. On the appeal this court stated:

'The objection made to the reception in evidence of the instructions given by the testatrix to Mr. Wickham, the attorney who prepared her will, and what took place between them on the subject of the will, is founded on the statute (section 4076, R.S.) (now sec. 325.22, Stats.), which provides that 'an attorney or counsellor shall not be allowed to disclose a communication made by his client to him, or his advice given thereon, in the course of his professional employment.' The testatrix requested Mr. Wickham to sign the will which was the result of the communications between them as a subscribing witness, and he signed it accordingly. This must be held to be a waiver of objection to his competency, so as to leave the witness free to perform the duties of the position, and to testify to any matter in relation to the will and its execution of which he acquired knowledge by virtue of his professional relation, including the mental condition of the testatrix at the time. In re Will of Coleman, 111 N.Y. 220, 19 N.E. 71; Alberti v. [New York] L. E. & W. R. Co. 118 N.Y. 85, 23 N.E. 35 .'

In relation to the matters and citations thus stated in the McMaster Case the court stated In re Will of Hunt, 122 Wis. 460, 468, 100 N.W. 874, 877:

'In such cases the thing done must be futile unless the acts and declarations constituting the execution and publication of the will be disclosed in testimony by the attorney; hence by clear implication the testator declares his wish that they be disclosed to the extent necessary. Other instances of implied waiver by the client are collected in Koeber v. Somers, 108 Wis. 497, 503, 84 N.W. 991, 52 L.R.A. 512, and Herman v. Schlesinger, 114 Wis. 382, 393, 90 N.W. 460.' In re Downing's Will, 118 Wis. 581, 95 N.W. 876; In re Young's Estate, 33 Utah 382, 94 P. 731, 735, 17 L.R.A.,N.S., 108; Annotation in 2 A.L.R.2d 645, 659, sec. 13.

Consequently as Meissner, as the result of the communications between the testator and himself, signed said last will and codicil as an attesting witness, that must be held to be a waiver by the testator of any objection of Meissner's competency so as to leave him free to perform the duties of such position and testify to any matter in relation to the testator's will and codicil and the execution thereof as to which Meissner acquired knowledge by virtue of his professional relation.

Holty also objected to the probate of the will and codicil in question, on the grounds that the execution thereof was procured by undue influence over the testator by his wife; that said instruments are not his last will and testament; and that Holty had no opportunity to present any evidence on that issue. His attorneys contend they protested to the court that there had been no opportunity to introduce any evidence of undue influence on the trial. In that respect the court stated: 'There were no witnesses sworn other than Mr. Meissner and no attempt to show undue influence other than the testimony of Mr. Meissner and the widow.' In the findings of fact the court stated: 'There is not one scintilla of evidence that would indicate any undue influence practiced by the widow upon the deceased * * *'; and the court concluded: 'That no undue influence was used by the widow, Frances O. Landauer in the procurement of such instruments, admitted as the Last Will and Testament of Joseph A. Landauer, deceased * * *.'

Judgment reversed and cause remanded for a new trial.

CURRIE, Justice (concurring).

This concurring opinion has been prompted by the dissenting opinion filed herein.

The dissenting opinion states that 'we are not dealing here with a will contest'. The will of September 29, 1949, and the codicil of September 11, 1950, were admitted to probate ex parte...