Larsen's Estate, In re

• Decision Date: 05 May 1959
• Citation: 96 N.W.2d 489,7 Wis.2d 263
• Parties: In re ESTATE OF Minnie LARSEN, Deceased. Marilyn R. ROTHE, Adm'x, Appellant, v. Isabel OLINGER, Respondent.
• Court: Wisconsin Supreme Court

Page 489

96 N.W.2d 489

7 Wis.2d 263

In re ESTATE OF Minnie LARSEN, Deceased.

Marilyn R. ROTHE, Adm'x, Appellant, v. Isabel OLINGER, Respondent.

Supreme Court of Wisconsin.

May 5, 1959.

A. W. Ponath, Appleton, for appellant.

Bernard F. Mathiowetz, Milwaukee, for respondent.

CURRIE, Justice.

The sole issue on this appeal is whether the determination of the trial court, to the effect that the transfer of the 223 shares of stock had not been secured through undue influence, is against the great weight and clear preponderance of the evidence.

For many years Martin Larsen had been engaged in operating a shoe repair shop. The living quarters of himself and his wife, Minnie, were located in the same building as such shop, which building was not owned by him but was leased from the owner. After Martin Larsen died the widow gave up the shoe repair business but the landlord continued to charge the same $45 per month rental as before. Minnie thought some reduction should have been made by the landlord and refused to pay the rent. As a result the landlord caused her eviction in July, 1953. Thereafter, she resided in the home of her stepdaughter Isabel Olinger and the latter's husband until her death on February 11, 1958.

Until the latter part of 1956 Minnie paid the Olingers $10 per week for room and board upon the insistence of Mr. Olinger. On December 10, 1956, Minnie at the request of Mr. Olinger signed a written authorization whereby Isabel Olinger was authorized to withdraw from Minnie's bank savings account the sum of $100 per month for board, room and care. By reason of such authorization Isabel Olinger did withdraw such $100 per month for such purpose. Thus the Olingers were paid for the room and board furnished to Minnie during the period from July, 1953, through February, 1958.

The testimony of the disinterested witnesses is all to the effect that she exhibited signs of senility during the last few years of her life. She seemed bewildered and confused. On at least two occasions she expressed the wish that she could talk with her deceased husband by telephone. Among such disinterested witnesses were two employees of the East Side Branch of the First Wisconsin National Bank where she did business, and one Calhoun, an officer of the Standard Savings & Loan Association who, together with his father, had handled business matters for Minnie for many years.

On December 2, 1956, Minnie fell and fractured her left arm and was hospitalized in St. Michael's Hospital in Milwaukee from December 2, 1956, until December 15, 1956. The hospital records disclose that at that time she was 'confused and disoriented.'

Next door to the Standard Savings & Loan Association office was a restaurant which Minnie sometimes frequented. Two of the employees of such restaurant also testified. Minnie on such visits to the restaurant was extremely poorly dressed and would sit at a table and weep. She would order only inexpensive items to eat and would complain about being poor. She would also beg food off from the plates of other patrons. She was also observed to put sugar in a glass of water and then dip a paper napkin in the solution and eat the dipped pieces of napkin.

Isabel Olinger testified that Minnie, while living at the Olingers, went out in the day-time and worked elsewhere as a domestic. However, Mrs. Olinger was unable to furnish the name of a single person who had so employed Minnie.

The testimony as to the circumstances of the transfer of the 223 shares of Wisconsin Electric Power Co. preferred stock was given by Barbara Olinger who was the wife of James Olinger, an adult son of Isabel Olinger. He testimony is as follows: Barbara and her husband lived in another part of the city from Isabel Olinger. Barbara came to the Isabel Olinger home after supper on Saturday evening, January 29, 1955. Minnie told Barbara that she wanted to give something to 'Jim's mother' for all she had done for Minnie. Minnie then went upstairs to her bedroom and brought down six stock certificates covering the 223 shares of stock and asked Barbara to complete the assignment forms on the back. Isabel had a typewriter and Barbara used the same to type Isabel's name and address as assignee in the assignment forms on the back of the certificates. Then Minnie signed the assignments and Barbara witnessed and signature on each. Minnie then handed the certificates to Isabel. Isabel testified that in so doing Minnie said, 'You can have this but not the checks,' which was interpreted by Isabel as a reservation by Minnie of the dividend checks during her lifetime.

Isabel admitted that her husband had previously talked to Minnie and had asked her to make the assignment. Isabel's husband also talked to Minnie and asked her to make a will to reward them for providing her with room and board. Mr. Olinger even went so far as to discuss the matter with an attorney. This attorney refused to draft the will unless Minnie would come to his office and give him the necessary directions for doing so. This Minnie apparently refused to do.

A few days before Minnie died she contracted influenza and was taken to a hospital. After she was taken to the hospital she suffered a stroke which caused her death. The period of hospitalization preceding death was less than a week. There is no testimony that Isabel Olinger and her husband ever provided Minnie with care during illness as apparently Minnie had been up and about until such attack of influenza.

Isabel Olinger notified none of Minnie's relatives prior to the funeral. By means of a power of attorney executed by Minnie, Isabel withdrew sufficient money from Minnie's savings account to pay the expenses (of last illness and the funeral. Mary Nowak, Minnie's sister who resided in Florida, had visited Minnie each summer since Martin Larsen had died. After the funeral Isabel wrote a letter of Mary Nowak and told her of Minnie's death. In such letter Isabel stated that Minnie for years had filed no income tax returns. She also stated that Minnie had left a small estate and that not much would be left after the government got its share and funeral expenses and doctor bills were paid. In such letter Isabel falsely stated that no provision had been made for paying Isabel for the four years that she had provided Minnie with a home. This letter apparently was written for the purpose of inducing Mary and the other relatives to release their share of the estate to Isabel. Isabel and her husband also tried to induce the other heirs to consent to Isabel being appointed administratrix but they refused to so consent.

Having stated the factual background we will now examine the applicable principles of law. Many Wisconsin cases have held that, in order to establish a case for voiding a will because of undue influence, four elements must be proved. 16 Callaghan's Wis.Dig., Undue Influence, p. 804, sec. 1. In the case of In re Will of Ehlke, 1943, 244 Wis. 115, 121, 11 N.W.2d 497, 499, these four elements are stated to be:

'To make out a case of undue influence there must be shown (a) opportunity to exercise influence; (b) disposition to exercise influence; (c) susceptibility of the subject to influence by the person having the opportunity; and (d) a result indicating the exercise of undue influence by such person.'

In general these same four elements are requisite in order to avoid on the ground of undue influence an inter vivos gift by deed or written assignment. In cases where a donor of modest means gives away a substantial part of his estate, the fourth element of successful result is established by the very fact that the donor executed the written transfer of gift.

This court has frequently commented upon the fact that in most cases proof of undue influence may, and usually does, rest solely upon circumstantial evidence. In re Will of Ehlke, supra, 244 Wis. at page 121, 11 N.W.2d at page 499, and In re Will of Leisch, 1936, 221 Wis. 641, 648, 267 N.W. 268. This is because the exercise of the undue influence is usually accomplished in secret. Concomitant with the rule, that circumstantial evidence is sufficient to prove undue influence, is the further rule that, where three of the elements required to show undue influence are clearly established, only slight additional evidence as to the fourth element is necessary to compel the inference of its existence. In re Will of Lee, 1946, 249 Wis. 59, 64, 23 N.W.2d 405; In re Will of Stanley, 1937, 226 Wis. 354, 357, 276 N.W. 353; In re Will of Walker, 1927, 193 Wis. 264, 271, 213 N.W. 626; and Elliott v. Fisk, 1916, 162 Wis. 249, 253, 155 N.W. 110.

It is conceded that Isabel Olinger and her husband had ample opportunity to exercise undue influence upon Minnie Larsen inasmuch as they...