Mills v. Neubert (In re Mills)

• Decision Date: 13 May 1947
• Citation: 250 Wis. 401,27 N.W.2d 375
• Parties: In re MILLS. MILLS v. NEUBERT et al.
• Court: Wisconsin Supreme Court

250 Wis. 401

27 N.W.2d 375

In re MILLS.MILLS

v.NEUBERT et al.

Supreme Court of Wisconsin.

May 13, 1947.

Appeal from an order of the County Court of Outagamie County; Gerald Jolin, Judge.

Proceeding by Doris Neubert and Norman J. Mills for the appointment of a general guardian for Annie Mills, alleged incompetent. From an order appointing the Appleton State Bank as guardian, the alleged incompetent appeals.-[By Editorial Staff.]

Reversed and cause remanded with directions.

Doris Neubert and Norman J. Mills, petitioners and respondents, petitioned the county court of Outagamie county for the appointment of a guardian for Annie Mills, appellant, alleged to be incompetent. The petition was filed on June 15, 1946, and the order entered September 6, 1946, appointing the Appleton State Bank as guardian for the person and estate of Annie Mills. The facts will be stated in the opinion. Stanley A. Staidl, of Appleton (Benton, Bosser, Becker & Parnell and David L. Fulton, all of Appleton, of counsel), for appellant.

Fred V. Heinemann, of Appleton (L. Hugo Keller, of Appleton, of counsel), for respondents.

BARLOW, Justice.

The trial court found that Annie Mills was in such condition physically and mentally that she was unable to manager her affairs and by reason of her condition was subject to undue influence. On appeal the question is whether the evidence sustains the findings of the trial court.

Annie Mills, appellant, was eighty years of age at the time of the hearing, and was at the home of a daughter, Theda Lathrop. She has four living children: Doris Neubert and Norman J. Mills, respondents, and two other daughters, Bernice Much and Theda Lathrop. Her husband, Henry L. Mills, died April 23, 1926. His estate, consisting mainly of the home farm, was assigned to Fred N. Torrey as trustee charged with the payment of the income to Annie Mills during her lifetime, with the remainder to his children. The trustee duly qualified and has continued to act.

Doris Neubert and her husband have rented the home farm on shares ever since the death of the father. After the death of her husband appellant visited with her children, but usually maintained her residence on the home farm where certain rooms, by agreement, were set aside for her sole use. For three years prior to March, 1946, appellant lived exclusively with her daughter on the farm. On March 14, 1946, the daughter Theda Lathrop called at the farm and appellant at that time was suffering with a severe cold. She went to the Lathrop home with her daughter, where she was under the care of a doctor for some time. At the time of the hearing she was still weak and was unable to walk without assistance.

Pursuant to an agreement between the trustee and appellant the trustee would pay appellant the sum of $40 per month and retain any additional income and invest it for appellant. In this manner the trustee accumulated $5,000, investing $3,000 thereof in government bonds and depositing $2,000 in a savings account. The trustee would issue a check to appellant each month for the sum of $40 and it would be endorsed by her. Her daughter Mrs. Neubert would cash it and turn the money over to her mother, from which her mother would pay her the sum of $15 for board. After paying other obligations, in addition to the amount which trustee had invested appellant saved and had in her possession cash which amounted to somewhere between $200 and $500.

While appellant was sick at the home of Mrs. Lathrop some discussion was had between the children about handling the affairs of the mother and the possible appointment of a guardian. Later an attorney, who was known to appellant, was called to the home at her request and he prepared a will. Some of the children were present when the will was prepared. More than a week later the same attorney was again called, at her request, and prepared a power of attorney authorizing the daughter Mrs. Lathrop to handle business matters for her. The power of attorney was recorded in the office of the register of deeds, and all of the children were informed of its execution. After the power of attorney was executed a petition for the appointment of a guardian was filed by two of the children.

The testimony of Mrs. Neubert, the daughter who lived on the home farm and with whom appellant had lived a large portion of the time, in response to the question as to why she made the petition, is as follows, with reference to her mother:

‘She wasn't in the best of health and on account of her old age, she never did any business of any kind handling any amount of money. Never invested money or large things or anything like-or anything of that kind.’

The son, Norman J. Mills, testified he beheved that by reason of his m...