Moore v. Frederiksen's Will

• Decision Date: 19 December 1944
• Citation: 246 Wis. 263,16 N.W.2d 819
• Parties: MOORE et al. v. HALBERSTADT. In re FREDERIKSEN'S WILL.
• Court: Wisconsin Supreme Court

246 Wis. 263

16 N.W.2d 819

MOORE et al.

v. HALBERSTADT.In re FREDERIKSEN'S WILL.

Supreme Court of Wisconsin.

Dec. 19, 1944.

Appeal from a judgment of the County Court of Kenosha County; Robert V. Baker, judge.

Affirmed.

On December 2, 1942, a petition for the probate of an instrument as the last will of Vilhelm Frederiksen, who died November 29, 1942, was filed by Helga P. Halberstadt. In this instrument, which purports to be executed and attested on April 7, 1938, she is designated as the executrix and sold beneficiary. In January 1943 objections to the probate of that instrument (which is hereinafter referred to as the Halberstadt will) were filed by Adeline Moore on the ground that it was not Frederiksen's last will because of an instrument executed by Frederiksen as his will after April 7, 1938, which she had in her possession and offered for probate. In this instrument (hereinafter called the Moore will) she was designated as the executrix and principal beneficiary. Objections to the probate thereof were filed by Helga P. Halberstadt on several grounds, including that the instrument has erasures and alterations, obliterating the date of the execution thereof, and has been multilated, destroyed and revoked by the tearing and wrinkling and the evident discarding thereof. After a trial of issues raised in relation to each of the instruments, the court filed decisions and findings of fact upon which it concluded-‘That the instrument propounded as the Moore will drafted April 29, 1937, which has been mutilated, altered and torn, should be denied probate, and the objections to its allowance are sustained;’ and that Adeline Moore's objections to the probate of the Halberstadt will, dated April 7, 1938, should be and are denied and this will should be admitted to probate.

Judgment was entered accordingly and Adeline Moore appealed. Haley & De Mark, of Racine, and Lawrence S. Ruetz, of Kenosha, for appellant.

Val. W. Dittmann, of Kenosha, for respondent.

FRITZ, Justice.

On the trial the following facts were well established by the evidence and found by the court: The Halberstadt will was properly and regularly executed, witnessed and attested on April 7, 1938; and found after the testator Frederiksen's death in a sealed envelope among his personal effects in his trunk in his room at the Kirar Hotel in Kenosha. The Moore will, which is on the face of one sheet, was prepared and dictated in April 1937 by Edward J. Ruetz, a competent and reputable attorney, pursuant to directions given to him by Frederiksen, who then-or on the day following, when the typed, but still unexecuted instrument was called for at Ruetz' office-was accompanied by Adeline Moore, the appellant. When this instrument was produced on the trial it was in a torn, mutilated and wrinkled condition, with the torn parts fastened together by transparent adhesive tape. She testified it was in that condition, excepting for the tape, when Frederiksen left it in her possession in 1941, with the signatures thereon of Frederiksen, as the testator, and Robert E. and Ruth Anderson as attesting witnesses. In the instrument, when it was produced by appellant, there was entirely obliterated the fourth numeral necessary to specify the year of the execution thereof in the sentence, ‘In witness whereof, I have hereunto set my hand and seal this 29th day of April 193_’; and because of the absence of that numeral, there cannot be determined from the face of the instrument itself whether it was executed by Frederiksen before or after he executed the Halberstadt will on April 7, 1938. The Moore will, as prepared by Ruetz, was dated April 29, 1937. The line of the tear commences at the bottom of the sheet and extends nearly perpendicular through the attestation clause toward the year date, and then continues at an angle of about 45 degrees through the space for the fourth numeral necessary to specify the particular year of execution, and on-ward to the right side edge of the instrument. In the course of the tear through the attestation clause it transects one letter in each of the four lines of that clause, but these letters are still plainly visible. However, the last numeral, which was in the year date, cannot be determined from the casual inspection of the will. As the line of tearing may be followed through the body of the will and wherever it is torn the letters transected by the tearing are plainly visible, it must appear that the person who did the tearing had in mind the destruction of the last numeral of the year date, and for that purpose tore the will. On the back of the instrument there are six ink spots arranged in nearly a square. The line of tearing and one ink spot is directly back of the destroyed numeral and shows through the front of the page at the point of the destroyed numeral. It may rightly be inferred that the ink spot was placed after the tearing of the page. After the will was typewritten, someone typed over the figures ‘1-9-3’ of the year date with a typewriter different from the one originally used. The will appears to be torn and mutilated in an attempt to destroy the last numeral of the year date after the will was signed by testator; it was designed by someone that the evidence that it was written in 1937 be wholly destroyed; it is possible, but not probable, that testator caused the year date to be typed over before signing, but it is highly improbable that he would destroy the last numeral in the year date; the inference is strong that the numeral was destroyed by someone in an effort to show the will was not dated April 29, 1937. The appearance of the tearing and alteration indicates a design to destroy the last numeral and does not indicate an intent to revoke the will; the Moore will was dated April 29, 1937, and the attestation clause so recites. It is fairly inferable that the will was dated at an earlier time than in 1939; no one can tell whether such date was 39 or 37 or 36.

In view of the facts thus found as to the obliteration of the fourth numeral, which was needed in order to specify the particular year of the execution of the Moore will, there was a very material alteration; and in the absence of proof sufficient to satisfy the trial court that the date of the execution of that will was subsequent to April 7, 1938 (date of the Halberstadt will), and that the obliteration of that numeral was not an unauthorized alteration, the court could not conclude that a revocation of the Halberstadt will was effected by the Moore will. Such an obliteration of a date which...