Ogrentz v. Willison (In re Garrecht's Will)

• Decision Date: 08 May 1928
• Citation: 195 Wis. 596,219 N.W. 378
• Parties: IN RE GARRECHT'S WILL. OGRENTZ v. WILLISON ET AL.
• Court: Wisconsin Supreme Court

195 Wis. 596

219 N.W. 378

IN RE GARRECHT'S WILL.

OGRENTZ

v.WILLISON ET AL.

Supreme Court of Wisconsin.

May 8, 1928.

Appeal from an order of the County Court of Milwaukee County; John C. Karel, County Judge. Affirmed.

Petition for proof of will of Rose Willison Garrecht was filed by a son in the county court April 6, 1926. Objections were filed April 26th by appellant, Bessie Ogrentz, the oldest child. A hearing was had in March and June of said year, and by order of August 13, 1927, the document was established as a valid will and admitted to probate. From such probate this appeal is taken.

The deceased, some 52 years old at the time of her death, was the mother of six children by her first husband, William Willison, who was divorced from her in November, 1920, after a prior suit for divorce by her against him started a few years before had been dismissed. November 9, 1921, she and Michael Garrecht married and continued to live in the boarding house she had successfully conducted for many years. There were no children by this marriage. Garrecht had no property.

February 24, 1922, at the sole direction of the deceased, the form of a will for the deceased and another for Michael Garrecht were drawn by one Frank Ammon, a lawyer who had done business for the deceased before that but who died prior to Mrs. Garrecht. Both wills were filed in the county court on March 3d by Mr. Ammon.

Following the signature of Mrs. Garrecht on the instrument propounded as her last will was the following attestation clause:

“Signed, sealed, published and declared by the said Rose Willison Garrecht, as and for her last will and testament, in the presence of us, who, at her request, in her presence and in the presence of each other, have hereunto subscribed our names as attesting witnesses.

Augusta Seidler, Milwaukee, Wisconsin.

Anton Larson, Milwaukee, Wisconsin.”Gugel & Greenthal, of Milwaukee, and T. M. Thomas, of Ladysmith, for appellant.

Wm. A. Schroeder, Jacob S. Rothstein, and Rowan, Kalaher & Stoecker, all of Milwaukee, for respondents.

ESCHWEILER, J.

The main objections urged to the proceedings below are: That there was no due execution of the instrument; that the alleged execution of the same was produced by undue influence exercised upon the maker; that she was at the time of unsound mind; that she had an undue and unnatural obsession towards and hatred of the contestant, her oldest child.

Upon the hearing the death of said witness Anton Larson was shown. The other witness, Mrs. Seidler, who had known the deceased for many years and had been employed by her, testified: That she was called to the sitting room in the boarding house, where there were present Mr. Ammon and Mr. and Mrs. Garrecht. That the signature of the deceased was then on the will. That Mrs. Garrecht said that the document was her will, that she had signed it, and that she wanted Mrs. Seidler to witness it, and handed her the pen. At the same time some one had called Anton Larson from another part of the house, and that he was inside the sitting room door where he could hear and see what was being done and was so placed at the time Mrs. Seidler signed. That immediately thereafter a similar statement and request were made by Mrs. Garrecht to and of Mr. Larson, who thereupon took the pen from Mrs. Seidler and signed his name.

Michael Garrecht, the widower, was also called as a witness, and over proper objections to his competency as a witness was permitted to testify as to facts surrounding the execution of the will, but he said that the signing by Mrs. Garrecht was done in the presence of both of the witnesses, and, further, that the will which had been drawn for him to execute and received here in evidence and which gave all his property to Mrs. Garrecht was signed by him at the same time and by the same two witnesses. Mrs. Seidler, however, was positive in her testimony that she signed only Mrs. Garrecht's will, although her signature and that of Larson appear on the other.

Had the trial court sustained appellant's objection to Michael Garrecht, testatrix's husband, testifying as to the execution of the will, he being a substantial beneficiary thereunder, nevertheless due and proper execution of the will was proven by the testimony of the surviving subscribing witness, Mrs. Seidler. While it is true that her testimony contradicts the recital in the above-quoted attestation clause to the effect that the will was signed by Mrs. Garrecht in the presence of the witnesses, yet such a recital is of an unessential, though very proper, step to have taken. It is sufficient under section 238.06, Stats. 1927, if the maker of the will acknowledges in some form that it is his will and requests the witnesses to subscribe thereto as such witnesses. Each subscribing witness under our statute must sign in the presence of the testator and the presence of each other. This latter provision was inserted in the statute after the decision of Smith's Will, 52 Wis. 543, 547, 8 N. W. 616, 9 N. W. 665, 38 Am. Rep. 756.

[1] Our statute does not expressly require that the testator shall sign in the presence of the witnesses, and the general rules of law governing such matter do not so require. Skinner v. Am. Bible Soc., 92 Wis. 209, 212, 65 N. W. 1037;Flood v. Kerwin, 113 Wis. 673, 89 N. W. 845;Nunn v. Ehlert, 218 Mass. 471, 475, 106 N. E. 163, L. R. A. 1915B, 87; Cassoday, § 114; 1 Alexander on...