Patterson v. Jensen (In re Faulks' Will)

• Decision Date: 01 May 1945
• Citation: 246 Wis. 319,17 N.W.2d 423
• Parties: In re FAULKS' WILL. PATTERSON v. JENSEN et al.
• Court: Wisconsin Supreme Court

246 Wis. 319

17 N.W.2d 423

In re FAULKS' WILL.PATTERSON

v.JENSEN et al.

Supreme Court of Wisconsin.

Jan. 16, 1945.

Rehearing Denied May 1, 1945.

Appeal from a judgment of the County Court for Waupaca County; Gad Jones, Judge.

Reversed.

FAIRCHILD, FOWLER, and BARLOW, JJ., dissenting.On the 4th day of January, 1943, L. G. Patterson propounded the will of Mary Faulks, deceased, dated Janury 14, 1942. Objections to the probate of the will were filed and Will Jensen propounded the will of Mary Faulks, dated January 14, 1941. Trial was had before the court and on May 31, 1944, judgment was entered denying probate of the will propounded by L. G. Patterson and admitting to probate the will propounded by Will Jensen. From this judgment the proponent Patterson appeals.

In addition to the wills propounded by L. G. Patterson and Will Jensen, Anna Faulks propounded an instrument purporting to be a copy of a last will executed by Mary Faulks in September, 1940, and Eliza Palmer propounded an instrument purporting to be a copy of a last will executed by Mary Faulks in 1936.

The court having admitted to probate the will propounded by Will Jensen, the petitions for probate of the wills propounded by Anna Faulks and Eliza Palmer were inferentially denied and drop out of the proceeding.

The facts will be stated in the opinion.

Edward J. Hart, of Waupaca, and Brazeau & Graves, of Wisconsin Rapids, for appellant.

Fisher, Reinholdt & Peickert, of Stevens Point, Paul Roman, of Manawa, and Browne & Browne, of Waupaca, for respondents.

ROSENBERRY, Chief Justice.

George and Mary Faulks, the testatrix, husband and wife, having no children, lived upon and operated a farm near Waupaca. In July, 1903, the respondent, Will Jensen, was living at an orphans' home about three miles from the Faulks farm. He was then eleven years of age. He first met Mary Faulks on July 30, 1903, and became a member of the Faulks home the next day and remained a member of the family and household until the time of his marriage to Pearl Jensen in 1919. He was not adopted. The family lived continuously upon the farm except for two years, 1913 and 1914, during which time they lived in the city of Waupaca. After the marriage of Will in 1919, he and his wife moved into the farm home and Mr. and Mrs. Faulks moved to Waupaca, where they resided until they died. Will and Pearl Jensen have continued to live upon and operate the farm down to the present time. George Faulks died in 1934. Mary continued to live in the home at Waupaca.

George had a sister, Eliza Palmer, and a brother, Rufus Faulks. The sister Eliza was a cripple and the brother had lost his property, was in poor health and in bad shape financially. It appears from the testimony of Will Jensen that some time prior to the death of George Faulks, which occurred on October 31, 1934, George and Mary Faulks duly executed a joint will. This will was in existence after George's death. It has never been probated. It is now lost and the witness, Will Jensen, was permitted to testify to its contents. In admitting the testimony regarding the contents of the will, the court said:

‘It is also understood that it (evidence in regard to contents of will) is taken not for the purpose of proving the lost will but merely for the purpose of proving, if it does prove, that there was some change of attitude in the mind of this testator if one did take place. That is the only theory on which I could see that it would be material.’

Knowledge of the execution of the will and its contents having come to the court and counsel for the proponents and contestants and the record disclosing no reason for the failure to probate the will, we must in view of the provisions of sec. 310.03, presume that there was some good and sufficient reason for not probating it. Not to do so would impute to parties, counsel and court, a dereliction of duty.

Section 310.03 provides: ‘If any person having the custody of any will after the death of the testator shall, without reasonable cause, neglect to deliver the same to the county court having jurisdiction thereof, after he shall have been duly notified by such court for that purpose, he may be committed to the jail of the county by warrant issued by such court and there by kept in close confinement until he shall deliver the will as required.’

The presumption is especially applicable in this case for the reason that after the death of George, there was a conference at which were present Mary Faulks, Pearl Jensen, Mrs. Augusta Larson, Mr. Hart, attorney for the Faulks, Mrs. John C. Hart and the witness Will Jensen, who was named executor of George's will. The will may have been revoked. 1 Page on Wills 152, sec. 88. See Doyle v. Fischer, 1924, 183 Wis. 599, 198 N.W. 763, 33 A.L.R. 733, and note, 739. At this conference apparently the matter of the probate of the will was under discussion, so that the matter must have been fully disclosed to most of the parties in interest. After the conference George's estate was administered as an intestate estate.

In 1936, Mary Faulks made a will whereby she bequeathed $10,000 to Lorraine Jensen, $5,000 to Will and Pearl jointly, $1,000 to Eliza Palmer and $1,000 to Anna Faulks and smaller amounts to Arnold Larson, John and Augusta Larson, Matilda Jenner and Herbert Jenner. She devised her residence property and another house to Will and Pearl Jensen jointly and by the residuary clause provided that the specific legatees should share equally in the residue.

In September, 1940, Mary executed a will whereby she buqueathed Lorraine Jensen $10,000, Will and Pearl Jensen $5,000, with smaller bequests to Eliza Palmer, Tillie Jenner, Bert Jenner and his wife, setting up a trust for the benefit of Eliza Palmer in the sum of $900, devised her two houses in Waupaca to Will and Pearl Jensen and made bequests to Arnold Larson and Augusta Larson and appointed Will Jensen as the executor.

In January, 1941, Mary Faulks made a will with substantially the same provisions as the 1940 will except that she gave to Doctor Patterson, the proponent, ‘all indebtedness that he may owe me at the time of my death.’ This will was propounded by Will Jensen and is the will admitted to probate.

At the time of Mary Faulks' death in December, 1942, her heir at law was one sister. Her parents had died many years before. One sister died in 1936 and her brother died in September, 1942. The remaining sister, Jane, was single at the time of Mary's death.

In 1934, George was seventy-two years of age. At that time Mary was seventy years of age. Mary died in December, 1942, aged seventy-eight years. Mary's relatives other than her brothers and sisters lived in England and Australia.

Will Jensen not only operated the farm as already stated but down to January, 1942, he was treated by George and Mary as a son and he fulfilled the obligations of a good son to his foster parents. He assisted them in the conduct of their business affairs, looked after them during their illness, had access to their papers, looked after the repair of their residence, did odd chores for them and in case of illness saw that they were properly cared for. His wife cooperated with her husband in the care of Will's foster parents and both were on excellent terms with George and Mary. Pearl Jensen, prior to her marriage, lived on a farm near the Faulks' farm and she had known them practically all her lifetime. Will and Pearl had one child, Lorraine, who was eighteen years of age at the time of Mary's death. Mary was very found of Lorraine, often referred to her as her granddaughter and when Lorraine graduated from high school in 1941, Mary offered to pay for her attendance at the University of Wisconsin for one year. While Lorraine was attending high school in the city of Waupaca, she had her noon meal with Mrs. Faulks and occasionally stayed there over night and was on good terms and was very much beloved by both George and Mary Faulks.

Doctor Patterson, the proponent of the will executed in January, 1942, came to Waupaca from Ohio in July, 1932, to begin the practice of medicine, at which time he was twenty-eight years of age. He first met Mary Faulks in 1937, attended her as a physician once in July, 1937, and in 1940 became her regular physician. In 1936, he purchased a house on Berlin Street in Waupaca, for $4,000. In 1940, he bought a house on the corner of Lake and Berlin Streets, at which time he still owed $2,600 on the mortgage on the Berlin Street house. At the time he bought the house at the corner of Lake and Berlin Streets, Mary advanced him the sum of $8,600, $2,600 being used to pay the mortgage on the Berlin Street house and $6,000 to pay for the house at the corner of Lake and Berlin Streets. To evidence this $8,600 transaction, he gave Mrs. Faulks his note for $4,000 and a mortgage upon the corner house to secure the note which left the Berlin Street house clear of incumbrance. Mrs. Faulks received no written evidence respecting the $4600 not covered by the $4,000 note.

Toward fall in 1940, Mary requested Will to go to the bank and get a draft for $2,500 for Doctor Patterson, which she said was going to pay for the Berlin Street house. She told Will and Pearl that the doctor had said he guessed he would have to let it go because he could not make the payment on it and that he paid too much for it and that he did not know anything about real estate and she felt sorry for the doctor. She said the doctor had also told her that many people did not pay their bills and she gave it as her own opinion that doctors did not get half enough pay for what they did anyway. Doctor Patterson took Mary from her home to the office of the register of deeds in the fall of 1942 and she then satisfied the $4,000 mortgage of record. There is no evidence of any payment to Mary as consideration for this transaction.

Doctor Patterson built a hangar in the early part of May, 1940, at a cost of $1160, in which to store his...