Perssion's Estate, In re

• Decision Date: 01 October 1963
• Citation: 20 Wis.2d 537,123 N.W.2d 465
• Parties: , 13 A.L.R.3d 373 In the Matter of the ESTATE of Leon PERSSION, Deceased. William R. CURKEET, Jr., Guardian ad litem for Carol Perssion Catherwood, Appellant, v. Denald S. EISENBERG, Proponent, Respondent.
• Court: Wisconsin Supreme Court

Page 465

123 N.W.2d 465

20 Wis.2d 537, 13 A.L.R.3d 373

In the Matter of the ESTATE of Leon PERSSION, Deceased.

William R. CURKEET, Jr., Guardian ad litem for Carol

Perssion Catherwood, Appellant, v. Denald S. EISENBERG, Proponent, Respondent.

Supreme Court of Wisconsin.

Oct. 1, 1963.

Leon Perssion died suddenly on April 9, 1962, leaving him surviving his wife Mary Perssion and a minor daughter Carol Perssion Catherwood. Perssion had executed a will on December 26, 1961, in which he expressly excluded them without explanation, and left his entire estate to his sister Beatrice P. Eisenberg, the mother of Donald S. Eisenberg, the attorney who had drafted and supervised the execution of the will. Objections to the admission to probate on the grounds of undue influence by the beneficiary and her son were made on behalf of Mrs. Catherwood; the widow filed no objections. After a trial the court found the will was not the result of undue influence and admitted it to probate. The value of the assets of the estate was estimated to be between $400,000 and $500,000 and the claims in excess of $300,000. From the order admitting the will to probate, Mrs. Catherwood appeals.

William R. Curkeet, Jr., Madison, for appellant.

Walstead, Anderson, Bylsma & Eisenberg, Madison, for respondent.

HALLOWS, Justice.

The appellant makes several contentions but they are all related to the question of undue influence. It should be needless to state the rule, but we will, that the trial court's findings on questions of fact will not be upset on appeal unless they are so wrong as to be against the great weight and clear preponderance of the evidence; likewise, the rule that undue influence whether in a contest involving a will or inter vivos conveyances must be proven by clear, satisfactory and convincing evidence. See a discussion of the cases in Kuehn v. Kuehn (1960), 11 Wis.2d 15, 104 N.W.2d 138. Also of ancient origin are the four elements necessary to be proven to sustain the charge of undue influence. ¹ 'Stated in capsule form these are: Susceptibility, opportunity to influence, disposition to influence, and coveted result, stated more completely: 1. A person who is susceptible of being unduly influenced by the person charged with exercising undue influence; 2. the opportunity of the person charged to exercise such influence on the susceptible person to procure the improper favor; 3. a disposition on the part of the party charged, to influence unduly such susceptible person for the purpose of procuring an improper favor either for himself or another; 4. a result caused by or the effect of such undue influence.' Will of Freitag (1960), 9 Wis.2d 315, p. 317, 101 N.W.2d 108, p. 109.

Perssion was a talented musician but was primarily engaged in the business of owning and operating real estate in the city of Madison. For some time before his death he was diabetic and suffered from headaches; and on the day before he executed his will he was ill. Perssion engaged in many real estate projects, either personally or through a corporation. It was characteristic of him to overextend his finances and to be in need of money but he was always able to borrow from his friends and relatives to meet most of his current obligations. At the time of his death we was indebted to Philip J. Eisenberg, the husband of the sole beneficiary, in the sum of $40,000 on a cognovit note which became due October 14, 1961. This money was borrowed to enable Perssion to complete a building which was then under construction and inadequately financed. While the note was executed by P and C Incorporated, of which at that time Perssion was at least the majority stockholder, the note was endorsed personally by Perssion. The note was uncollateralized by the corporation, but Philip J. Eisenberg received 40 percent of the stock of the corporation for loaning the money and the note provided upon default the lender could acquire the stock which Perssion personally had pledged for the loan. Perssion and Donald S. Eisenberg were officers of the corporation. Perssion borrowed from his brother and from his sister Beatrice P. Eisenberg. The members of the Perssion family were extremely close and many favors were done where no compensation was either expected or paid.

The relationship between Perssion and his wife was estranged and distant, and on several occasions Mr. Perssion told others he wanted a divorce and wanted to cut his wife out of his will. There is no doubt that Perssion loved his daughter and did everything a father would normally do for an offspring. He was greatly interested in her musical education and wanted her to go to college. The daughter was married on May 11, 1961, unknown to her father and mother. Upon learning of the marriage in August, Perssion was deeply hurt. Prior to the marriage Mr. Catherwood had been in Madison only a few times and was only slightly known to Perssion. However, after the marriage Perssion continued to treat his daughter as he always had, still wanted her to go to college, bought her an expensive violin and outwardly at least showed no lack of love and affection toward her although there had always existed a lack of free communication between them.

After the execution of the will and before Perssion's death, both the wife and the daughter saw a copy of the will at the home of the testator. This was discovered by Mrs. Perssion among other papers Mr. Perssion had kept at home. Both of them thought the will was a joke. However, Mrs. Perssion mentioned the will to her husband stating she did not think he would ever do such a thing. Mr. Perssion made no response and the matter was dropped. A claim of $25,000 on behalf of Mrs. Eisenberg was filed in the estate, and for the purpose of the issue here involved it was admitted that she was not going to be able to prove it.

It is not necessary to break down the totality of the evidence which includes other facts by an analysis and allocation to each element necessary to be proven to establish undue influence. In many cases one or more of the elements gain or lose strength by such process and affect in a mathematical sense the certitude the trier of the facts must have to make a finding on undue influence.

The appeal of the appellant's position is strongest in the apparent unnaturalness of the will and in the opportunity to exercise undue influence; but more dispositive is the inference of undue influence which arises from the fact that the attorney, who was a son of the sole beneficiary, drafted and supervised the execution of the will. Unrebutted, such showing makes a prima facie case. The two concurring opinions in the Estate of Barnes (1961), 14 Wis.2d 643, 112 N.W.2d 142, pointed out the rule announced in Will of Faulks (1945), 246 Wis. 319, 17 N.W.2d 423, that if a person standing in a confidential relationship to the testator participates in the drafting and execution of the will is named a beneficiary therein, an inference of undue influence arises. The rule was not applied in either Faulks or in Barnes--the latter case turned on a different point. The rule was applied in an attorney-draftsman-beneficiary case in the Will of Spenner (1963), supra, wherein this court held the inference was overcome by evidence which established the result accomplished by the will, which was not unnatural, produced no special benefit for the attorney as distinguished from the benefits given members of the same class, i. e., cousins, and by the absence of any showing of actual influence to be...