Popp's Estate, Matter of

Decision Date05 April 1978
Docket NumberNo. 75-811,75-811
Citation82 Wis.2d 755,264 N.W.2d 565
PartiesIn the Matter of the Estate of Wallace W. POPP, Deceased. Patrick T. SHEEDY, successor personal representative of the estate, William Popp, Northwestern National Insurance Company, and First Wisconsin National Bank of Milwaukee, Respondents, v. Helen M. POPP, Appellant.
CourtWisconsin Supreme Court

Lichtsinn, Dede, Haensel & von Bereghy, S. C., Milwaukee, on brief, for appellant; Eldred Dede, Milwaukee, argued.

Patrick T. Sheedy, Milwaukee, argued and on brief, for respondents.

This is an appeal from an order entered October 20, 1975, in the matter of the estate of Wallace W. Popp. The order approved the sale of certain real estate and provided for partial distribution of the sale proceeds. The petitioner-appellant, Helen M. Popp, contends that this order was improper and that, as implemented, the order has caused the estate to become insolvent.

CONNOR T. HANSEN, Justice.

Wallace W. Popp died January 25, 1969, survived by his former wife, Helen M. Popp, the appellant in the instant appeal; by his son, William W. Popp; and by two daughters. The single asset of the estate of Wallace W. Popp relevant to this appeal was a 25-unit apartment building located in the city of Milwaukee. This building was appraised, in the inventory, at $225,000, subject to two mortgages in the total amount of $152,865.65.

By a will executed October 18, 1962, Wallace W. Popp had devised and bequeathed his entire estate, after payment of debts, obligations and taxes, to his then wife, Helen M. Popp, and had appointed her as executrix of the will. The will was admitted to probate in the county court of Milwaukee county, probate division, on January 31, 1969, and Helen was appointed as personal representative of the estate.

Proceedings in the estate were soon complicated by what has proved to be a long and acrimonious dispute between Helen M. Popp and her son, William. The basis of this dispute is not apparent from the present record. However, it is evident that this dispute is a significant reason for this estate remaining unsettled more than nine years after the death of Wallace W. Popp.

Because the present appeal is the result of an extended course of litigation, the facts are somewhat confusing. This confusion is compounded by the failure of the respective parties to set forth, with clarity, what we perceive to be the pertinent facts or the issues they apparently intend to raise on appeal. The situation is further aggravated by the fact that the respondent, personal representative, has not addressed the issues advanced by the appellant.

We conclude that the following facts are germane to this appeal.

In May, 1970, Helen and William attempted to resolve their differences in a compromise agreement. This agreement, approved by the probate court, provided in essence that upon completion of administration of the estate, William would receive a one-third interest as a tenant in common in the apartment building, subject to the outstanding mortgages. In exchange, he would not contest Helen's right to the estate and insurance proceeds, and would pay a share of the administration expenses and estate and inheritance taxes.

Helen soon encountered difficulty administering the estate. Her accounts, filed periodically through August 25, 1975, showed a persistent deficit. Because of the insolvency of the estate which Helen attributes to William's failure to pay his share of expenses and taxes pursuant to the May, 1970, compromise agreement the estate was not closed.

To enable the outstanding claims and expenses to be paid and the estate to be closed, the probate court in November, 1974, ordered the sale of the apartment building. Helen was given the option, however, to meet any public offer for the property. When an offer of $265,000 was received, Helen elected to reject the offer, retain title to the real estate, and pay the estate an amount equal to the net amount which would have been realized from the $265,000 offer. Helen was subsequently unable to fulfill this obligation, a fact which she ascribes to William's alleged failure to comply with the compromise agreement.

On September 9, 1975, Helen was removed as personal representative, and Patrick T. Sheedy, the respondent on this appeal, was appointed successor personal representative (hereinafter personal representative). He petitioned the court for permission to sell the real estate for $240,000.

A hearing was held before Judge J. K. Callahan on October 6, 1975; the petition to sell the real estate was granted and Judge Callahan ordered the sale of the real estate. However, the order for sale was signed by Judge Michael T. Sullivan on October 20, 1975, and herein lies the difficulty. Helen now claims that the order for sale signed by Judge Sullivan did not conform to the order for sale pronounced by Judge Callahan at the conclusion of the hearing on the petition for sale.

The building was sold and the proceeds disbursed in accordance with the order for sale entered by Judge Sullivan. After the disbursement of the funds in accordance with this order, the estate found itself with insufficient funds to pay the outstanding administration expenses, claims and taxes.

The parties now seek to assign responsibility for the apparent insolvency of the estate.

Helen and the personal representative each petitioned the county court for relief from the October 20, 1975, order for sale on various grounds, in an effort to restore the estate to solvency. These petitions were denied. Helen now appeals from the order for sale. Still pending in the probate court are Helen's petition for payment of her claim and advances in the amounts of $1,439.91 and $18,855.97, respectively, and the personal representative's petition to have Helen's account surcharged on the ground that she is responsible for the insolvency of the estate.

On this appeal, Helen does not contest the sale of the real estate, but rather challenges the method in which the sale proceeds were disbursed pursuant to the order for sale, asserting that this disbursement has caused the insolvency of the estate.

At the time of the October 6, 1975, hearing before Judge Callahan which resulted in the order for sale, there were two potential obstacles to sale of the real estate. First, William was entitled, under the compromise agreement of May, 1970, to receive a one-third interest in the property upon the completion of administration of the estate. Second, Helen M. Popp had, on March 22, 1974, signed a security agreement covenanting that she owned the real estate and purporting to convey a security interest therein to the First Wisconsin National Bank of Milwaukee, in exchange for credit extended to a business owned by her. At the time of sale, this security interest was in the amount of $58,453.91.

Both of these possible clouds on the title were discussed at the October 6, 1975, hearing before Judge Callahan, and were addressed in the written order signed by Judge Sullivan on October 20, 1975. The order for sale signed by Judge Sullivan directed that William be paid the sum of $35,000 in final settlement of his claims in the estate; that the First Wisconsin National Bank of Milwaukee release its security interest in the real estate in exchange for a security interest in the sale proceeds; and that the proceeds remaining after payment to William be disbursed in such manner as the attorneys for Helen and the First Wisconsin National Bank of Milwaukee might jointly direct.

Pursuant to this order, William was paid $35,000, and $58,453.91 was paid to the First Wisconsin National Bank of Milwaukee as a partial distribution of Helen's residuary share of the estate. Although the order authorized the successor personal representative to withhold from any amounts distributable to Helen a reasonable amount for the payment of taxes, debts, fees and expenses owing in the estate, no such amount was withheld.

Additional facts are set forth in discussion of the issues, which we consider to be:

1. Did the written order for sale improperly enlarge or vary the oral pronouncement of the presiding judge from the bench?

2. Did the order for sale improperly provide for distributions to residuary beneficiaries prior to payment of administration expenses and allowed claims?

3. Should the order for sale have limited William Popp's payment to out-of-pocket expenses in the amount of $11,295.31, instead of directing payment to him of $35,000?

4. Are the remaining issues raised by the parties properly before this court on the present appeal?

Helen contends that the written order entered October 20, 1975, should not have authorized distribution of sale proceeds to William or to the bank. At the October 6, 1975, hearing, she contends, Judge Callahan approved an order for sale and nothing more. The subsequent written order, prepared by the personal representative and signed by Judge Sullivan, not only authorized the sale, but also authorized distributions to William and to the First Wisconsin National Bank of Milwaukee for the benefit of Helen. She acknowledges that these items were discussed at the hearing, but insists that Judge Callahan did not intend them to be included in the order for sale. She argues that the written order of October 20th must be conformed to the oral pronouncement of Judge Callahan.

This court has held that the oral pronouncement of an order may be effective, insofar as it concerns the parties and the trial court, even though it has not been reduced to writing. State v. Powell, 70 Wis.2d 220, 222, 234 N.W.2d 345 (1975); State ex rel. Hildebrand v. Kegu, 59 Wis.2d 215, 216, 207 N.W.2d 658 (1973). The judicial act is complete when the order is announced from the bench; reducing it to writing is merely a ministerial act to preserve evidence of the order. State ex rel. Hildebrand v. Kegu, supra, at 216, 207 N.W.2d 658. 1

Although sec. 270.53...

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