Rich's Estate, In re

• Decision Date: 05 January 1965
• Citation: Rich's Estate, In re, 131 N.W.2d 909, 26 Wis.2d 86 (Wis. 1965)
• Parties: In re ESTATE of Warren H. RICH, Deceased. Evalyn Rich MAHONEY, Appellant, v. Emily F. RICH, Administratrix of the Estate of Warren H. Rich, Deceased, Respondent.
• Court: Wisconsin Supreme Court

Page 909

131 N.W.2d 909

26 Wis.2d 86

In re ESTATE of Warren H. RICH, DeceasedEvalyn Rich MAHONEY, Appellant, v.Emily F. RICH, Administratrix of the Estate of Warren H Rich, Deceased, Respondent.

Supreme Court of Wisconsin.

Jan. 5, 1965.

Anderson, Bylsma & Eisenberg, Madison, for appellant.

Herbert Morse, Milwaukee, Jerry A. Fine, Milwaukee, of counsel for respondent.

HALLOWS, Justice.

The only issue presented on appeal is whether the trial court's findings are against the great weight and clear preponderance of the evidence; if they are not, the judgment must be affirmed.Estate of Starer(1963), 20 Wis.2d 268, 121 N.W.2d 872.This case rests ultimately upon the credibility of the witnesses, and since it was tried to the court it is the province of the trial judge to determine the credibility and weight of the evidence.Estate of Brandenburg(1961), 13 Wis.2d 217, 225, 108 N.W.2d 374;Guardianship of Coolidge(1960), 12 Wis.2d 58, 64, 106 N.W.2d 282.

In its decision the trial court characterized the appellant as a 'prevaricator unworthy of belief,' and this opinion is based in part upon the fact the will offered by the appellant and which she claimed was given to her by her brother was rather convincingly proven by an expert witness to have been typewritten over the signature of the decedent and after the signature had been placed thereon.While the will could have been refused probate because not properly witnessed and executed, nevertheless the facts relating to the typing of the purported will and the facts hereinafter stated in reference to the purported $12,000 check are entirely sufficient to sustain the court in its disbelief of the uncorroborated testimony of the appellant.Once a witness has testified falsely in a material respect the trier of the fact may, but is not compelled to, disregard all of that witness' testimony which is not corroborated.Nehls v. Nehls(1963), 21 Wis.2d 231, 124 N.W.2d 18;Grosberg v. Grosberg(1955), 269 Wis. 165, 68 N.W.2d 725.Without the testimony of the appellant there is little or no proof to substantiate the claims.

The appellant testified the loan of $12,000 was made on February 22, 1924, at decedent's request so he could purchase a controlling interest in the Fairmount Riding Academy in Milwaukee, Wisconsin.Her testimony is contradictory in respect to the making of this loan on a legal holiday, as to the bank or banks from which she withdrew the money, and in other respects.The principal-evidentiary basis of the appellant's claim is a check purportedly for $12,000 which the appellant testified was given her by her brother to evidence the loan.While the record is somewhat confused on when the appellant received this check and the purpose of the loan, the record is clear from the testimony of one Donald Doud, a questioned-document expert, the check was originally a $12 check which had been unartfully raised to $12,000 and that Dr. Rich had not raised it.This expert testimony, based on the use of enlarged photographs, analysis of penmanship idiosyncrasies, and analysis of the types of leads in the pencils used to execute the check, stands unrefuted in the record, although the appellant did testify she did not raise the check.The trial court had a right to disbelieve the appellant's testimony that a loan for $12,000 was in fact made.

If, however, the trial court were required to believe the loan was made in 1924, recovery is barred by the six-year statute of limitations.Sec. 330.19(3), Stats.The appellant testified her brother paid her $100 in December of 1957 on this loan and contends this payment renewed the obligation and took it out of the statute.The great weight and clear preponderance of the evidence, as the trial court found, is to the effect this payment if made had no relationship to the alleged loan but the $100 was given to the appellant by...