Robinson's Estate, In re

• Decision Date: 01 October 1963
• Citation: 123 N.W.2d 515,20 Wis.2d 626
• Parties: In re ESTATE of Ellis N. ROBINSON, Dec'd. Carol PRISLAND et al., Appellants, v. Rintha M. ROBINSON, Respondent.
• Court: Wisconsin Supreme Court

Page 515

123 N.W.2d 515

20 Wis.2d 626

In re ESTATE of Ellis N. ROBINSON, Dec'd Carol PRISLAND et al., Appellants, v. Rintha M. ROBINSON, Respondent.

Supreme Court of Wisconsin.

Oct. 1, 1963.

Oldenburg & Peckham, Madison, for appellants.

Everett C. Holterman, Madison, for respondent.

GORDON, Justice.

Ordinarily, Wisconsin does not recognize a holographic will as valid since it does not comply with our statutory requirements as set forth in sec. 238.06, Stats. However, under the Uniform Foreign Executed Wills Act, sec. 238.07, if the testament is valid in the state where it was executed, it shall be deemed legally executed for purposes of Wisconsin law. Thus, if the will were executed in South Dakota, the Wisconsin courts would be obliged to determine whether it conforms to South Dakota law, and, if it does, we would then treat it as a valid testamentary disposition. The trial court concluded that the document was entitled to probate, and we agree with that conclusion.

Where the Document was Executed

There was considerable testimony presented at the trial to show that the deceased and his wife, the respondent, left Madison, Wisconsin, for South Dakota on December 28, 1934. The testimony of Mr. Griffin, Mrs. Swezea and Margaret Robinson undoubtedly persuaded the trial court that Mr. Robinson was in South Dakota at the time he wrote the instrument in question. The trial court's conclusion in this regard is entirely warranted by the record.

The appellants contend that the printed matter on the document, which includes a Madison, Wisconsin address, contradicts the finding of execution in South Dakota. It is not required that the document show on its face where it was executed. Stead v. Curtis, 191 F. 529 (9th Cir., 1911); Pounds v. Litaker (1952), 235 N.C. 746, 71 S.E.2d 39. We believe it is clear that the deceased did not intend to incorporate any of the printed matter on the sheet as a part of his holographic will. The handwritten portion of the document constitutes his will, and the printed words, under these circumstances, may be ignored as surplusage. See Estate of Bower (1938), 11 Cal.2d 180, 78 P.2d 1012. Extraneous matter appearing on the paper on which the will is written is to be disregarded where such matter does not constitute a part of the will itself. See Atkinson, Wills (1953), 358. Under the circumstances, we do not consider that the printed matter effectively contradicts the trial court's finding that this will was executed in South Dakota.

While there is no proof that anyone saw Mr. Robinson sign this instrument in South Dakota, there are sufficient facts and circumstances from which the trial court was entitled to reach such conclusion. This is particularly true with reference to the evidence of Mr. Griffin, who not only saw the testator in South Dakota but also testified that the testator discussed with him his intention to protect his wife with a testamentary disposition.

The trial court was also warranted in giving credence to the testimony of Mrs. Swezea, who ascribed to the deceased the specific statement that he had made a will that was valid in South Dakota.

The appellants urge that it was error to have admitted the testimony of Rintha Robinson because she was an incompetent witness under sec. 325.16, Stats. This section provides that no interested party shall be examined as a witness 'in respect to any transaction or communication by him personally with a deceased * * * person.' A long line of decisions by this court has made the operation of sec. 325.16 dependent upon a proper objection. The objection must go to the competency of the witness. If the objection is to the evidence, it is sufficient. This would seem to be a highly restrictive requirement, but it is one which has been persistently followed by this court. Thus, in Zimdars v. Zimdars (1941), 236 Wis. 484, 487, 295 N.W. 675, 677, the court said:

'There are several reasons why defendant's objection was properly overruled. In the first place, the objection was to the evidence and not to the competency of the witness. Union Nat. Bank v. Hicks, 67 Wis. 189, 30 N.W. 234; McCormick v. Herndon, 67 Wis. 648, 31 N.W. 303; Sucke v. Hutchinson, 97 Wis. 373, 72 N.W. 880; Cornell v. Barnes, 26 Wis. 473; Wells v. Chase, 12 Wis. 202, 105 N.W. 799.'

The same rule was recognized in Estate of Rohde (1959), 8 Wis.2d 50, 52, 98 N.W.2d 440, 441:

'This was not a proper objection in that it was made to the evidence and not to the competency of the witness to testify. In re Will of Schultz, 253 Wis. 86, 33 N.W.2d 169; Zimdars v. Zimdars, 236 Wis. 484, 295 N.W. 675, and other cases cited therein. This testimony was therefore competent and relevant.'

The rule has more recently been recited in Estate of Chmielewski, (1962), 17 Wis.2d 486, 493, 117 N.W.2d 601. See also, Currie, Transactions with Deceased Persons, 1948 Wis.L.Rev. 491, 503, where Mr. Justice Currie commented as follows:

'In the early case of McCormick v. Herndon, our court held that an objection to a question proposed to a witness on the stated ground of it being 'incompetent, irrelevant and immaterial' was not sufficient to raise the objection that it called for a transaction with the deceased person, and that the objection to be proper must be raised to the competency of the witness to testify concerning the matter.

'In other words, it is not the testimony, but rather the witness, that is rendered incompetent by the statute.'

Appellants' counsel made several objections to Rintha Robinson's testimony; he challenged it as irrelevant, immaterial and self-serving. However, he did not object on the ground that she was incompetent to testify, and therefore we must conclude that the absence of a proper objection had the same effect as waiving the statute.

When the Document was Executed

We have reproduced the will so that the nature of the date on the document may be better understood. From our examination of the instrument (without considering any additional proof), we believe that the trier of fact was entitled to conclude that it was dated January 1, 1935. We recognize that some would interpret the last figure of the date as other than a '5.'

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The record is devoid of any proof which would contradict the finding of the trial court. The only affirmative proof aside from the face of the instrument itself is in support of the trial court's finding. Thus, Rintha Robinson on cross-examination was asked, 'Are you certain that that is a...