Roebken v. Carbys (In re Roebken's Will)

• Decision Date: 07 February 1939
• Citation: 283 N.W. 815,230 Wis. 215
• Parties: In re ROEBKEN'S WILL. ROEBKEN et al. v. CARBYS et al.
• Court: Wisconsin Supreme Court

230 Wis. 215

283 N.W. 815

In re ROEBKEN'S WILL.

ROEBKEN et al.

v.CARBYS et al.

Supreme Court of Wisconsin.

Feb. 7, 1939.

Appeal from a judgment of the County Court of Ozaukee County; Charles J. Kunny, Judge.

Reversed, with directions.

In the Matter of the Estate of William J. Roebken, deceased.

The matter came on for hearing upon the final account of Arthur W. Roebken, deceased, sole surviving executor of the will of William J. Roebken. Objections to the accounts were made by Hedwig Backus, heir at law and legatee of decedent, by Walter A. Backus, general guardian of Lillian Boerner, Ralph Boerner, Kenneth Boerner, Russell Boerner, and Shirley Boerner, minor children of deceased daughter of decedent, and by Harold J. Kittsley, guardian ad litem of Allen Bruederle, minor son of a daughter of decedent. The other parties upon this appeal are William H. Roebken, Paula Roebken, Frieda Ritter, Adeline Roebken Rix, Edward T. Roebken, sons and daughters, respectively, of decedent, and Walter J. Bruederle, son of a daughter of decedent; William H. Roebken and Paula Roebken as executors of the will of Arthur Roebken, deceased; Frieda Roebken Ritter and William H. Roebken, executors of the will of Ida Roebken, deceased (Ida Roebken was the widow of decedent); and J. O. Carbys, administrator de bonis non with the will annexed of the estate of William J. Roebken.

In substance the trial court held that the executors of the last will and testament of William J. Roebken had failed to keep accurate and proper accounts, that they had been guilty of fraud in securing a waiver on the part of heirs of the preemptive rights in the purchase of certain corporate stock, and that the account of the surviving executor should be surcharged with the amount of $44,954.59. From this judgment entered on December 29, 1937, William H. Roebken, Paula Roebken, Frieda Ritter, Adeline R. Rix, Walter J. Bruederle, Allen Bruederle, Edward T. Roebken, William H. Roebken and Paula Roebken as executors of the will of Arthur W. Roebken, deceased, and Frieda Ritter and William H. Roebken, executors of the will of Ida Roebken, appeal. The material facts will be stated in the opinion.Schanen & Linley, of Port Washington, and Rix, Barney & Kuelthau, of Milwaukee (Carl B. Rix, of Milwaukee, and Victor Linley, of Port Washington, of counsel), for appellants.

Carbys & Wolfe and Corrigan & Backus, all of Milwaukee, A. W. Grady, of Port Washington (Walter D. Corrigan, Sr., A. C. Backus, and A. C. Backus, Jr., all of Milwaukee, of counsel), for respondents.

WICKHEM, Justice.

The evidence in this case required a printed case of 537 pages and an original record of nearly 1300 pages, and from this some idea may be had of the difficulty of stating the facts with the proper degree of accuracy and still keeping the opinion within useful length.

The decedent, William J. Roebken, died November 12, 1907, leaving a last will and testament. He left surviving him Ida Roebken, his widow, whom he named as co-executor and who, except for certain legacies to be paid out of the rents and profits of the estate, was to have the entire income of same during her life. Ida Roebken died April 30, 1934. Decedent had seven children. The oldest, Arthur Roebken, co-executor and ultimately the surviving executor of the last will and testament, died August 21, 1937. The other children were William H. Roebken, Ida R. Bruederle, Norma Roebken Boerner, Edward T. Roebken, Adeline Roebken Rix, and Frieda Roebken Ritter. Ida Bruederle died March 11, 1928, leaving two sons, Walter J. Bruederle and Allen Bruederle. Norma Boerner died June 5, 1929, leaving five children, Lillian, Ralph, Kenneth, Russell and Shirley Boerner, all minors. The third co-executor under the will was J. Fred Wittenberg, brother of decedent's widow, Ida Roebken. Mr. Wittenberg died in 1925. The principal assets of decedent's estate consisted of 300 shares of stock in the Badger Worsted Mills and 40 shares of stock in the Cedarburg Woolen Mills. The Badger Worsted Mills was a family corporation organized by decedent and engaged in the manufacture of woolen yarns at Grafton, Wisconsin. At the time of testator's death the authorized capital stock was 1,000 shares, of which 400 shares were unissued. Of the 600 shares issued, testator owned 300 shares, Daniel Wittenberg 200 shares, and William H. Hilgen 100 shares. At that time Arthur Roebken was twenty-four years of age and William H. Roebken was twenty-one years old. Both were employed at the mill and immediately assumed the management of its affairs, Arthur becoming president and William vice-president of the company. The executors opened an account on the books of the Badger Worsted Mills in the name of the Estate of William J. Roebken, and in this account entered moneys received and disbursed on behalf of the estate. Upon the payment of expenses of administration and debts of the estate this account was closed and an account opened on the books of the Badger Worsted Mills Company in the name of Ida Roebken, widow and life tenant, and the executors purported to credit to this account all moneys received for her and charge it with moneys paid out on her behalf. It is claimed that as the widow needed money for living and other expenses, she would request these sums from her sons and have checks issued by the Badger Worsted Mills for the sums requested. An account covering receipts and disbursements from November 12, 1907, to January 1, 1912, was filed in county court. This account was filed by the executors, and a request for the allowance of this account was signed by all of the heirs who were of age and by the guardians ad litem for the minor heirs. An account designated as “Executors' Account No. 2” was filed covering the period from January 1, 1912, to April 15, 1922. This was signed by the executors, and its allowance requested by all of the heirs and legatees. Accounts were filed by Arthur W. Roebken, sole surviving executor, covering the period from April 15, 1922, to April 30, 1934, and interlocutory accounts were filed during the progress of this litigation. The matter of the approval of these accounts was not brought on for hearing until 1934. As may be expected from the length of time covered by these accounts and the unconventional way in which the affairs of this estate were handled, the county court found, as this court does, great difficulty in cutting through the confusion and arriving at a fair and accurate conclusion as to the state of the accounts. The most convenient approach to the problem is to consider each finding of the trial court to which objection is made by appellants, and ascertain with respect to it whether the evidence sustains it and whether proper rules of law were applied. The county court, embarrassed by the confusion and difficulty of the matter, had a certified public accountant examine the accounts and make a report thereon. The significance of this and its results will be commented upon later in the opinion.

[1]The first assignment of error relates to the 7th finding of fact. This finding of fact has to do with the first account filed by the co-executors. In that account the executors claimed as credits against corpus various payments amounting to $1,401.18, asserted to have been paid out of the corpus in discharge of debts of the testator. These were disallowed by the trial court for the reason that no oral or documentary evidence was submitted in support of these credits. Sec. 317.10, Stats., provides: “Where an executor or administrator shall in good faith pay any claims against the estate without the same having been filed, such payments may be allowed upon proof that said claims were just demands against said estate and were paid within the time limited for the presentation of claims. Notice that application will be made for such allowance to the executor or administrator shall be served personally or by mail upon all persons interested in such matter at least twenty days before the day of hearing or by publication as provided in section 324.20. Payment shall be allowed on a pro rata basis with other claims when the estate is insolvent.”

There is a complete absence of proof to meet the statutory requisites. While some of the items such as death notices, medicine, nurse, etc., might conceivably be for the final illness of testator, most of the items carry no indication on their face as to what the purpose of the expenditures might have been. It is claimed that the auditor's report shows deductions from corpus and accounts of William J. Roebken paid in a somewhat greater sum than that claimed for allowance. The auditor's report is wholly based upon the books of the Badger Worsted Mills and adds nothing to the account of the executors. It in no way furnishes the evidence required by the estate. It seems quite clear to us that the executors fell into the error of failing to preserve vouchers and invoices which would have established beyond possibility of reasonable conflict that the claims were those of testator, that they were just demands, and that they were paid within the time limited for the presentation of claims. Not having done this, and having allowed about twenty-five years to elapse before the matter was presented to the court for approval, they are now the victims of a situation which they themselves have created. The trial court was not compelled, in the face of such informality and delay, to assume that the payments from corpus were properly disbursed. Hence, we conclude that this finding of fact must stand.

[2][3]Another contention applicable to this assignment of error as well as to one other subsequent assignment is that all of the heirs who were of age and those who then were minors through their guardians ad litem requested the allowance of this account and consented to its allowance in 1912 when the account was filed. We think this contention cannot prevail, under the doctrine of Will of Leonard...