Ruediger's Estate, Matter of

• Decision Date: 05 April 1978
• Docket Number: No. 75-789,75-789
• Citation: 83 Wis.2d 109,264 N.W.2d 604
• Parties: In the Matter of the Estate of Bertha L. RUEDIGER, Deceased. Gerhard RUEDIGER, Appellant, v. Patrick J. SHEEDY, personal representative and Manfred Ruediger, Respondents.
• Court: Wisconsin Supreme Court

Page 604

264 N.W.2d 604

83 Wis.2d 109

In the Matter of the Estate of Bertha L. RUEDIGER, Deceased.

Gerhard RUEDIGER, Appellant, v. Patrick J. SHEEDY, personal representative and Manfred

Ruediger, Respondents.

No. 75-789.

Supreme Court of Wisconsin.

Submitted on Briefs Feb. 8, 1978.

Decided April 5, 1978.

Carr, Kulkoski & Carr, New Berlin, on briefs for appellant.

Brendel, Flanagan & Sendik, S. C., Wauwatosa, on brief for respondents.

CALLOW, Justice.

This appeal is taken from an order in probate directing Gerhard O. Ruediger, one of the two sons of the decedent Bertha L. Ruediger, to pay the personal representative $10,114.50 together with interest. This amount represents cash which the probate court determined should be added to the original inventory of the assets of the estate. The order requiring Gerhard to pay $10,114.50 in cash resulted from an objection to the inventory filed by Gerhard's brother Manfred. Gerhard challenges both the procedure used by Manfred to make his objection to the inventory and the evidence relied on by the probate court in concluding that $10,114.50 in the possession of Gerhard is due the estate.

Three issues are presented on appeal:

I. Has Gerhard waived his right to review by failing to appeal from an earlier order ?

II. Did the filing of an objection to the inventory give the probate court personal jurisdiction over Gerhard with respect to his interest in the cash ?

III. Did the probate court err in admitting as evidence of an incomplete inventory an unaccepted offer to settle the estate made by Gerhard to Manfred ?

Bertha L. Ruediger died at the age of ninety on March 15, 1973, in a nursing home in Milwaukee. She left two living sons, Gerhard O. Ruediger of Milwaukee, and Manfred Ruediger of Mystic, Connecticut. Mrs. Ruediger executed a will dated July 19, 1965, in which she named Gerhard personal representative, bequeathed several specific cash gifts to enumerated persons, and bequeathed the residue of the estate to Gerhard and Manfred equally. Gerhard had possession of the will and knew its contents. After Mrs. Ruediger sold her Milwaukee residence in 1970, until she entered a nursing home less than one month before her death, she lived with her son Gerhard.

Although sec. 856.05(1), Stats., requires a will to be filed in court within thirty days of the testator's death, Gerhard waited seven months after his mother's death to file a petition for probate of her will. In the petition he listed the assets of the estate as $5,500 in personalty and no realty. Manfred filed an objection to the appointment of his brother Gerhard as personal representative of the estate. This objection alleged that Gerhard failed to file the will within the thirty-day period set by law, that Gerhard intended to make a claim against the estate for nursing care furnished the decedent, and that Gerhard attempted to avoid probate of the will, including the payment of estate and inheritance taxes, by means of an agreement between the two sons.

The court held a hearing on Manfred's objection to the appointment of Gerhard as personal representative. At the hearing Gerhard's counsel told the court that Bertha was afraid of banks. When she sold her home in 1970, $3,000 was deposited in the joint account, and $5,000 was invested in a certificate of deposit in the names of Bertha, Gerhard, and his wife as joint tenants with survivorship rights. In addition to this, Bertha kept cash in her room, and Gerhard kept $2,600 in cash for his mother. In 1972 the joint account was closed out and the certificate of deposit was surrendered so that Bertha could receive Title 19 Medicare. Gerhard testified that the money that went into both the savings account and the certificate of deposit was solely Bertha's money. Gerhard also testified that he now has $7,000 of his mother's money in a box in his home.

The trial court permitted Manfred to introduce into evidence a document entitled "Agreement," which was signed and acknowledged by Gerhard on August 22, 1973, but which was never signed by his brother Manfred. This agreement recites that "in order to avoid a possible conflict, the two residuary legatees are desirous of making a compromise settlement." It recites the provisions of Bertha's will and lists the debts chargeable against the estate. It also recites that the parties have agreed to two "charges." These "charges" are not listed as bequests in the will. The agreement further recites that "the probate estate consists of cash in the sum of $13,639.80 and an account receivable from Manfred Ruediger in the sum of $1,850.00 for total assets of $15,489.80," and that the balance due the two residuary legatees when the total charges were subtracted from total probate assets was $7,891.30. In the agreement the undersigned agreed that the charges against the estate be paid, that the balance of a contract between Gerhard and the decedent for the maintenance of the decedent be paid to Gerhard in the amount of $3,864.50, and that the residue be distributed to Manfred and Gerhard in the amount of $3,945.65 each.

Manfred sought the admission of this agreement as evidence that the probate assets included cash in the amount of $13,639.80. Gerhard objected on the ground that the agreement was an unaccepted offer to compromise which was inadmissible. The trial court overruled this objection because, since the agreement was signed by Gerhard two months before he filed the will, Gerhard's "machinations in the meantime are properly before the court." Gerhard also admitted that he considered the funds Bertha deposited in the joint account and the certificate of deposit as gifts to him and his wife for which, as personal representative, he need not account.

Based on this testimony the court sustained Manfred's objection to the appointment of Gerhard as personal representative and appointed Attorney Patrick T. Sheedy, with the consent of the parties. The court stated that, although the fact that Gerhard failed to file the will promptly and failed to put the probate assets in an interest-bearing account were factors in its decision to sustain the objection to the appointment, the principal reason was the fact that Gerhard and his wife were going to make a claim to a substantial portion of the estate, and that Gerhard should not be the judge of his own claim.

On April 1, 1974, Mr. Sheedy filed a general inventory listing the assets of the estate as $5,500 in cash, the amount of assets listed on Gerhard's original petition for probate of the will. Manfred filed an "Objection to the Inventory," alleging that the estate should include assets of $13,639.80 as admitted by Gerhard in the agreement.

At the hearing on November 18, 1974, on this objection to the inventory, Gerhard moved to dismiss the objection on the grounds that the "subject matter was not properly before the court." Despite this reference to the subject matter, Gerhard's objection is more accurately described as an objection to the court's personal jurisdiction over him. He contended that the exclusive procedure to reach uninventoried assets of the estate is contained in sec. 879.63, Stats., which requires commencement of an "action." He contended that because he was not served with a summons the court should dismiss the objection for lack of personal jurisdiction over him. The court denied the motion and proceeded to hear the merits of Manfred's objection to the inventory.

Gerhard testified that after the funeral he spoke to Manfred on the phone about the size of his mother's estate and told him that the share Manfred would get was approximately $2,100. He testified that Manfred asked for more money. As a result, Gerhard consulted his attorney to draft an agreement as a compromise settlement. Manfred did not accept this offer.

The record shows that the sale of Bertha's home in 1970 produced the cash in her estate. Gerhard testified that some of his mother's money was in his possession, that some was in his brother's possession, and that he found some hidden in her room. Gerhard insisted that the proceeds of the joint savings account and the certificate of deposit were a gift to him, though the trial court consistently sustained all objections to evidence regarding Bertha's making a gift of her money to Gerhard and his wife on the grounds of the dead man's statute, sec. 885.15, Stats.

Based on the recitation in the agreement that the probate estate consisted of assets of $13,639.80, the court sustained Manfred's objection to the inventory and ordered the personal representative to file an amended inventory. Pursuant to this order, Mr. Sheedy filed an amended inventory listing the probate assets as $228.90 in cash received from Gerhard and $13,410.90 in cash due the estate from Gerhard.

Manfred then moved the court by order to show cause to compel Gerhard to pay Mr. Sheedy the $13,410.90 sum specified in the amended inventory. After a pretrial conference, the court reduced the amount due to approximately ten thousand dollars to reflect certain credits found to be due Gerhard and on May 14, 1975, declared that amount to be due.

Gerhard appealed from the May 14 order, but the appeal was dismissed by stipulation of the parties. The parties agreed to dismiss the appeal because they suspected that the precise language of the May 14 order, declaring a sum due without ordering the payment to be made, made the order nonappealable.

On January 20, 1976, Manfred again moved the court by order to show cause to compel Gerhard to pay over the amount due the estate. Yet another hearing was held. However, the court postponed making an order until after a forthcoming pretrial conference. The court also pointed out that any order made after the forthcoming pretrial conference compelling Gerhard to turn over a specified amount to the personal representative would not constitute a conclusive determination of the ownership of the cash. The court stated that "the...