Schalla's Estate, In re

• Decision Date: 05 November 1957
• Citation: 2 Wis.2d 38,86 N.W.2d 5
• Parties: In re ESTATE of Frank SCHALLA, Deceased. William Louis Vowinkel SCHALLA, Appellant, v. Helen ROBERTS et al., Respondents.
• Court: Wisconsin Supreme Court

Page 5

86 N.W.2d 5

2 Wis.2d 38

In re ESTATE of Frank SCHALLA, Deceased.

William Louis Vowinkel SCHALLA, Appellant, v. Helen ROBERTS et al., Respondents.

Supreme Court of Wisconsin.

Nov. 5, 1957.

Stafford, Pfiffner & Stafford, Chippewa Falls, for appellant.

John R. Frampton, Chippewa Falls, for respondent.

WINGERT, Justice.

We have reached the conclusion that the application for veteran's benefits, exhibit 73, should have been admitted in evidence, that it constituted a sufficient acknowledgment of paternity to meet the requirements of sec. 237.06, Stats., and that therefore the court erred in determining that the appellant was not the heir of the decedent.

1. The trial court found as a fact that decedent was mentally incompetent when exhibit 73 was executed on July 5, 1920, and excluded the proffered exhibit on that ground, among others. The finding of incompetency was based wholly upon the commitment of the decedent to the State Hospital for the Insane by the county judge on June 24, 1920. There was no other adequate evidence that decedent was incompetent to sign an acknowledgment of paternity at the time in question.

We cannot agree that either the commitment to the hospital or the finding on which it was based warranted the present finding that decedent was incompetent to acknowledge paternity. While an adjudication of insanity has been held to create a presumption of mental incompetency thereafter at least for a substantial period, In re Estate of Staab, 166 Wis. 587, 592, 166 N.W. 326, we think such presumption rebutted if not avoided in the present case by circumstances discussed hereinafter; and that therefore exhibit 73 was entitled to the usual presumption that the person who executed it was competent to do so.

The material part of sec. 237.06, Stats. is as follows:

'Every illegitimate child shall be considered as heir of the person who shall, in writing signed in the presence of a competent witness, have acknowledged himself to be the father of such child * * *.'

We need not agree with appellant's argument that the statutory requirement of a 'competent witness' shows that the mental condition of the father is immaterial. For present purposes we assume that if an acknowledgment of paternity is to be effective, the signer must be mentally competent to do the particular act required by the statute. Thus we take the test of decedent's capacity to make an effective acknowledgment of paternity under sec. 237.06, Stats. to be the same test applied in the case of contracts and other property transactions, i. e., did he have sufficient mental ability to know what he was doing and the nature of the act done. Boorman v. Northwestern Mutual Relief Ass'n, 90 Wis. 144, 148, 62 N.W. 924; Plainse v. Engle, 262 Wis. 506, 511, 56 N.W.2d 89, 57 N.W.2d 586.

The degree of mental ability required to acknowledge paternity is not great. Under sec. 237.06 it is not essential that the written acknowledgment shall be made for the express purpose of establishing heirship or of complying with the statute; indeed it may be made in entire ignorance of the statutory requirements and for purposes other than that of establishing heirship. Richmond v. Taylor, 151 Wis. 633, 643, 139 N.W. 435. This court has gone far in holding that writings in which the recital of parenthood was purely incidental meet the requirements of sec. 237.06, although not intended to affect inheritance. In re Estate of Ecker, 174 Wis. 432, 182 N.W. 977.

A man may be incompetent on some subjects and yet be quite competent with respect to others.

'The law recognizes the fact that there may be derangement of mind as to particular subjects, and yet capacity to act on other subjects. * * * The proof which is necessary to invalidate a man's act by reason of his insanity must show inability to exercise reasonable judgment in regard to such act.' Boorman v. Northwestern Mutual Relief Ass'n, 90 Wis. 144, 148, 62 N.W. 924, 925.

Thus a will made by a person having insane delusions on a single subject may be valid, where the delusions do not materially affect the will. In re Will of Lundquist, 205 Wis. 667, 675, 238 N.W. 861. Also, a person may be incompetent much of the time, and yet have rational periods when his acts will be accorded full legal effect. In re Estate of Knutson, 275 Wis. 380, 384, 82 N.W.2d 196. This court has pointed out that the usual presumption that insanity once established continues thereafter does not apply to cases of occasional or intermittent insanity. State v. Wilner, 40 Wis. 304, 306; Hempton v. State, 111 Wis. 127, 138, 86 N.W. 596; Annotation, 27 A.L.R.2d 121, 124.

The commitment of decendent to the hospital for the insane was made pursuant to secs. 51.01-51.05, Stats.1919, which provided that upon filing of a petition alleging belief that a person is insance, the county judge shall cause an examination to be made by appointed physicians, who shall make a written report consisting of answers to specified questions; and that upon the filing of such report, and a hearing including jury trial if requested, 'If the judge or a jury find that the person thus alleged to be insane is a fit subject to be sent to a hospital or asylum for the insane, the judge shall order him to be committed as hereinafter provided.' Sec. 51.05(1), Stats.1919. Thus the required finding was only that the person suspected of insanity 'is a fit subject to be sent to a hospital or asylum for the insane.' A person might well be a fit subject for mental treatment without being incompetent to do an act of legal significance.

The order of commitment was made on a printed form containing a printed finding that decedent was 'insane'. Attached to the order was the report of two examining physicians, which consisted of longhand answers to a printed questionnaire. The doctors expressed the opinion that decedent was insane and recommended that he be sent to an institution. They reported that the mental disease was first noticeable about May 1, 1919, the there had been one continuous attack, and that it was increasing.

To the question, 'On what subject, or in what way is derangement now manifested?', they answered, 'Has delusions of being persecuted by all fellow workmen. Says they think he is a greater prophet than he really is, though he made some good guesses.' To the question, 'Has the patient shown any disposition to injure others?', they answered, 'Yes. Getting in trouble frequently and has carried a gun as protection. Had several fist fights. When in strange town people make remarks e.g. Great prophet.'

In the medical report there also appears the following significant question and answer: 'Q. Are there rational intervals? A. Yes. Talks correctly when mind is relieved of fear.'

While the order recites in the printed part of the form that it is based on the physicians' report and other evidence submitted, there is nothing in the record to show what if any other evidence there was. Thus the determination of the committing judge, read in the light of the statute pursuant to which it was made and the doctors' report on which it was founded, amounts to no more than a finding that decedent was a fit subject to be sent to the state hospital at Mendota, by reason of an insane delusion that he was being persecuted by his fellow workmen and others because of his status as a prophet, which delusion had rendered him quarrelsome and dangerous to be at large, notwithstanding that he had rational intervals when his mind was relieved of fear.

In our view that finding was not inconsistent with the existence of mental capacity to acknowledge parenthood.

Other circumstances tending to rebut any presumption of incompetency were (a) the fact that a notary public administered an oath to decedent and attached his jurat to exhibit 73 expressly certifying that the statements made therein were made known to the signer; thus indicating the notary's belief that the decedent was competent to take an oath and execute the document; and (b) the fact that exhibit 73,...