Scheer v. Ulrich

• Decision Date: 05 November 1907
• Parties: SCHEER v. ULRICH.
• Court: Wisconsin Supreme Court

133 Wis. 311

113 N.W. 661

SCHEER

v.ULRICH.

Supreme Court of Wisconsin.

Nov. 5, 1907.

Appeal from Circuit Court, Sheboygan County; Michael Kirwan, Judge.

Petition by George Scheer, administrator, against Minnie Ulrich, to set aside an allowance from an estate. From a judgment for petitioner, defendant appeals.

It appears from the record, and is undisputed or found by the trial court: That George Thies, an incompetent person, died intestate October 4, 1905, being at the time about 90 years of age. His wife died about 20 years before he did. That they never had but one child, and she married Hans Scheer in 1875, and died in 1884, leaving two children her surviving--George Scheer, a party to this proceeding, and Gertrude Scheer, who was never married, and died in September, 1899, leaving the said George Scheer as the sole surviving heir at law of George Thies, deceased. Hans Scheer and his first wife, and, after her death, his second wife, lived at the home of George Thies until 1896, when they removed therefrom and arranged with the appellant, Mrs. Ulrich, and her husband, to live with George Thies and board him in his house, and they remained at his house and provided him with board from October 1, 1896, until the time of his death, October 4, 1905. Under the agreement of 1896, the said George Thies retained for his own use three rooms on the first floor, and the remaining eight rooms in the house were occupied by Mrs. Ulrich and her family in payment of his board, which was valued at $10 per month, but the said George Thies was to provide at his own expense for the care of himself and rooms, washing, mending, and fuel. Up to the time of her last illness Gertrude frequently visited her grandfather, and took care of him and his rooms. Upon the death of Gertrude in 1899, Thies offered to pay the Ulrichs $5 per month additional to what they were then getting if they would remain and provide him with board and care, which offer they accepted. George Scheer was absent attending college at Madison and Chicago from the fall of 1896 to March, 1904, and during that time only saw his grandfather in vacation. From August, 1899, to August, 1902, Thies failed both mentally and physically, and required more care and attention than previously, and upon occasions required special care, for which Thies paid Mrs. Ulrich 50 cents for each washing thereby made necessary. In January, 1901, a tentative agreement was made, whereby Thies was to convey and transfer to them certain property, for which they were to provide him with board, care, and lodging, as a member of their family, during his life, and the papers were drawn, but never executed. June 28, 1902, upon due application to the county court and hearing therein, Emil Clarenbach was duly appointed guardian of the person and estate of the said Thies, and he qualified and acted as such until the death of Thies, October 4, 1905. August 1, 1902, such guardian filed an inventory of the estate of said ward, showing personal property of the value of $6,150 and real estate of $3,000. Soon after, and pursuant to due notice given,August 1, 1902, Mrs. Ulrich filed a claim in county court against the estate of the said incompetent for the three years immediately prior to the appointment of said guardian for $300 for each of said years, making in all $900, and an order was entered in said county court fixing February 11, 1903, as the time and place for hearing said claim. Upon the hearing of said claim on the last-mentioned date, one Felix Benfey, an attorney at law, was appointed guardian ad litem for said incompetent, and Francis Williams appeared as attorney for the guardian, and no objection was filed against the allowance of said claim, and upon the sole testimony of Mrs. Ulrich the county court allowed said claim February 11, 1903, at $900, which, with the interest, amounting in all to $917, was paid by said guardian July 30, 1903. The administrator did not learn of such allowance or payment until September, 1904. After the death of Thies October 4, 1905, the grandson, George Scheer, was duly appointed administrator of his estate, and thereupon, and on November 21, 1905, he, as such administrator, filed a petition in the county court to vacate and set aside the allowance of the claim of Mrs. Ulrich, on the ground that the same was obtained by fraud. Upon the hearing thereof in the county court, the same was denied by order dated July 5, 1906, on which order the administrator appealed to the circuit court.

On the trial of said appeal in the circuit court that court found, in addition to the facts stated, in effect, that in numerous conversations with different persons during the years 1901 and 1902 Mrs. Ulrich repeatedly admitted in effect that Thies did not owe her anything; that everything was paid; that he had paid her in advance up to January, 1903, as they needed the money; that in February, 1902, she stated that Thies had paid her for everything so far and she had nothing more to get; that there was nothing coming to her, and that Thies was paying for his board and care, and that he was no extra burden; that in the spring of 1902 she denied having received $400, but admitted that she had received $250; that prior to said allowance in the county court said guardian and his attorney had been informed of such statements and...