Scheibe's Estate, In re

• Decision Date: 09 May 1967
• Citation: 150 N.W.2d 427,35 Wis.2d 89
• Parties: In re ESTATE of Royal A. SCHEIBE, Decd. ROBERT HILL FOUNDATION, Appellant, v. Arvie H. LEARMAN, Individually and as Exr. of the Estate of Royal A. Schelbe, decd. et al., Respondents.
• Court: Wisconsin Supreme Court

Page 427

150 N.W.2d 427

35 Wis.2d 89

In re ESTATE of Royal A. SCHEIBE, Decd. ROBERT HILL FOUNDATION, Appellant, v. Arvie H. LEARMAN, Individually and as Exr. of the Estate of Royal A. Schelbe, decd. et al., Respondents.

Supreme Court of Wisconsin.

May 9, 1967.

David L. Walther, Milwaukee, for appellant.

E. H. Snyder, Milwaukee, for respondent Learman.

HANSEN, Justice.

There are four issues raised on this appeal:

1. Did the County Court follow the mandate of the Supreme Court in its conclusions of law and judgment?

2. Should the judgment be reversed in the interests of justice?

3. Was the finding of the market value of the real estate of $12,800.00 against the great weight and clear preponderance of the evidence?

4. Was it proper for the county judge to reject the affidavit of prejudice?

In its original opinion, this court specifically stated that the question before the court did not resolve itself on whether or not the executor acted in good faith and was honest as to the manner in which he handled the sale of the real estate. The real question is whether or not the executor fulfilled his duties as a fiduciary while acting in his capacity as such. The opinion correctly stated that good faith alone in the performance of the duties of a fiduciary is not sufficient. Estate of Martin (1963), 21 Wis.2d 334, page 341, 124 N.W.2d 297. The grant of the power of sale to the executor imposed upon him a special confidence, a discretion coupled with a trust to be exercised solely for the benefit of the cestuis que trust. Scheibe, supra. The Scheibe decision cites considerable authority as to the duties of a person occupying a position of trust such as an executor. All of the authority holds executors to the duty of exercising such diligence and caution as a careful and prudent owner would observe in the sale of his own property.

The record now before the court as to the facts and circumstances surrounding the sale of the real estate is the same as on the original appeal. No further evidentiary hearing was held. The entire emphasis of the first opinion reflects a considerable doubt as to whether the executor acted as a reasonable and prudent man with loyalty to the beneficiaries. The salient facts are contained in the first opinion. However, in the absence of a finding as to fair market value, the county court was directed to decide after a hearing whether the respondent was to be surcharged or whether a suit or proceedings started for setting aside the sale.

The county court so interpreted the mandate of this court as to require no further evidentiary hearing, but rather on the basis of the record then before it determined that the appellant had suffered no damage by reason of the sale of the premises at fair market value and approved the sale to Grace Musgrave, sister of the executor, in the amount of $12,800.00.

While it may be argued that the trial court followed the literal wording of the direction of the remand, we conclude that it did not so follow the direction and intent of the court as manifest in the opinion when considered in its entirety.

We find and so conclude that the interests of justice require that the judgment be reversed. See sec. 251.09, Stats.

"This court will not exercise this discretion unless it is convinced that there has been a probable miscarriage of justice--viewing the case as a whole.' Chapnitsky v. McClone (1963), 20 Wis.2d 453, 467, 122 N.W.2d 400.'

Wanserski v. State Farm Mutual Automobile Ins. Co. (1964), 23 Wis.2d 368, page 378, 127 N.W.2d 264, page 270 and Chapnitzky v. McClone (1963), 20 Wis.2d 453, 467, 122 N.W.2d 400, and cases...