State ex rel. First Nat. Bank and Trust Co. of Racine v. Skow, 78-404-W
| Decision Date | 09 October 1979 |
| Docket Number | No. 78-404-W,78-404-W |
| Citation | 91 Wis.2d 773,284 N.W.2d 74 |
| Parties | STATE ex rel. FIRST NATIONAL BANK AND TRUST COMPANY OF RACINE, Petitioner-Respondent, v. Hon. Jon B. SKOW, Racine County Circuit Court Judge, Respondent-Petitioner, Charles R. Petri, Barbara J. Elsen, Richard Neal Petri, Linda Lauritzen, Jon M. Petri, and Duane L. Arena, Guardian ad litem for Richard Neal Petri, Respondents. |
| Court | Wisconsin Supreme Court |
William R. Halsey, Deputy Corp. Counsel, Racine, for respondent-petitioner.
Constantine, Christensen, Krohn & Kerscher, S.C., Racine, for petitioner-respondent.
This is an appeal from an order of the court of appeals which granted the petition of the First National Bank & Trust Company of Racine (First National) for the issuance of a writ of mandamus to the Honorable Jon B. Skow (Judge Skow). The writ ordered Judge Skow to grant to First National domiciliary letters over the estate of Robert Moyle Petri (Petri), deceased.
Robert Moyle Petri, a resident of Racine, died on May 11, 1978. He was survived by his five children. Petri executed an instrument, dated May 22, 1968, which was admitted to probate as his will, without objection. Articles Fourth and Fifth of Petri's will provide:
Petri's wife, Freda F. Petri, dies in November, 1973.
Petri's estate has an estimated gross worth of $300,000 and a net worth, after deducting two mortgages, of about $250,000. The estate consists of Petri's homestead, commercial real estate subject to leases, checking and savings accounts, and miscellaneous other assets. Petri's children are the only beneficiaries of his will.
All of Petri's children desire that Petri's daughter Barbara Elsen be named personal representative in preference to First National, the executor named in the will. Mrs. Elsen is willing to serve without fee, and it is for this reason alone that the beneficiaries seek her appointment and oppose the appointment of First National.
Judge Skow considered separate petitions by Mrs. Elsen and First National for the issuance of domiciliary letters. Each sought to be appointed personal representative of the Petri estate. All parties joined in a written stipulation of facts which was submitted to Judge Skow. Judge Skow rendered an oral decision stating that First National was "unsuitable" and therefore not entitled to receive domiciliary letters. We conclude his findings were based primarily on the following stated reasons:
(1) The testator did not manifest a specific intent to have a corporate fiduciary serve as personal representative; his first choice was his wife.
(2) The will was executed in 1968 when several of Petri's children were still minors; all are now of the age of majority.
(3) It is the unanimous desire of all beneficiaries under the will to have Mrs. Elsen serve as personal representative.
(4) The interests of the estate would be better served by having Mrs. Elsen serve without any fee rather than allowing First National "to work the file so to speak and to collect its two per cent fee."
The court appointed Barbara J. Elsen to serve as personal representative of the estate.
First National filed a petition in the court of appeals seeking a writ of mandamus commanding Judge Skow to issue domiciliary letters to First National. Without allowing Judge Skow to respond, the court of appeals rendered a decision and ordered the writ to issue.
Judge Skow was never ordered to respond to the petition for mandamus and thus was never afforded an opportunity to be heard by the court of appeals. The court of appeals is not permitted to grant, ex parte, a petition for a supervisory writ. See : Sec. (Rule) 809.51(2) and (3), Stats. However, to reverse and remand with directions that the court of appeals reconsider the petition would cause further delay in the processing of the Petri estate. Although denied the opportunity to respond in the court of appeals, Judge Skow has had the opportunity to fully brief the issues in this court. In view of the exigent circumstances in this case, and because the parties have fully briefed their respective positions on the merits, we exercise our discretion to review the order of the court of appeals on its merits. 1
The questions presented are:
(1) Is a probate court restricted to consideration of the competency or capacity of an executor named in the will in determining whether the named executor is "a person whom the court deems unsuitable for good cause shown" under sec. 856.23(5), Stats.?
(2) Was Judge Skow's finding that First National was unsuitable under sec. 856.23(5), Stats., supported by good cause?
This appeal involves an interpretation of subsection (5) of sec. 856.23, Stats. 2 The issue is whether that phrase confers on the probate court discretion to consider matters unrelated to the competency or capacity of a person in determining whether that person is "unsuitable" to serve as personal representative.
Judge Skow concedes that, prior to the enactment of the Probate Code, Chapter 339, Laws of 1969, a probate court was required to appoint as executor a person nominated by a testator if the nominee was legally competent, willing, and gave bond when and as required by law. Sec. 310.12, Stats., 1969; Estate of Svacina, 239 Wis. 436, 444, 1 N.W.2d 780 (1942). "Legally competent" was never expressly defined, but decisions by this court have indicated that legal incompetency could be found when, at the time of appointment, the nominee was prevented from acting as executor by reason of his mental condition, Saxe v. Saxe, 119 Wis. 557, 560, 97 N.W. 187 (1903); by reason of serious conflict between personal interest and an immediate duty of the executor, Estate of Keske, 18 Wis.2d 47, 55, 117 N.W.2d 575 (1962); or by reason of some legal disability, such as minority. See : sec. 310.17, Stats., 1969. A nominee could not be found legally incompetent to serve merely because the heirs objected to the nominee's temper, disposition, habits, and moral character, Saxe, supra, 119 Wis. at 560, 97 N.W. 187; or because of the probate court's conclusion that it was for the best interests of the estate and all persons concerned that another be appointed as administrator. Svacina, supra, 239 Wis. at 440, 1 N.W.2d 780.
Judge Skow argues that, prior to the enactment of the Probate Code, grounds for disqualification were stated in three separate statutes: Sec. 310.16, Stats., 1969 (disqualification for refusal to accept the trust or to give bond); sec. 310.17, Stats., 1969 (disqualification during the minority of the nominee); and sec. 311.02, Stats., 1969 (disqualification of one as unsuitable or incompetent to administer the estate of an intestate). He submits that, by consolidating the factors for disqualification in one section, sec. 856.23, Stats., Persons who are disqualified, and particularly by employing the word "unsuitable" (whereas previously a nominee was entitled to letters testamentary if "legally competent"), the legislature intended that probate courts conduct a broader inquiry before determining that a nominee in the will is entitled to domiciliary letters. He concludes the use of the word "unsuitable" vests a probate court with discretion to disqualify a named executor when considerations unrelated to the nominee's legal or technical capacity convince the court that another should serve instead.
First National contends that the enactment of the Probate Code worked no change in then-existing Wisconsin law regarding disqualification from service as a personal representative. It argues the phrase "unsuitable for good cause shown" merely consolidates prior statutes and embodies case law concerning special situations not otherwise dealt with by statute. See, e. g., Estate of Keske, supra (conflict of interest). First National contends that "suitable" refers only to the nominee's capacity and competence to administer the estate.
In situations where one of several interpretations of a statute are possible, this court " 'must ascertain the legislative intention as disclosed by the language of the statute in relation to its scope, history, context, subject matter, and the object intended to be remedied or accomplished.' " Wisconsin Southern Gas Co. v. Public Service Commission, 57 Wis.2d 643, 648, 205 N.W.2d 403, 406 (1973).
Sec. 856.23, Stats., specifies five grounds for which a nominee may be disqualified. Subsection (1) deals with minority. Subsection (2) disqualifies a nominee of unsound mind. Subsection (3) requires that a corporation may not serve as personal representative unless authorized to act as a fiduciary. Subsection (4) automatically disqualifies nonresidents who have not designated a resident agent to accept service of process. Consistent with the pattern which existed prior to the 1969 Probate Code, sec. 856.23(1) through (4) disqualify a nominee when the nominee is not capable of conducting the affairs of an estate. None of the enumerated limitations allow the court to disqualify a nominee for grounds unrelated to the nominee's capacity or competence to do business. Judge Skow...
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