State ex rel. First Nat. Bank and Trust Co. of Racine v. Skow, 78-404-W
| Court | United States State Supreme Court of Wisconsin |
| Citation | 91 Wis.2d 773,284 N.W.2d 74 |
| Docket Number | No. 78-404-W,78-404-W |
| 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. |
| Decision Date | 09 October 1979 |
Page 74
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.
Decided Oct. 9, 1979.
[91 Wis.2d 774] William R. Halsey, Deputy Corp. Counsel, Racine, for respondent-petitioner.
Constantine, Christensen, Krohn & Kerscher, S.C., Racine, for petitioner-respondent.
CALLOW, Justice.
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.
Page 75
Articles Fourth and Fifth of Petri's will provide:[91 Wis.2d 775] "FOURTH: If and in case my wife predecease me or die with me in a common disaster during the minority of our children or any of them, I request the court to appoint our daughter, Linda, guardian of the person or the minor children and the First National Bank & Trust Company of Racine, Wisconsin, guardian of their estate.
"FIFTH: I do hereby constitute and appoint my wife, Freda F. Petri, executrix of this my will and direct that she be permitted to serve without bond and give her the power to sell, mortgage or otherwise dispose of any of my property, real or personal, without requiring her to first obtain the approval of the Court of Probate or any Judge thereof.
"If and in case my wife predeceases me or declines to serve as executrix, I appoint the First National Bank and Trust Company as executor, granting to it like powers."
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[91 Wis.2d 776] 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 [91 Wis.2d 777] positions on the merits, we exercise our discretion to
Page 76
review the order of the court of appeals on its merits. 1The 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.
[91 Wis.2d 778] 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...
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