Sweeney v. Union State Bank (In re Sweeney's Estate)

• Decision Date: 29 April 1946
• Citation: 22 N.W.2d 657,248 Wis. 607
• Parties: In re SWEENEY'S ESTATE. SWEENEY et al. v. UNION STATE BANK et al.
• Court: Wisconsin Supreme Court

248 Wis. 607

22 N.W.2d 657

In re SWEENEY'S ESTATE.SWEENEY et al.

v.UNION STATE BANK et al.

Supreme Court of Wisconsin.

April 29, 1946.

Appeal from an order and judgment of the County Court of Grant County; R. D. Walker, Judge.

In the matter of the estate of Richard J. Sweeney, deceased. From an order and judgment of the county court of Grant County admitting to probate decedent's will of October 10, 1943, denying probate of an earlier will and granting letters testamentary to Union State Bank, objectors to probate of the earlier will appeal, and Loretta Eastman and others, proponents of the earlier will, filed notice of a motion to review.-[By Editorial Staff.]

Order and judgment reversed, and cause remanded with directions.

See, also, 247 Wis. 376, 19 N.W.2d 849.

In proceedings pursuant to a petition filed by Loretta Eastman and three sisters for the admission to probate of a will, dated June 15, 1939, of their brother, Richard J. Sweeney, objections to the probate thereof were filed on behalf of certain heirs at law of a deceased brother and of a deceased sister of the testator. At a hearing on February 23, 1944, pursuant to that petition, the execution and validity of the will of June 15, 1939, were duly established by proof introduced on behalf of the proponents thereof by their attorney, George B. Clementson. Robert M. Rieser, as attorney for the objectors, called as their witness Frank C. Meyer, who testified that he, as attorney for Richard J. Sweeney drafted a will on October 10, 1943, for him which he then duly executed and directed Meyer to put in a desk drawer in the testator's residence. Mr. Rieser then asked Mr. Clementson whether he was in position to produce that will. Mr. Clementson replied in the negative and added that he had heard about the will and was informed it had been destroyed by the testator; and Mr. Clementson declined to enter into any stipulation concerning it. Upon Mr. Rieser's attempting to examine Mr. Meyer concerning the contents of the will, the introduction then of any such evidence was duly objected to by Mr. Clementson upon grounds which he stated; but after some discussion by counsel the court ruled that Mr. Rieser could proceed with such examination of Mr. Meyer, subject to reserving to Mr. Clementson the opportunity and right to cross-examine Mr. Meyer at a later date. Under those conditions, Mr. Meyer testified as to the contents of the will of October 10, 1943, in answer to Mr. Rieser's direct examination; and upon the conclusion thereof Mr. Clementson declined to cross-examine Mr. Meyer excepting to inquire as to the physical appearance of that will and the identity of the attesting witness in addition to Mr. Meyer. Thereupon the court adjourned the hearing to be resumed at a later date.

On June 9, 1944, the court made an order suspending the proceedings, which had been theretofore commenced, until a petition was filed for the probate of the will of October 10, 1943, in accordance with the decision In re Will of Burns, 210 Wis. 499, 246 N.W. 704. On June 14, 1944, Mr. Meyer died. On June 17, 1944, the Union State Bank, as the executor named in the will of October 10, 1943, filed a petition for the probate thereof. On June 30, 1944, there was filed on behalf of the objectors to the probate of the will of June 15, 1939, a petition for administration of the estate of Richard J. Sweeney as an intestate. On resuming the hearing on October 4, 1944, Mr. Clementson renewed his objections, previously stated at the hearing on February 23, 1944, in relation to admitting Mr. Meyer's testimony as to the contents of the October 10, 1943, will, and the court then concluded to admit that testimony in evidence. Upon solely that testimony findings of fact were made by the court as to the contents of the will of October 10, 1943, including a provision that the testator thereby revoked all former wills made by him. And upon testimony in relation to other matters, the court found that the October 10, 1943, will was destroyed on October 24, 1943, by the testator with the belief, understanding and sole intention that such destruction would validate, reinstate and establish his will of June 15, 1939, and that his property would be disposed in accordance therewith; that such destruction of the October 10, 1943, will was relative, dependent and conditional upon such validation of his former will and the efficacy of the disposition of his property thereunder; and the court concluded that the June 15, 1939, will was revoked by the will of October 10, 1943, and was not revived or validated by the destruction of the latter; that the instrument of June 15, 1939, is not the last will of the deceased and probate thereof should be denied; that the will of October 10, 1943, was not revoked by the testator and is his last will and should be established and admitted to probate; and that thereunder the proponent thereof, Union State Bank, should be granted letters testamentary. By judgment entered accordingly probate of the June 15, 1939, will was denied; the will of October 10, 1943, was admitted to probate; and the Union State Bank was appointed executor thereof. From this judgment an appeal was taken by the objectors to the probate of the will of June 15, 1939; and the proponents of that will served and filed notice of a motion to review, under sec. 274.12, Stats., the court's rulings admitting the testimony of Mr. Meyer to which they had objected, and denying the admission to probate of the will of June 15, 1939.

Rieser & Mathys, of Madison, for appellants.

George B. Clementson, of Lancaster, and Hill, Beckwith & Harrington, of Madison, for respondents Loretta Eastman and others.

Donald J. McIntyre and Harry E. Carthew, both of Lancaster, for respondent Union State Bank.

FRITZ, Justice.

In order to sustain appellants' claim that Richard J. Sweeney died intestate, it was incumbent upon them to establish by...