Taylor's Estate, Matter of, 75-307

• Citation: 81 Wis.2d 687,260 N.W.2d 803
• Decision Date: 03 January 1978
• Docket Number: No. 75-307,75-307
• Parties: In the Matter of the ESTATE of Edna E. TAYLOR, a/k/a Edna Taylor Giles Norden, Deceased. James O. ONDERDONK, Appellant, v. Patricia T. KEEPMAN et al., Respondents.
• Court: United States State Supreme Court of Wisconsin

Page 803

260 N.W.2d 803

81 Wis.2d 687

In the Matter of the ESTATE of Edna E. TAYLOR, a/k/a Edna

Taylor Giles Norden, Deceased.

James O. ONDERDONK, Appellant, v. Patricia T. KEEPMAN et al., Respondents.

No. 75-307.

Supreme Court of Wisconsin.

Submitted on Briefs Oct. 5, 1977.

Decided Jan. 3, 1978.

James O. Onderdonk, pro se.

Richard J. Callaway, Madison, on brief, for respondents.

DAY, Justice.

This is the second appeal by Mr. James O. Onderdonk in this action brought by the personal representatives of the Estate of Edna E. Taylor to determine the validity of a purported lease and bill of sale. Edna E. Taylor died on June 20, 1972, leaving two sons, a daughter, and an estate worth approximately $500,000. Her will as admitted to probate on September 7, 1972. The will bequeathed her real property to the Edna Taylor Foundation, her daughter the respondent Mrs. Patricia Keepman, and appellant James O. Onderdonk, who is described in her will as her friend. She bequeathed her personal property as follows:

"3. My personal property, jewels and books to be divided between the above named beneficiaries, with they, as executors using their best judgment for distribution to the six children of my daughter, my beloved grandchildren and to the two grandchildren of my friend, above mentioned."

Although her will also named Mr. Onderdonk and Mrs. Keepman as copersonal representatives, the probate court, the Honorable P. Charles Jones, presiding, appointed the Bank of Madison as personal representative. The Bank served for a short time and resigned, and the court then appointed Mrs. Keepman, Onderdonk and Attorney Francis Lamb as successor representatives.

James O. Onderdonk met Edna Taylor in 1953. Shortly thereafter he and his four children became tenants in her home. Onderdonk and his children have resided there as tenants since. Onderdonk is licensed to practice law in Maryland. From 1953 until her death he was her close friend, business manager and legal advisor. Since 1967 Onderdonk has been trustee of the Edna Taylor Foundation, a charitable trust created to promote research in land use and regional planning.

On September 15, 1972, while the Bank was still the personal representative for the estate, Onderdonk notified the Bank of a lease agreement purportedly executed by the decedent on May 15, 1972. By the terms of this document the decedent leased her farm, dairy cattle, farm machinery, tools, furnishings and her Buick automobile to Onderdonk for a rental of $1.00 a year, renewable automatically unless notice is given to the tenant sixty days prior to the expiration of the term. The lease also granted Onderdonk an exclusive option to renew for three years. The lease was signed by the parties and sealed.

On January 6, 1973, after Onderdonk, Mrs. Keepman and Attorney Lamb replaced the Bank as copersonal representatives, Onderdonk produced a letter and bill of sale, both purportedly signed by the decedent and dated May, 1972, in which the decedent for the consideration of $1, sold him all her rights in her personal property (most of which is also covered by the lease). The bill of sale was signed by the decedent and sealed, but it was not witnessed. Upon notice of Onderdonk's claim adverse to that of the estate, the other two personal representatives petitioned for the removal of Onderdonk as personal representative. This petition was granted; Onderdonk appealed and in an unpublished per curiam this court affirmed the removal. 65 Wis.2d 793 (Case No. 298, 1974).

The two remaining representatives then by order to show cause petitioned for a decree requiring Onderdonk to vacate the decedent's premises and account for the assets of the decedent in his possession. The representatives also sought a declaratory judgment as to the ownership of the personal property of the deceased and the existence of a landlord-tenant relationship. This case was assigned to the Honorable Archie E. Simonson after Onderdonk petitioned for a substitution of judge. Judge Simonson concluded that the bill of sale and lease were not valid and ordered Onderdonk to deliver the real and personal property to the personal representatives and to vacate the premises and render an accounting. Onderdonk also appealed this order, and in the same unpublished opinion cited above, this court reversed. This court held that Judge Simonson erroneously refused to admit the lease and bill of sale into evidence. The court remanded the case for further proceedings. On remand Judge Simonson conducted a further hearing and in an extensive memorandum opinion found that the lease and bill of sale were not "authentic" and alternatively, that the lease was procured by undue influence. Mr. Onderdonk now appeals this order. The respondents, Mrs. Keepman et al, have requested double costs to be assessed against the appellant for submitting a brief with "irrelevant material unsubstantiated by the record," and an appendix "full of arguments and omissions."

Issues.

1. Is the finding that the lease and bill of sale are not authentic against the great weight of the evidence?

2. Is the finding that the lease was procured by undue influence against the great weight of the evidence?

3. Do respondents' other challenges have merit?

4. Should double costs be assessed against the appellant?

I. AUTHENTICITY OF THE LEASE AND BILL OF SALE.

The trial court concluded that both the bill of sale and the lease were inauthentic. He declared the May, 1972 letter, with the bill of sale attached, invalid on the ground that it referred to a "heart condition" of Dr. Jay Keepman, Mrs. Taylor's son-in-law, of which Dr. Keepman himself was not aware until after Mrs. Taylor had died. The lease does not contain similar internal evidence that it may have been drafted after Mrs. Taylor's death. Nonetheless, the trial court declared the lease invalid on the ground that "If one (of the two documents at issue) is inauthentic, the other being identical and obtained about the same time, also has to be inauthentic."

Findings of fact by the trial court will not be upset on appeal unless they are clearly erroneous and against the great weight and clear preponderance of the evidence. Greiten v. La Dow, 70 Wis.2d 589, 235 N.W.2d 677 (1975); Chicago, M., St. P. & P. RR. Co. v. Milwaukee, 47 Wis.2d 88, 176 N.W.2d 580 (1970). The hundreds of pages of transcripts in this case have produced remarkably little evidence relevant to the validity of these two documents. What relevant evidence there is includes testimony of several members of the Madison community who were familiar with Mrs. Taylor's signature and who testified that in their opinion the signatures on both the lease and the bill of sale were genuine. The respondents did not produce any evidence controverting this testimony. Instead, they simply introduced the testimony of Dr. Jay Keepman, who stated that he did not learn that he had a "heart condition" until November, 1972, at least five months after the date of the purported bill of sale. Dr. Keepman also admitted that twenty years ago he was treated for cardiac arrhythmia, but explained that neither he nor his mother-in-law, who once taught college English, could have called this relatively minor cardiac irregularity a "heart condition." In a trial to the court the trial judge is the ultimate arbiter of the credibility of the witnesses. Posnanski v. West Allis, 61 Wis.2d 461, 213 N.W.2d 51 (1973); Security Nat. Bank v. Cohen, 41 Wis.2d 710, 165 N.W.2d 140 (1969). Where the facts are disputed, the reviewing court will defer to the fact findings of the jury or the court. Roeske v. Diefenbach, 75 Wis.2d 253, 249 N.W.2d 555 (1977). As long as the findings of facts are made on conflicting evidence, these findings will be affirmed if a judicial mind could, on due consideration of the evidence as a whole, reasonably have reached the same conclusion. Precision Service Co. v. Schill, 60 Wis.2d 346, 210 N.W.2d 706 (1973). The evidence that the signatures on the documents were genuine was uncontroverted. But the trial court was entitled to weigh that evidence regarding the authenticity of the entire document against the testimony of Dr. Keepman. Whether Mrs. Taylor knew of the prior incident of arrhythmia or regarded it as a "heart condition" was a factual determination for the trial court. Since the testimony of Dr. Keepman to the contrary was not incredible, we must affirm the trial court's conclusion that the body of the bill of sale was drafted after Mrs. Taylor's death. The test is not whether this court or any of the members thereof are convinced that the lease was composed after the death of Mrs. Taylor but whether this court can conclude that the trial judge, weighing the credibility of the witnesses and acting reasonably could be so convinced by evidence he had a right to believe and accept as true. Bautista v. State, 53 Wis.2d 218, 223, 191 N.W.2d 725 (1971). We affirm the trial court on this issue.

However, the same conclusion cannot be reached regarding the trial court's determination that the lease is also inauthentic. This court finds nothing in the language or the style of the lease itself which raises a question concerning its authenticity. Even if Onderdonk had tampered with the bill of sale, not every document executed by the decedent that he might propound is ipso facto invalidated. The undisputed evidence was that Onderdonk and Mrs. Taylor had an ongoing lease arrangement similar to the one contained in the May, 1972, lease for almost twenty years. The respondents presented no evidence that Mrs. Taylor underwent a change of attitude regarding Mr. Onderdonk. In fact all the evidence is to the contrary. She made Onderdonk trustee of her Foundation, named him as an executor of her will, and gave him a large share in her estate under the will. Thus the lease, executed roughly contemporaneous with the will that has been admitted to probate, is consistent with Mrs. Taylor's obvious...