Wirtz v. Jensen (In re Rasmussen's Estate)

• Decision Date: 07 July 1941
• Citation: 298 N.W. 172,238 Wis. 334
• Parties: In re RASMUSSEN'S ESTATE. WIRTZ et al. v. JENSEN.
• Court: Wisconsin Supreme Court

238 Wis. 334

298 N.W. 172

In re RASMUSSEN'S ESTATE.WIRTZ et al.

v.JENSEN.

Supreme Court of Wisconsin.

May 20, 1941.

Rehearing Denied July 7, 1941.

Appeals from judgments of the County Court of Kenosha County; Robert V. Baker, Judge.

Proceedings in the matter of the estate of Matt A. Rasmussen, deceased, wherein Margaret Wirtz, Elizabeth Wirtz and Bernice R. Ludwig filed claims which were opposed by Chris A. Jensen, administrator. From a judgment, the claimants appeal.-[By Editorial Staff.]

Affirmed.

In the proceedings for the administration of the estate of Matt A. Rasmussen, deceased, Margaret Wirtz filed a claim for $8,500 and interest which she alleged was owing to her by the deceased and was secured by a chattel mortgage executed by the deceased on his property which had come into the possession of the executor. Elizabeth Wirtz filed a claim for $2,000 and interest which she alleged was owing to her by deceased and secured by a similar chattel mortgage. Bernice R. Ludwig filed a claim for $3,000 and interest which she alleged was owing to her by the deceased and likewise secured by such a chattel mortgage. The administrator filed an objection to each claim on the ground that it was not a valid claim against the deceased. Upon a trial on the merits the court allowed the claims of Margaret Wirtz and Elizabeth Wirtz at $8,000 and $2,000, respectively, with interest, but held the chattel mortgages void; and disallowed Bernice R. Ludwig's claim and likewise held void the mortgage upon which she relied. A judgment was entered accordingly in respect to each claim, and the claimant appealed therefrom.Taylor, Phillips & Taylor, of Kenosha, for appellants.

Cavanagh, Stephenson & Mittelstaed, of Kenosha, for respondent.

FRITZ, Justice.

As there was a joint trial of the three claims and there is but one record in the trial court and on the appeals from the judgments, but one opinion is filed in disposing of them. Matt A. Rasmussen died about December 1, 1932. He owned and operated a produce commission business and an 800 acre farm for many years. For some time prior to his death his farm was heavily mortgaged to secure indebtedness which was considerably in excess of the value of the farm. Unsecured claims totaling $111,403.93 were filed against his estate. The appraised value of the personal property of his estate was but $36,497.37, and all of it was subjected to each of the three mortgages, given by Rasmussen to the claimants, Margaret Wirtz, Elizabeth Wirtz and Bernice R. Ludwig, to secure their respective claims. Margaret Wirtz was the mother-in-law of Rasmussen; her daughter Elizabeth Wirtz was his bookkeeper and clerk since 1922; and Bernice R. Ludwig was his daughter by a former marriage. Margaret Wirtz's claim is based in part on a promissory note for $5,300, payable to her and executed by Rasmussen under date of March 17, 1932, and $500 have been paid on this claim and it is now undisputed. She also claims $3,200 on another note payable to her and executed by Rasmussen under date of March 17, 1932. She claims the consideration therefor was moneys loaned by her to Rasmussen over a period of many years, and which, with accrued interest, made up the total of $3,200. No records were produced to establish these loans, but there was parol testimony by Margaret and Elizabeth Wirtz and some corroborating evidence upon which the court found, although somewhat in doubt, that there was sufficient proof to establish an antecedent debt as the consideration for the note of $3,200; and thereupon the court allowed Margaret Wirtz's claim at $8,000 with interest, as evidenced by Rasmussen's notes. Elizabeth Wirtz's claim for $2,000 was based on a note for that amount executed by Rasmussen under date of October 26, 1932. She claimed the consideration therefor was balances which she testified were owing to her from time to time for unpaid salary. There was some other testimony and corroborating evidence, and although the court was likewise in doubt, it finally found that there was sufficient proof to establish an antecedent debt, and thereupon allowed the claim at $2,000, as evidenced by Rasmussen's note. Upon motions to review filed by the administrator under sec. 274.12, Stats., it is contended the court erred in allowing the claim of Margaret Wirtz, insofar as it was based on the note for $3,200; and also erred in allowing Elizabeth Wirtz's claim on her $2,000 note. In connection with these contentions the administrator claims that the evidence does not admit of finding that these notes are supported by consideration.

[1][2] The administrator's contentions and claims in these respects cannot be sustained. Although there is some occasion for doubt, there was sufficient proof, when considered in connection with the rule that “The notes themselves were presumed to have been issued for a valuable consideration” (sec 116.29, Stats.; In re Estate of Flierl, 225 Wis. 493, 499, 274 N.W. 422, 425), to reasonably admit of the findings in question; and under these circumstances they must be sustained. Bernice R. Ludwig's claim for $3,000 was based on notes for $1,078.68 and $1,921.32, executed by Rasmussen under dates of January 11, 1931, and October 28, 1932, respectively. Elizabeth Wirtz testified that the notes represented the accrual of notes of many years by compounding interest yearly on notes in smaller amounts which she found at the office when she started working for Rasmussen; that she did not recall the original amounts of the notes; that she understood that the money was insurance money on the life of Bernice's mother, who died when Bernice was four years old, and that her father had used the money. The claimant testified she did not know the name of the company that paid the insurance, and her only testimony as to any consideration paid by her was that she had at one time let her father have $50. The court found, “That there is no evidence showing or tending to show the amount of insurance money claimed to have been payable to claimant and received and used by said Matt A. Rasmussen, nor is there any evidence as to the identity of the life insurance company from which it is alleged said money was collected”; and “That the evidence offered by claimant in...