Wodill v. Wodill
Decision Date | 22 December 1986 |
Citation | 401 N.W.2d 183,135 Wis.2d 547 |
Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. In the Matter of the Estate of OLGA G. WODILL, Deceased: RALPH WODILL, Personal Representative of the Estate of Olga G. Wodill, Appellant, v. ARNOLD WODILL and PHYLLIS ZILLHART, Respondents. 86-1408. |
Court | Wisconsin Court of Appeals |
Circuit Court, Dodge County
Affirmed
Appeal from a judgment of the circuit court for Dodge county: Joseph E. Schultz, Judge.
Before GARTZKE, P.J., DYKMAN and SUNDBY, JJ.
Ralph Wodill appeals from a judgment construing Olga Wodill's will to leave him seven acres of land. 1.. He challenges the findings of fact on which the judgment was based and the conclusion that he acted in bad faith in distributing to himself fifty-five acres under the will. He also challenges the court's construction of the will to bequeath him seven acres. We conclude that the findings are not clearly erroneous, that the facts found constitute bad faith, and that the construction of the will was not clearly erroneous. We affirm.
Olga Wodill died in 1983. Paragraph four of her will provided:
I am the owner of a farm located in parts of Sections 3, 4, and 33 of the Town of Lowell, Dodge County, Wisconsin. I am presently residing on said farm with my son, Ralph Wodill, and my son, Ralph Wodill, has constructed a greenhouse and miscellaneous structures which in connection with the other farm buildings he is using in a florist business. I give and devise to my son, Ralph Wodill, my farm residence, my farm buildings, and all miscellaneous structures together with sufficient land for the reasonable use thereof with reasonable access thereto from the highway as now in use. In the event there is any dispute as to the amount of land to be included with the buildings stated in this paragraph, I direct that my personal representative make such determination and his determination shall be conclusive.
Ralph Wodill was named personal representative. He chose fifty-five acres as the amount of land which he would receive under paragraph four.
Arnold Wodill and Phyllis Zillhardt, Olga's two other children, are residuary beneficiaries. They challenged Ralph's choice and petitioned the trial court to construe the will. The court held that Ralph breached his duty as personal representative by allocating fifty-five acres to himself. On appeal, we reversed and remanded for findings as to whether Ralph's decision was made in bad faith, or was fraudulent or arbitrary. In Matter of the Estate of Olga G. Wodill, Deceased: Wodill v. Wodill et al., No. 85-1767, slip op. at 3 (Ct. App. January 28, 1986).
On remand, the trial court took testimony from Arnold, Phyllis and Ralph and found that Ralph had acted in bad faith. It based that finding on the following findings of fact. After the will was read to Ralph, Phyllis and Arnold, Ralph stormed out of the house. An argument followed in which Ralph said he was dissatisfied with his allotment under the will and would fight to prevent Phyllis and Arnold from getting anything under the will. He did not speak to them after that point. Ralph notified Arnold and Phyllis in writing of his choice of fifty-five acres after receiving their letter objecting to his handling of the estate.
Ralph denied that he stormed out of the house, that an argument ensued, or that he threatened a fight over the will. The trial court found that his testimony was incredible. It set aside his fifty-five acre allocation and construed paragraph four to award him seven acres.
We affirm the trial court's findings unless they are clearly erroneous. Sec. 805.17(2), Stats. The trier of fact is the ultimate arbiter of the credibility of witnesses. Bank of Sun Prairie v. Opstein, 86 Wis.2d 669, 676, 273 N.W.2d 279, 282 (1979). We therefore conclude that the trial court's adoption of Arnold and Phyllis's version of events is not clearly erroneous.
Ralph contends that, from the evidence found by the trial court to be true, the court inferred he originally believed the will gave him less than fifty-five acres, and he chose this amount of land not because he believed it was correct, but rather out of hostility toward Arnold and Phyllis. Ralph argues that it could also be inferred from the same evidence that he believed the will left him fifty-five acres, but thought he...
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