Opinion
June 2, 1955 —
June 28, 1955.
APPEAL from an order of the county court of Sauk county: HENRY J. BOHN, Judge. Affirmed.
For the appellant there was a brief by Hill, Miller Hill of Baraboo, and oral argument by James H. Hill, Jr.
For the respondents there was a brief by Kenneth H. Conway, and oral argument by Vaughn S. Conway, both of Baraboo.
Mrs. Edith Steuber, widow of L. J. Steuber, petitioned the court in which her husband's estate had been administered, praying the court to set aside all proceedings in probate subsequent to filing the petition for probate of the will and to conduct a new administration of the estate. The court denied the petition by an order (called by both parties a judgment) from which the widow now appeals.
On March 14, 1949, Lawrence J. Steuber, a childless widower, executed his last will. The only disposition of his property is contained in the following sentence:
"After the payment of my just debts and funeral expenses I give, devise, and bequeath to my beloved niece Freida Wareham all and singular my estate real and personal to have and to hold the same as long as she may live."
The will nominated the niece, Frieda Wareham, executrix.
On January 20, 1953, Dr. Steuber, then about eighty years of age, married Edith C. who was then seventy-six or seventy-seven years old. He died November 12, 1953, without making another will. Miss Wareham petitioned for the probate of the will. Her petition stated:
"That the names and residences of the husband, widow, heirs, and next of kin, and the ages of minors and residences of guardians, if any, so far as known to petitioner are as follows:
"Edith C. Steuber, widow, Prairie du Sac, Wis.
"Frieda Wareham (spelled Freida in said will), Baraboo, Wis., niece and legatee, both of full age."
Both Miss Wareham and Mrs. Steuber filed a written notice of appearance, waiver of notice of hearing the application for proof of the will, and a consent to its admission to probate. It was so admitted.
In the course of probate proceedings Miss Wareham made written proof of heirship in which she stated on oath:
"That said decedent left him surviving Edith C. Steuber, his widow (or, husband) aged about eighty years, and children or other heirs, with names, relationships, ages, and residences, as hereinafter given:
"Frieda Wareham, legatee, Baraboo, Wis. (Niece).
"That said decedent left him surviving no child, and no child of any deceased child (and no parent or brother or sister or issue of any deceased brother or sister), except as herein set forth."
After Dr. Steuber's death two deeds, dated July 22, 1943, were found among his papers by which he conveyed to Miss Wareham certain real estate in fee. Her name had been typed in the space left for the grantee's name after a name first there had been erased. The date of the deeds is about twenty-eight months after the death of the first Mrs. Steuber. Miss Wareham claimed that Dr. Steuber had actually delivered the deeds to her and then, in accordance with a verbal understanding that he was to have the property for his lifetime, she handed the deeds back for him to keep during that period. The real estate was appraised for inheritance-tax purposes at $11,500.
A dispute arose between Miss Wareham and Mrs. Steuber over the validity of the deeds and also over a new automobile which Mrs. Steuber asserted was bought with her money although title was registered in Dr. Steuber's name. Mrs. Steuber retained counsel and an agreement for disposition of the estate was worked out, reduced to writing, and executed by both women on December 2, 1953. Later Mrs. Steuber wanted somewhat different conditions and on February 3, 1954, a new agreement was executed whereby Miss Wareham paid Mrs. Steuber $1,500, gave to her the automobile, which was appraised at $2,350, and some household furnishings, and agreed to pay Dr. Steuber's debts and funeral expenses, if the net estate was not sufficient to do so. On her part, Mrs. Steuber sold, conveyed, and assigned to Miss Wareham all her right, title, and interest, including widow's rights in and to the estate of Lawrence J. Steuber, and released Miss Wareham from all claims by Mrs. Steuber against her arising out of Dr. Steuber's estate or otherwise and, finally,
"Said Edith C. Steuber hereby authorizes the county court for Sauk county to assign in said estate the entire net estate to Frieda Wareham."
Mrs. Steuber had the assistance of her own counsel in the negotiation and preparation of this agreement, also.
On May 18, 1954, the county court approved the executor's final account and entered judgment confirming title in the automobile and some of the furnishings in Mrs. Steuber and assigning the residue of the estate to Miss Wareham. In so assigning the realty the judgment recited that it was in accordance with the foregoing assignment by Mrs. Steuber, which had been filed with the court.
Miss Wareham was killed in an accident June 2, 1954. Her age does not appear except that it was less than that of Mrs. Steuber. On July 31, 1954, under the provisions of sec. 324.05, Stats., Mrs. Steuber filed a verified petition which alleged that the petition for the probate of the will did not set forth the names of many heirs of Dr. Steuber and that no notice of the proceedings was given them. Mrs. Steuber alleged that the omission was fraudulent, and that Miss Wareham fraudulently failed to include in the inventory the real estate described in the two deeds, listing them only for inheritance-tax appraisal. There were other allegations that Miss Wareham had misled the court by concealment of the truth respecting the heirs and the deeds and in the same manner had fraudulently persuaded Mrs. Steuber to sign the two settlement agreements. The petition demands that all proceedings in Dr. Steuber's estate subsequent to the petition for the probate of his will be set aside and held in abeyance for a retrial and that the court appoint an administrator with the will annexed to administer the Steuber estate, and that equitable relief be granted.
Miss Wareham being dead, the petition was opposed by the administrator (with the will annexed) of her estate. His affidavit with supporting exhibits showed that Mrs. Steuber had begun an action in the circuit court for Sauk county to set aside the deeds and the settlement agreements as being obtained by the fraud of Miss Wareham. The administrator also denied the other allegations of the petition which charged fraud or improper conduct to Miss Wareham and asserted that the settlement made was fair, entered into with a knowledge of all facts, with advice of counsel, and was not repudiated until the unexpected death of Miss Wareham gave a greater value to the remainder which the will gave to Mrs. Steuber after a life estate to Miss Wareham, wherefore, the administrator alleged, the demand of the widow's petition is barred by laches and estoppel.
The court made findings of fact upholding the probate proceedings, the settlement, and the deeds, and reciting that the final judgment in probate assigned the estate in accordance with the will and with a settlement agreement voluntarily made by the widow for a valuable consideration, and upon advice of her counsel; and that the widow has not tendered return of the consideration nor did she make charges of fraud until after the death of Miss Wareham. The court denied the petition to vacate the probate proceedings or give other relief.
The present proceeding was brought before the county court in reliance on sec. 324.05, Stats., which reads:
"EXTENSION OF TIME FOR APPEAL; RETRIAL. If any person aggrieved by any act of the county court shall, from any cause without fault on his part, omit to take his appeal within the time allowed, the court may, upon his petition and notice to the adverse party, and upon such terms and within such time as it shall deem reasonable, but not later than one year after the act complained of, allow an appeal, if justice appears to require it, with the same effect as though done seasonably; or the court may reopen the case and grant a retrial, but the order therefor must be made within one year after the act complained of."
The petition is addressed to the discretionary powers of the court whose determination will not be reversed except for an abuse of discretion. Estate of Schaefer (1952), 261 Wis. 431, 53 N.W.2d 427; Estate of Trimpey (1950), 257 Wis. 481, 44 N.W.2d 308.
Appellant contends that the brothers and sisters of Dr. Steuber and the numerous children of deceased brothers and sisters were his heirs and were persons interested in his estate and, consequently, the failure of the executrix to name them in her petition for probate violated sec. 310.045, Stats. (which directs that the names and addresses of all persons interested, so far as known to the petitioner shall be set forth), rendered the petition defective; further, that secs. 310.04 and 324.18 require notice of the proceedings to be given interested parties and failure to notify such relatives rendered the proceedings void for lack of jurisdiction. She charges that the refusal of the court to reopen and rehear the proceedings when such omissions were called to the court's attention by the widow's present petition was an abuse of discretion.
Sec. 310.045(2), Stats., states:
" Probate or administration. In a petition for probate of a will or for administration, the legatees and devisees and the surviving spouse and heirs of the decedent are persons interested. Creditors who are not petitioners are not interested persons within the meaning of this subsection."
The brothers, sisters, nephews, and nieces referred to are not interested parties, being neither legatees, devisees, or heirs. They are not named or described in the will and cannot take under it. In so far as there might be a complete or partial intestacy they are not heirs. Sec. 237.01(2), Stats., provides for the descent of real property under the circumstances at hand:
"237.01 HOW TO DESCEND. When any person shall die seized of any lands, . . . not having lawfully devised the same, they shall descend, subject to his debts, except as provided in section 237.02 [the homestead], in the manner following:
"(2) If the intestate leave no lawful issue, to his or her widow or widower; . . ."
Sec. 237.02, Stats., provides that the homestead of an owner who dies without having devised the same and who is survived by a widow but no issue descends to his widow. Sec. 318.01 provides that the residue of personal estate not disposed of by the will and not necessary for the purposes of sec. 313.15, — not material here, — shall be distributed as is real estate under ch. 237, Stats., except when the owner is survived by both a spouse and issue.
It appears, therefore, that the collateral relatives mentioned by appellant could not inherit any of Dr. Steuber's property, who was survived by a widow but no issue. They are not interested parties under our statutes. The statement in the proof of heirship that there were no surviving collateral relatives except Miss Wareham was not true but under these circumstances their existence was immaterial. The misstatement could not affect the rights of anyone. It follows that there was no fraud by the executrix in leaving them out; and no abuse of discretion by the trial court in refusing to reopen probate on the theory that thereby fraud had been committed.
Concerning the deeds, Mrs. Steuber twice executed agreements in which, for good consideration which she accepted and has retained, she compromised and settled all disputes concerning them. She had the advice of her own counsel in so doing and he appears as a witness to each agreement. She says that Miss Wareham misinformed her as to her legal rights to the property but the trial court might well consider that she had legal advice of her own. Much of her argument is based on vain repetition of the alleged fraud in the omission of naming the collateral relatives which is supposed to demonstrate that Miss Wareham was disposed to fraud.
The facts that the deeds were among Dr. Steuber's papers when he died, from which a nondelivery might be argued, and that Miss Wareham's name as grantee was typed in over an erasure, from which it might be claimed that the alteration was not made by Dr. Steuber, were evident at all times and their implications were as apparent before the settlement as they are now. The widow's petition does not allege other specific misrepresentations on the part of Miss Wareham to overcome a reasonable view by the trial court that her settlement was made with as much knowledge of material facts as she now possesses. The court could also consider that a remainder after a younger woman's life estate had small actual value and that the widow did not question the compromise until Miss Wareham's sudden death terminated her life estate and, if the compromise could somehow be repudiated, increased the value of the remainder. Finally, the trial court had proof that even as Mrs. Steuber was applying to him she was prosecuting an action for the same relief, based on the same facts, in the circuit court for the county.
If it were necessary for us to select a single reason by which to uphold the trial court's discretionary denial of the petition, it would be embarrassing to choose one among so many that are good and sufficient. We can find no abuse of discretion either in respect to the administration of Dr. Steuber's estate or in respect to appellant's contentions concerning the deeds.
By the Court. — Order affirmed.