Will of Zych , 251 Wis. 108 ( 1947 )

^* Motion for rehearing denied, with $25 costs, on September 9, 1947. Veronica Gill, Lillian Szczupakiewicz, and Frank Zych, children of Paulina Zych, deceased, petitioned the court to vacate and set aside the decree of said court admitting the will of Paulina Zych, deceased, to probate. From an order dismissing the petition, petitioners appeal.

The deceased, Paulina Zych, was born in Poland, about 1875, and while there married Adam Zych, to which union four daughters and a son were born. Her husband, Adam Zych, came to America in 1905, and she and the five children came to this country between 1920 and 1923. The family settled in Racine, Wisconsin. All of the children married after coming to this country. The four daughters, Veronica Gill, Lillian Szczupakiewicz, Josephine Bogucki, and Mary Ruk continued to live in Racine at all times, and the son, Frank Zych, moved to Milwaukee sometime in 1930. The area in which they settled was predominantly Polish, and Paulina Zych never learned to speak or understand the English language.

During his lifetime Adam Zych purchased a two-flat residence property, the title to which was taken in the name of Adam Zych and Paulina Zych, his wife, as joint tenants. The parents occupied the first floor and rented the second floor to the son, Frank, in 1929 and 1930, when Frank and his family moved to. Milwaukee. The daughter Josephine and her husband rented the upstairs flat from the time Frank vacated it and continued to occupy it until 1938, when a serious family quarrel arose between the daughter and her mother which was never reconciled.

Adam Zych, husband of Paulina Zych, was killed in an automobile accident in 1934. At that time the title to the residence property vested in Paulina Zych, subject to a $5,000 mortgage. She received $2,500 on the death claim of her bus, band and also realized some funds from building and loan stock which her husband owned at the time of his death, which together with savings from her other income made it possible for her to pay off the mortgage on the real estate. Her estate, at the time of her death, May 29, 1945, consisted of this residence property appraised at $11,000 and personal property of the value of $113.25.

In 1930 Mary Ruk's husband became ill and was unable to work and support his family, consisting of his wife and two small children, so she and the children moved in with her parents in July, 1930. Mary Ruk's husband died in 1932. The Ruk's received relief in 1930, but in 1931 Mary Ruk secured employment and continued to work after that time, earning from $50 to $65 a month. She also received aid for dependent children from Racine county. All income received by her was turned over to her mother, which she used with the rent income and garden income to feed and clothe members of the household, including the Ruk family, and maintain the home. Mary Ruk and her children continued to live with her mother until her death.

The daughter Veronica Gill lived less than a block from her mother for twelve years and saw her at least three or four times a week. Her husband, Julius Gill, performed many odd jobs about the Zych property. The daughter Lillian Szczupakiewicz lived somewhat farther away but frequently visited her mother.

Prior to his marriage Frank lived at home and turned over his earnings to his parents from the time he was eighteen years age until he was married at twenty-five years of age. His earnings varied from $1,400 to $1,950 annually. During this period he received his room, board, clothing, and spending money. At the time of his marriage his parents gave him $200 and later the equity in another house in Racine which was subject to a $3,700 mortgage. He later surrendered this property to the mortgagee.

All of the children except Josephine would gather at the mother's home on special days such as her birthday, Christmas, Mother's Day, and on any other special occasion, and the relationship of all members of the family, except Josephine, was most cordial and pleasant.

In 1938 decedent became ill with high blood pressure and a tumor. She was advised to have an operation but before the operation discussed the advisability of a will with her daughter Mary Ruk, who at that time told her brother Frank about it. Mary went to see one Casimir Ziolkowski who lived across the street and whose family was friendly with Mrs. Zych. Ziolkowski was an alderman of the ward and spoke Polish and English. He had a conference with Mrs. Zych at her home and was told she wanted to make a will, and they discussed the disposition of her property. He told her she would have to have an attorney and Mrs. Zych asked about Greenquist who was an attorney. Ziolkowski contacted Greenquist and they went to the home of Paulina Zych and went over the details of how the property should be disposed of, Ziolkowski acting as interpreter as Greenquist could speak no Polish. Mary Ruk was in an adjoining room during these conferences. Greenquist drafted the will later, and Ziolkowski, testatrix, and Mary Ruk went to his office where testatrix and Ziolkowski entered the private office and Mary Ruk remained in the waiting room. Ziolkowski read the will to testatrix paragraph by paragraph and explained the contents to her in the Polish language. Mary Ruk then entered the room and Ziolkowski went over the will a second time, with Mary Ruk in the office. Paulina Zych executed the will with her mark and Ziolkowski and Greenquist signed as witnesses. Mary Ruk had no part in any conferences or discussions regarding the terms of the will. Paulina Zych told Ziolkowski that Mary had lived with her and helped her and that she, Mary Ruk, had no one to look after her as did the other girls who were married. This will was executed on the 23d day of January, 1939.

It was agreed that Mary Ruk took excellent care of her mother and was good to her. Paulina Zych was operated on in February, 1939, and fully recovered from the operation. Additional facts will be set forth in the opinion. In opposing the admission of the will to probate appellants claim, (1) a person whose only communication with the testatrix is through an interpreter is not a competent witness to the will within the meaning of sec. 238.06, Stats., and (2) the will is the result of undue influence by Mary Ruk.

Sec. 238.06, Stats., provides a will shall be "in writing and signed by the testator or by some person in his presence and by his express direction, and attested and subscribed in the presence of the testator by two or more competent witnesses in the presence of each other."

Appellants argue that the only thing Greenquist is competent to testify to of his own knowledge is that he saw testatrix put a mark on a piece of paper which was in form a will; that he did not know whether testatrix was competent or coherent and does not know whether the will was clearly translated to her and was in fact her will or whether she voluntarily signed it.

In Wisconsin it is not necessary that the testator formally publish an instrument as his will. 1 Gary, Wisconsin Probate Law, p. 101, sec. 118. Counsel relies on the reasoning of cases decided in states where the legislature decided as a matter of public policy that the testator declare and publish the instrument to be his will at the time of its execution. When our legislature prescribed the manner of executing a will the question of the advisability of requiring the testator to declare and publish the will as such at the time of execution was not a new question, and undoubtedly the legislature gave full consideration to its advisability. It is probably the common practice of attorneys in Wisconsin to have the testator publish and declare the instrument to be his will at the time of its execution, but in construing sec. 238.06, Stats., this court held that a witness to a will need not know the nature of the instrument in order to be competent to sign as a witness. See Allen v. Griffin (1887),69 Wis. 529, 35 N.W. 21; Skinner v. American Bible Society (1896), 92 Wis. 209, 65 N.W. 1037; In re Noon's Will (1902), 115 Wis. 299, 91 N.W. 670.

A will drawn in accordance with the instructions of testator, executed in due form of law, is valid even though written in a language not understood by testator where it is shown he had full and accurate knowledge of its contents. Will of Walter (1885), 64 Wis. 487, 25 N.W. 538; Will of Arneson (1906),128 Wis. 112, 107 N.W. 21; Quaratiello v. Di Biasi,43 R.I. 325, 112 A. 215; Hauer v. Hauer, 44 S.D. 375,184 N.W. 1; 1 Page, Wills (2d ed.), p. 281, sec. 165.

It is not claimed that testatrix was of unsound mind or that she did not know the contents of the will at the time it was executed. The will was read and explained to her by a reliable person who spoke both the English and Polish languages. Appellants do not deny that testatrix signed this will in the presence of two attesting witnesses and that the attesting witnesses signed at her express direction and request, in her presence and in the presence of each other, but argue the attesting witnesses must know that the testatrix at the time of the execution of the will was of sound mental capacity in order to be competent witnesses. This is not the rule in Wisconsin. A will may be sustained in opposition to positive testimony of one or more of the subscribing witnesses as to mental capacity by the preponderance of the evidence from other witnesses proof is made that the testatrix was of sound mind and there was a valid execution of the will. Will of Emerson (1924),183 Wis. 437, 198 N.W. 441. The attestation clause in itself creates a presumption in favor of due execution of the will which can only be overcome by clear and satisfactory evidence.Will of Frederiksen (1944), 246 Wis. 263,16 N.W.2d 819. While it is helpful for an attesting witness to have knowledge of the mental capacity of the person executing a will, it is not necessary for him to have such knowledge in order to be competent to sign as a witness. The weight to be given to his testimony depends upon the facts upon which he arrived at his conclusion. Greenquist was competent to' testify that the testatrix was of sound mind. He had two conferences with her, and had an opportunity to observe her during the time she was giving directions for the preparation of the will and at the time of its execution. It was for the court to determine how much weight it would give to this evidence he had testified he was unable to state whether or not she was competent at the time of the execution of the will he would still have been a competent witness to its execution.

On the question of undue influence appellants argue that the daughter Mary, who is the sole beneficiary, went to the home of Ziolkowski and requested him to see her mother; that she was at least in an adjoining room and able to hear all of the conversation; that she was present at the time the will was executed; and that the will is not a natural and just will. Undue influence is considered a species of fraud and must be established by clear, convincing, and satisfactory evidence by the contestants. Will of Faulks (1945), 246 Wis. 319, 344,17 N.W.2d 423. Appellants in their brief say:

"Mrs. Zych [testatrix] was not insane or incompetent. It is true there is some testimony that she was childish at times, but although she was not educated, there is no question but that she was normally a shrewd, thrifty and capable woman."

The evidence clearly establishes this to be true. There is nothing unusual about the beneficiary being in the home at the time testatrix discussed the contents of the will with a friend of the family in whom she had confidence. There is no evidence the daughter at any time took part in the conversation or made any suggestions relative to the will. The mother was in, and the daughter went with her to the office of the attorney at the time the will was executed. She had been caring for her mother during this illness and there was nothing about the conduct of the daughter at the attorney's office that is even open to suspicion.

It is argued the will is not a natural and just will. The daughter had lived with her mother for more than twenty years and assisted her in maintaining a home. The other members of the family were well married and cared for. The testatrix told Ziolkowski and another friend that the reason for giving the property to the daughter was the fact that she needed it and the other children were well taken care of. The estate is not large, consisting almost entirely of the residence property which had been the home of this daughter for a period of years.

There is reference to the fact that the daughter misled her brother and sisters about the will after the death of the mother She knew nothing about legal procedure and it was necessary to delay proof of the will until the witnesses could return from military service.

Without going into an extended discussion of all the claims made by appellants, it is sufficient to say that appellants fell far short of offering clear, convincing, and satisfactory evidence of undue influence, and the trial court is amply supported in its finding that there was no undue influence.

By the Court. — Order affirmed.