Dean v. Brooks , 88 Wis. 667 ( 1894 )

The following opinion was filed October 2, 1894:

Cassoday, J.

In September or October, 1888, the defendant married the daughter of the testator’s brother Dennis. Dennis had no other child, and from that time on he made his home with the defendant in Superior. Soon after the marriage, if not before, Dennis made an arrangement with an attorney at Superior to test the validity of the devises mentioned in the foregoing statement. That arrangement, according to the testimony of Dennis, was to sthe effect that the attorney should prosecute the suit and pay all .costs and expenses, and have for his compensation one third of all he might recover as the share of Dennis. It appears to have been understood, however, at the time, that Dennis should try and induce the other heirs to join in making such contest. Dennis appears to have been in poor health, and accordingly wanted the defendant to< join with him in securing from the estate what he could, and so communicated the arrangement he had so made with his attorney to the defendant, and suggested that he should become interested in the enterprise. Soon after, Dennis visited the heirs in New York, and sought to induce them to join in making the contest. They were all in good financial circumstances, except Thomas. He was over seventy years of age, had no property, and in 1889 was working as a janitor of a school building, at $92 per month. He had two daughters, living with him at the time, and a son. In January, 1889, Dennis visited his nephew in Milwaukee, and induced him, in behalf of himself and his two sisters in Cleveland, to open correspondence and negotiations with the defendant' for the sale and conveyance to him of their interest in the estate. Such sale, after considerable correspondence, was finally consummated in a personal interview between the defendant and the nephew in Milwaukee, April 20, 1889. Three days afterwards, the defendant called upon Thomas, in New York, and told him he had bought out the Milwaukee and Cleveland heirs upon the terms mentioned, and offered to buy out his interest on the same terms. Thomas replied that he would do as his sister Mary did, or that he would think it over and probably.do as Mary and Dennis advised. There is no claim that Thomas was informed as to the value of the lands so devised, nor that the defendant’s attorney’s fee of $3,000 was contingent upon recovery. The defendant testified to the effect that he thinks he told Thomas of the arrangement which Dennis had made with his attorney, but such testimony is inconsistent and far from being plausible.. Besides, it is contrary to the whole tenor and effect of the testimony given by Thomas. According to his testimony, there was not a word said to him about contesting, nor that there was any plan to contest it. Tie also testified to the effect that the defendant intimated that the property did not amount to much,— that a good deal of it was given to the authorities for a park. Under such circumstances, Thomas, through his sister’s husband and Dennis, accepted the proposition so made to him by the defendant nearly four months previously; and thereupon the defendant wrote Thomas, under date of August 7,18S9, to the effect that he would make out and forward papers for his signature, and pay the consideration upon delivery of the deed to'the bank; that matters stood the same as when he was in New York; that little could be done unless all joined in a determined effort to secure their rights; and stating in a postscript, among other things, “I enclose in deed all property filed in probate office, though the better part has unquestionably been sold and condemned.” On cross-examination, the defendant quibbled about this statement, but virtually conceded that it was false as written. This false statement in the letter corroborates the testimony of Thoma,s as to the conversation between him and the defendant. It is very important whether Thomas was induced to make the sale upon the representation that “ the better part ” of the lands had been “sold and condemned,” or that only “part” of the lands had been “sold and condemned.” It appears that the defendant put in evidence a supposed copy of the letter in which the words “the better,” in italics, were omitted, and that subsequently the plaintiff put in evidence the original letter; and that it was thereupon “agreed by the parties that the original letter to Thomas Dean, dated August 7,1889, should be substituted for the copy.” Nevertheless, the learned trial court, by some inadvertence, appears to have overlooked the fact, and so finds that the cop}'' was the letter sent.

Such is a general outline of the leading facts in evidence. We refrain from going into details, but are all constrained to believe that Thomas was induced to make the conveyance by the concealment, deceit, and misrepresentation of the defendant and those acting in conjunction with him. This is the only question calling for consideration in the case. •

By the Court.— The judgment of the circuit court is reversed,- and the cause is remanded with direction to enter judgment according to the prayer of the complaint.

A motion for a rehearing was denied December 11,1891.