*1 order, We are with the opinion together visitation, reservation must be concerning rights upheld. affirmed, By the Court.—Order cause remanded trial court for further and proper proceedings.

Holty, others, vs. Landauer Appellant, Respondents.* 1, 1955.

May 3—June * denied, costs, rehearing Motion September 13, *2 For the there briefs Hirsch- by Whyte, appellant Minahan, boeck & and Victor M. and attorneys, Harding counsel, Milwaukee, Richard P. Buellesbach all of and Mr. oral argument by Harding. Fairchild,

For the a brief there was Foley respondents Sammond, Klitsner, McComas, E. & Marvin and Harrold J. Milwaukee, all and oral Klitsner Mr. argument by Mr. McComas. Landauer, grandfather plain- Adolph MaRtin, J. Landauer, deceased, A.

tiff and father of Joseph operated aas sole under business proprietorship wholesale dry-goods He name Son. also several of A. Landauer & operated stores, the Fair Fair retail Stores including Company Wausau, Wisconsin corporations, Appliance Company, Wisconsin. Landauer died his will Adolph for the establishment and maintenance of a trust provided which, lifetime from the income of widow’s during among *3 the other should receive things, plaintiff monthly. $250 was Landauer one of the At trustees. the Joseph appointed 1935, death widow a for his plaintiff signed receipt share of the distributable trust estate and the trust was duly terminated. this time the Landauer business

During were enterprises on. the trust carried When was terminated the of the Fair of Wausau was divided Company between equally Jo- and A. Landauer seph plaintiff, directed in the Adolph will, a and Landauer certificate 232 was shares issued 14, as of to the plaintiff January 1935.

A. Landauer Son was & incorporated in 1937 and there- after the retail stores. A operated certificate for 536 shares new of stock corporation issued to De- plaintiff 2, cember

After the incorporation 1937 the plaintiff, who resided York, in New received monthly payments the Fair through and Store Wausau from 1943, May, on, A. through Son, 8, Inc. Landauer & On 1942, May Joseph Landauer wrote to as follows:

“The set I believe up books were at the end of 1937 or 1938, at the first which time part you had credit of time since that ever $53,600. Your withdrawals monthly total, a balance $25,474.53, leaving month or $450 of $28,125.47. preferred this stock, $5,000, of which you “On . . . intact. remains still credit have standing your you . . in total dollars “So see that . can readily time, you $33,125.47. this credit, namely your that you money amount of total $33,125, monthly to draw if continue $475 you $450 a little maybe six years, last approximately will you same .” . . or more. less an showed the books of company of January,

As $29,320.53. May On from the plaintiff indebtedness $29,000 credited with account was 1943, plaintiff’s stubs bear- and stock-certificate $53,600) total of $24,600 (a of 246 shares to Joseph issuance show the same date ing Son, Inc. (a to A. & 290 shares A. Landauer of 536 shares). total a will Landauer made provid-

On April out of his entire holdings of a trust for the establishment ing for fifteen years to continue in the Landauer corporation month to death, per the income payable after his $500 cousin, Landauer, month to a widow, per Frances O. $75 It was also provided month to plaintiff. per income the balance of distribution of of the annual cent in cent cash and receive 10 per was to per and at the end of the fifteen years of the trust for the life income such accumulations of trust was to receive *4 cent the trust as 45 principal. as well per 1949, 29, a new Landauer made Joseph On September half of his that his widow should receive one will providing the balance of the Landauer entire estate and corporation for fifteen the income years, to be left pay- stock was widow, month her able month to per per $100 $750 mother, month to The balance of the and per plaintiff. to the widow and at the income was to be end paid of the trust was dis- the entire principal fifteen-year period to her. tributable stock

It is on May undisputed and the Plain- was transferred to Joseph company. transfer sole basis tiff contends that he on the agreed a contract between Landauer and himself (Exhibit commitment” is contained 35). “testamentary alleged undated, in an document as follows: unsigned reading $53,600.00 “You had originally. 1, 29,320.53 “You have drawn up Jan. balance $24,279.47 “Leaving 5,000.00 “You also have stock. pfd. “$29,279.47 $53,600.00 “You were credited one divi- ] 3% $1,638.00 dend ’37 of ] “I shall over of 3 you period try give years, starting $1,600.00 $8,000.00 is about per year, —which for 5 years 1938-39-40-41-and 42. starting Will equivalent start $3,000.00. first this with the This is lieu of year no dividends. out a

“Rather than new certificate making every year two, account at A. L. will & S. read as of your January 1943, $24,279.47 $3,000.00 $27,279.47. plus — shares of above stock

“The equals plus $79.42. fact, are not aware of but our losses in “You closing $21,000.00 at a loss at Sturgeon out Waupaca Bay $54,000.00 in totaled 1940-41. $33,000.00 loss of that our common I was advised “While should not share, I am per at over be valued at crediting you $80.00 share, didn’t have to per you sustain par $100.00 of the two stores. the closing losses S., leave at A. L. your money & you “As be long you’ll rate of After earth, at the I leave credited yearly .this 3%. for 15 about, monthly years; plus can draw after you $400.00 *5 208

the years' accounted, businesses have been sum approxi- $2,000 $2,500 mately to for 15 and also a like amount years, $2,000 $2,500 will be credited to account your 15 period years. “These in total should figures account each give your year

for 15 all $9,000 $9,500. about years these Naturally, figures on depend thrive; how well the businesses nevertheless are fair. figured “After 15 when the trust years expires, receive you’ll ” ‘plenty.’ is a carbon of Exhibit

Exhibit 7 35 with the copy portion earth, etc.,” I “After leave this in the beginning third para- from the end removed. Exhibit 7 was graph given by Land- Hoffman, the auer Miss company who bookkeeper, kept init and credited account with ledger plaintiff’s the sums dividends,” “in lieu of therein mentioned which sums were Landauer Miss against Joseph personally. Hoffman charged remember she could not when first saw it but the fact that of $3,000 the first mentioned in the document gratuity 31, 1943, in the as of entered December ledger makes it reasonable to conclude that she only received it sometime in That the document was considered Land- by Joseph as a memorandum auer bookkeeping necessary maintain account is from evident the fact that it was plaintiff’s given Huffman and to Miss clipped sheet as a ledger part records. company It is contention that the Exhibit portion was removed from Exhibit which 7 before Miss Hoffman contains the received it testamentary agreement which upon relies. trial court found: a notation containing “5. Exhibit respect intentions, was testamentary Landauer’s A. delivered Joseph to Carl lifetime; A. Landauer’s it during Joseph is not Holty memorandum was that said delivered by established received Carl the time of Holty or A. shares or about Holty May purchase *6 that it was related to said in so any way purchase except far of it . summarized the results thereof. . . part intention nor testamentary statement of “9. Neither said 1943, 24, constituted A. Landauer will of April the Joseph for the sale or of the consideration purchase of any part stock, of there was no consideration shares plaintiff’s intention or will.” statement of for said In are the evidence. entirely supported by These findings 199, 203, 246 Wis. 16 N. W. (2d) West (1944), Will of 806, was stated: it that succeed we must first find

“In order appellant to devise bequeath an oral contract property. there was contract must be established evidence by that such rule is The Mere clear, satisfactory, convincing. preponder- is that not such contract. [Citing will support the evidence of ance rule.” . . . recognize We cases.] that as as 1939 shows early evidence consultants, informed, that was over- Landauer’s tax in the event of his death such and that his account drawing could, estate; his that he be a charge against would drawings back desired, some the advances by turning reduce if he however, Plaintiff, not contends that it was until stock. his Landauer, 8, 1942, letter from May Joseph of the receipt above, that he knew he was liv- are set out of which portions his wife testified that the Land- He and his capital. ing York in the fall 1942 and them New s visited auer then that transfer suggested Joseph his indebtedness that company; to liquidate of another visit in the on the occasion spring thereafter is to him the document which Landauer presented 35. Exhibit asserts latter visit took place

Although 1, 1943, 24th April prior making April about will, on the witness stand that he he admitted could have either before or after the document April received that she no wife testified recollection when the Plaintiff’s incident took other than to her place, statement that it was in This 1943.” is far from clear “spring will, evidence that the document convincing predated especially view of the of Frances O. Landauer testimony to the effect that from the middle of March until the middle her Southwest; she and husband were in the April, did not York they go New until the end of April.

Under evidence it was for the trial court to necessary conclude that Exhibit 35 not did predate April Thus, will. merit any possible plaintiff’s principal argu- ment that the forth document set contract testamentary to which pursuant Landauer made said will is *7 vitiated; and the reasonable only inference that can be drawn from the document is that it was a statement of the voluntary provisions Landauer made for already 24th will. It is read April to into impossible the language of the exhibit itself any intentions which are testamentary contractual nature. There is no suggestion therein that such intentions were in consideration expressed of plaintiff’s his to sell stock. And the agreement evidence indicates that did not himself consider them in that In a let- light. ter dated August reminded plaintiff that not indorsed the he had certificates which were canceled in 1943; advised that intended to amake new will and “Be- rewrite that will I fore I insist on whether or knowing not to with you propose comply my request sign certificate.” Plaintiff thereafter signed returned the in- with a letter dorsement stating: will that at no “You admit time I have ever broached to testament, of your will and you ever asked question no more than I father, my my grandfather, grandmother about I have felt that if things. always such anyone involved is to matters, it mention such is the person who is going leave estate, not an one who of it. hopes partake IWhat know me, but I regret told intentions yourself of your you testament to of your the question that brought up you deeply threat.” an unbecoming use as claims contrary is entirely an attitude

Such them. between a contract constituted that Exhibit 35 trans- that he had acknowledged In the same letter plaintiff and to the his uncle of stock to his shares ferred and sold that time at been 1943; requested that he had company indebtedness to company, of his make full payment It is estab- his stock. not by selling he could do except which for received that the price plaintiff without question lished share; amount due him that that the stock was per $100 com- account with the Landauer to his was credited price withdrawals he had reason of his monthly and that by pany November, There was the entire amount by received that the trial court could find from which testimony expert much less than the the stock 1943 was actually the value of not chal- therefor and does the plaintiff price paid In our has offered no opinion plaintiff finding. lenge clear, con- evidence convincing satisfactory, sideration, share, than the was the basis other per the stock. his transfer of the trial court in out his error to ruling

Plaintiff assigns 325.16, Stats., sec. with to his “con- under testimony, respect Landauer at the time he came into possession versation” *8 As abstracted the the Exhibit 35. by plaintiff, testimony follows: in reads as question Mrs. at the Mr. and Landauer Bilt- came to visit “I York about 1943. I had come April in New Hotel

more me there. Mr. and Mrs. join wife was and my work from Mrs. had come in Holty me and about had greeted Landauer took over to later. Mr. Landauer me window minutes ten and said I out of his ‘Here.’ pocket this paper took head, and shook hands with him. nodded by the paper, read I in all the He stood there the time put my pocket. paper I was it. had in and just while wife come was reading My off her coat and was Mrs. who greeting was taking a drink for in the They us. same room.” getting cannot see that such out testimony We but brings anything that document was handed to Landauer. plaintiff by wife, Plaintiff’s whose its en- admitted testimony room stated that she was when the incident tirety, occurred and saw Landauer her husband. give paper her has the same Since testimony import it plaintiff’s, be said that the cannot exclusion the same evidence by would effect court’s decision. plaintiff if it be assumed that rejection Even such of evidence was error, it could not have been Will Ehlke prejudicial. 246 Wis. 18 N. W. (1945), (2d) of the record

A reveals that not study has only clear, failed present satisfactory, convincing proofs claim, but evidence of his presented, largely documentary character, is overwhelmingly support the trial court’s deal more Although great evidence be findings. could specif- to, referred it would serve no than ically other purpose un- this extend necessarily We have opinion. set out such as in our show that the portions opinion are findings amply supported.

As an alternative specific performance alleged contract, seeks rescission of the stock transfer on of breach of ground fiduciary him obligation owed by Landauer. trial court found that no fiduciary existed between relationship Landauer and the ex- director and cept corporate stockholder. Plaintiff asserts securities to which he was out entitled of his estate, of which grandfather’s Joseph Landauer was trustees, one of were never delivered to him but retained Landauer; that in holding plaintiff’s benefit securities *9 n assets, the former fiduciary relationship been trust that had however, testified, he no claim that made Plaintiff

continued. the to which he was entitled not receive all assets that he did trust, it is that he and undisputed under his grandfather’s share at time the for his distributable the executed receipt Landauer was discharged terminated and Joseph was is no basis for the circumstances there as trustee. Under there- the continued' fiduciary that relationship considering after. Landauer, as an or director officer Joseph obligation as a the owed the stockholder

of corporation, plaintiff for the stock transfer was disclose all when negotiating the business which affect facts would company’s regarding It is contended of the stock. that Landauer never the price information about the business furnished enable him to form an as intelligent judgment which would stock thus it the of his and that was highly value improper for the Landauer to of negotiate acquisition for the But record discloses that discussed plaintiff freely stock. with his uncle of the business and with Landauer the status York; he occasion to see in whom had New that employees peruse was records that company’s permitted and other information statements he received respecting the status of his his stock and account with the com- value such is not contended that information was It false pany. Furthermore, above, out actual misleading. pointed than the stock lower considerably value received. share which per found, not does question, The trial court sense of honor highest possessed Plaintiff’s insinuation that Landauer .“over- integrity. him in the the sale his stock negotiations reached” arises out of desire to have the value apparently the inflation took light reconsidered place 213a *10 it, after he sold rather than

during years from show- any ing Landauer practiced or fraud. deception Failing such he present takes comfort in that the proof, implying man whose bounty over a took accepted years of period of his business not advantage náivete him by extending in the an purchase even than he greater gratuity did.

Since we hold that no has been es- testamentary agreement tablished and is not entitled to rescission of the trans- fer, it is unnecessary to discuss other raised on questions appeal.

We may say record this case is a voluminous one, both as to evidence, testimony documentary we commend the trial for court its thorough understanding issues, as shown its by well-considered decision.

By the Judgment affirmed. Court.— The opinion 13, was filed following September 1955: motion Per CuRIam rehearing). com- Appellant {on that the decision in plains this case failed to deal with the whether question gratuities received Mrs. Landauer from by the defendant were detrimental corporations to the interests of the other trust beneficiaries. court, referred were gratuities found the trial

after exhaustive evidence on considering be subject, to neither nor excessive. For improper some years prior had, decedent’s death Mrs. Landauer without compensation, assisted her husband in the management the businesses and after his death she continued to in such participate man- likewise without agement, The trial compensation. court found that her services were and valuable and that competent justified gratuities in lieu of entirely any widow’s allowance for said compensation services. Under all the circumstances we find no error in the trial court’s determina-

213b in the record tion of the All the evidence question. competent it it and failed to show reason why supports appellant not been made. should of this court in Estate language

Appellant points 456, N. 59 W. (2d) Wis. (1953), effect that if Mrs. Landauer per- any advantages gained by were detri- sonally receiving gratuities question trust, set out mental to other beneficiaries of the the rules 541, 250 N. in Estate 218 Wis. W. Peabody (1935), 248, 52 N. Estate Teasdale 261 Wis. W. (1952), *11 however, There can be is no applied. showing, (2d) tax of said which constituted ad- gratuities, payment Landauer, ef- Mrs. had detrimental for actually vantages interest in the estate. In the first fect on place, appellant’s must be to be and the trial court held proper; payments its decrease ex- out in decision any earnings pointed and 1952 were the Landauer companies perienced out of market conditions arising general changes. due to many Further, shows that the income the evidence would been in which the made the years gratuities made, insufficient, if not been bene- even they pay claims under the will interest prior ficiaries having Neither in his main thereunder of the appellant. or right brief, motion, this has brief in appellant nor support based on evidence to the trial contrary arguments presented court’s findings. is denied with costs. motion rehearing