Opinion
April 12, 1967. —
May 9, 1967.
APPEAL from a judgment of the county court of Milwaukee county: RUDOLPH J. MUDROCH, Judge. Reversed.
For the appellant there was a brief and oral argument by David L. Walther of Milwaukee.
For the respondent there was a brief by E. H. Snyder of Milwaukee for Arvie H. Learman, executor, concurred in by Stewart G. Honeck of Milwaukee, for Arvie H. Learman in his individual capacity, and oral argument by Mr. Snyder.
This is an appeal from a judgment approving the sale of real estate by an executor under a testamentary power of sale to a sister for $12,800. The material facts surrounding the sale of the real estate are set forth in the opinion written when this case was previously considered by this court. Estate of Scheibe (1966), 30 Wis.2d 116, 140 N.W.2d 196. The case was previously before the court on an appeal from an order of the county court approving the accounts of the executor, which accounts included the sale of this real estate. In its opinion, this court stated at page 122:
". . . Since there was no finding as to the fair market value at the time of the sale, we cannot direct that the executor should be surcharged. . . . We believe the trial court should decide after hearing whether the respondent is to be surcharged or whether a suit or proceeding started for setting aside the sale." (Emphasis added.)
The order was reversed and the cause remanded for further proceedings not inconsistent with the opinion.
On April 5, 1966, the Robert Hill Foundation petitioned the county court for the removal of Arvie H. Learman as executor of the estate, and for permission for the successor administrator to commence a suit to set aside the sale of the Astor street property along with other real estate which had been sold by the executor to his sister for less than the appraisal value. At the same time, an affidavit of prejudice was filed against the Honorable RUDOLPH J. MUDROCH under sec. 253.142, Stats., and the matter was assigned to the Honorable DAVID H. SEBORA for trial. The executor then filed an affidavit of prejudice against Judge SEBORA, and the matter was reassigned to the Honorable CHARLES L. LARSON.
After the affidavit of prejudice had been filed against the Honorable RUDOLPH J. MUDROCH, the executor, Arvie H. Learman, moved the county court, Judge MUDROCH presiding, for an order entering the following finding of fact:
"That the fair market value of the real estate situated at 1663 North Astor Street, Milwaukee, Wisconsin, at the time of sale on the 22nd day of November 1963 was $12,800.00."
Judge MUDROCH denied this motion.
On June 24, 1966, the executor again moved the court for an order containing a finding that the fair market value of the subject property as of November 22, 1963, was $12,800. Judge MUDROCH granted this motion and made a finding that the fair market value on that date was $12,800. Prior to the formal entry of findings of fact and conclusions of law by the trial judge, the appellant applied for a writ of prohibition, which was denied on August 19, 1966.
The trial court then entered judgment dated October 10, 1966, which provided:
1. The Robert Hill Foundation and the First Baptist Church have suffered no damage by reason of the sale of such premises at fair market value.
2. The sale of such premises by A. H. Learman, executor, to Grace Musgrave on November 22, 1963, for the sum of $12,800 is approved. The objection to the validity of the sale is overruled and dismissed on the merits.
The Robert Hill Foundation appeals from this judgment.
There are four issues raised on this appeal:
1. Did the county court follow the mandate of the supreme court in its conclusions of law and judgment?
2. Should the judgment be reversed in the interests of justice?
3. Was the finding of the market value of the real estate of $12,800 against the great weight and clear preponderance of the evidence?
4. Was it proper for the county judge to reject the affidavit of prejudice?
In its original opinion, this court specifically stated that the question before the court did not resolve itself on whether or not the executor acted in good faith and was honest as to the manner in which he handled the sale of the real estate. The real question is whether or not the executor fulfilled his duties as a fiduciary while acting in his capacity as such. The opinion correctly stated that good faith alone in the performance of the duties of a fiduciary is not sufficient. Estate of Martin (1963), 21 Wis.2d 334, 341, 124 N.W.2d 297. The grant of the power of sale to the executor imposed upon him a special confidence, a discretion coupled with a trust to be exercised solely for the benefit of the cestuis que trust. Scheibe, supra. The Scheibe decision cites considerable authority as to the duties of a person occupying a position of trust such as an executor. All of the authority holds executors to the duty of exercising such diligence and caution as a careful and prudent owner would observe in the sale of his own property.
The record now before the court as to the facts and circumstances surrounding the sale of the real estate is the same as on the original appeal. No further evidentiary hearing was held. The entire emphasis of the first opinion reflects a considerable doubt as to whether the executor acted as a reasonable and prudent man with loyalty to the beneficiaries. The salient facts are contained in the first opinion. However, in the absence of a finding as to fair market value, the county court was directed to decide after a hearing whether the respondent was to be surcharged or whether a suit or proceedings started for setting aside the sale.
The county court so interpreted the mandate of this court as to require no further evidentiary hearing, but rather on the basis of the record then before it determined that the appellant had suffered no damage by reason of the sale of the premises at fair market value and approved the sale to Grace Musgrave, sister of the executor, in the amount of $12,800.
While it may be argued that the trial court followed the literal wording of the direction of the remand, we conclude that it did not so follow the direction and intent of the court as manifest in the opinion when considered in its entirety.
We find and so conclude that the interests of justice require that the judgment be reversed. See sec. 251.09, Stats.
"`This court will not exercise this discretion unless it is convinced that there has been a probable miscarriage of justice — viewing the case as a whole.' Chapnitsky v. McClone (1963), 20 Wis.2d 453, 467, 122 N.W.2d 400."
Wanserski v. State Farm Mut. Automobile Ins. Co. (1964), 23 Wis.2d 368, 378, 127 N.W.2d 264, and Chapnitsky v. McClone (1963), 20 Wis.2d 453, 467, 122 N.W.2d 400, and cases cited.
Having arrived at the foregoing decision, we do not decide whether or not the findings of the county court were against the great weight and clear preponderance of the evidence.
Effect of Affidavit of Prejudice.
In its original decision, this court stated "we believe the trial court should decide after hearing whether the respondent is to be surcharged or whether a suit or proceeding started for setting aside the sale." Scheibe, supra. The order was reversed and the cause remanded for further proceedings not inconsistent with the opinion.
This direction required a further hearing before the county judge, although he apparently interpreted this to mean that he could make his findings upon the record as it was then before him, and he did so. Upon remand, Judge MUDROCH disregarded the affidavit of prejudice filed against him under sec. 253.142, Stats., and the appellant now contends that the filing of the affidavit deprived him of jurisdiction to make the findings in question here.
This fact situation appears never to have arisen under sec. 253.142, Stats., or its predecessors. However, following the theory laid down in Luedtke v. Luedtke (1966), 29 Wis.2d 567, 139 N.W.2d 553, which case considered an affidavit of prejudice under sec. 261.08 (1) as relating to divorce actions and especially in light of the concurring opinion therein, we find that the county judge was correct in retaining jurisdiction for the purpose of determining fair market value and any subsequent proceedings which might have been necessary and not inconsistent therewith.
The appellant attempts to avoid the language of the Luedtke decision by arguing that the finding of fact of a fair market value and the determination of such surcharge, if any, was a new matter to be dealt with in a new proceeding. The decision in Scheibe, supra, clearly indicates that the remand was not made for the purposes of constituting a new proceeding but on the contrary, very much a part of and related to the proceedings which presently brings this matter before the court. Hence the trial court's refusal to honor the affidavit of prejudice was proper.
By the Court. — Judgment reversed.