Opinion
November 8, 1957 —
December 3, 1957.
APPEAL from a judgment and order of the county court of Waupaca county: A. M. SCHELLER, Judge. Affirmed.
For the appellant there was a brief by Konnak Constantine of Racine, and oral argument by Charles M. Constantine.
For the respondents there was a brief by the Attorney General and E. Weston Wood, assistant attorney general, for the state of Wisconsin and the State Department of Veterans Affairs, and by Edward J. Hart of Waupaca, for G. H. Stordock, and oral argument by Mr. Hart and Mr. Wood.
Proceeding to propound an instrument executed by the decedent Claud H. Bowman, deceased, under date of August 18, 1953, as his last will and testament.
The decedent was a Spanish-American War veteran, seventy-seven years of age on the day he executed such will. By the terms of such will he left his estate in equal shares to Wilma Witek and James Witek, her husband, and nominated Wilma Witek as executrix. Neither of the Witeks was a legal dependent of the decedent.
On the day following the execution of the will he made application for admission to the Grand Army Home for Veterans at King, Wisconsin, which is operated by the state of Wisconsin, and was admitted thereto on August 25, 1953. On September 23, 1953, the decedent was discharged from the Home in order that he might be hospitalized at the Veterans Administration Hospital at Wood, Wisconsin, which is operated by the federal government. On November 18, 1953, he left such Veterans Administration Hospital and applied for readmission to the Grand Army Home and was readmitted thereto. He continued to reside in said Grand Army Home until his death on March 28, 1955.
The decedent left no real estate but did leave personal property amounting to $2,219.57. His estate consisted primarily of the proceeds of insurance policies and United States Series E bonds in which his brother, Oofty Goofty Bowman, had been designated as beneficiary. However, said Oofty Goofty Bowman predeceased decedent so that the proceeds of such insurance policies and Series E bonds were, at the time of the decedent's death, payable to his estate.
On April 6, 1955, Wilma Witek filed decedent's will in the county court of Racine county, accompanied by her petition propounding such will to probate. The state of Wisconsin and the Wisconsin State Department of Veterans Affairs appeared and objected to the jurisdiction of the Racine county court and also to the admission to probate of the will on the ground that it was invalid under sec. 45.37 (3) (a), Stats. 1953. The Racine county court determined only that the decedent had died a resident of Waupaca county and ordered the proceedings transferred to the Waupaca county court.
In the Waupaca county court, the state and the Wisconsin Department of Veterans Affairs renewed their objection to the admission to probate of said will, relying again upon sec. 45.37 (3) (a), Stats. G. H. Stordock, commandant of the Grand Army Home, also appeared by counsel and objected to the probate of said will upon the same ground. Mrs. Witek appeared in said court and contended that said provision of the statutes is unconstitutional and that the will of the decedent ought to be admitted to probate. After hearing proof, and upon consideration of oral argument and written briefs, the court determined in a written memorandum decision that sec. 45.37 (3) (a) is constitutional and that the instrument executed by the decedent on August 18, 1953, should be denied probate.
Judgment was entered under date of May 15, 1957, denying probate to the propounded will, and on May 21, 1957, an order was entered directing the issuance of letters of administration to G. H. Stordock. The proponent Wilma Witek has appealed both from said judgment and said order.
The salient facts of this case are that the deceased died testate leaving no legal dependents surviving at a time when he was a resident of the Grand Army Home for Veterans. Sec. 45.37, Stats., sets forth the conditions pursuant to which eligible veterans are accepted into membership in such Home so as to entitle them to enjoy the facilities thereof. Sub. (3) (a) of such statute, as it appeared in the 1953 statutes, read as follows:
"If any member of the Home shall die without legal dependents, his real property shall descend and his personal property shall be distributed to the state of Wisconsin as sole heir for the sole use and benefit of the Home, and no will, previously or hereafter drawn, making a contrary disposal shall be valid. A wife or mother residing at the Home shall be included among and considered as a legal dependent for the purpose of this subsection."
Counsel for the appellant proponent contend that such statute is unconstitutional in that it abrogates inherent testamentary rights and creates arbitrary and unreasonable discrimination among persons of the same class. It is elementary that a court ordinarily will not pass upon the constitutionality of a statute in a situation in which the case before it may be decided upon another ground. In the instant case the appeal may be disposed of without the necessity of directly passing on the issue of constitutionality. This is because the decedent accepted the benefits conferred by sec. 45.37, Stats. 1953, and he, and those who claim through him under his will, are thereby precluded by waiver from questioning the constitutionality of sub. (3) (a) thereof.
In Booth Fisheries Co. v. Industrial Comm. (1924), 185 Wis. 127, 132, 133, 200 N.W. 775, Mr. Justice OWEN, speaking for the court, declared:
"It is well settled that constitutional rights, as well as any other personal or property right, may be waived. Oborn v. State, 143 Wis. 249, 126 N.W. 737; Finsky v. State, 176 Wis. 481, 187 N.W. 201; Silber v. Bloodgood, 177 Wis. 608, 188 N.W. 84. . . . It is also well settled that one may not enjoy the benefits and privileges of a statute and, after so doing, escape its burdens by asserting its unconstitutionality. Daniels v. Tearney, 102 U.S. 415; Grand Rapids I. R. Co. v. Osborn, 193 U.S. 17, 24 Sup. Ct. 310; U.S. v. Thomas, 195 U.S. 418, 25 Sup. Ct. 102; Pera v. Shorewood, 176 Wis. 261, 186 N.W. 623; 6 Ruling Case Law, 94."
Recent cases applying the afore-quoted principle of waiver enunciated in the Booth Fisheries Co. Case, supra, are Zweig v. Industrial Comm. (1955), 269 Wis. 324, 69 N.W.2d 440, and Speelmon Elevated Tank Service v. Industrial Comm., ante, p. 181, 85 N.W.2d 834.
Counsel for the appellant seek to avoid the application of the rule of the Booth Fisheries Co. Case by contending that the facts of the instant case bring it within the exception to such rule recognized by this court in Wendlandt v. Industrial Comm. (1949), 256 Wis. 62, 39 N.W.2d 854, and Yorkville v. Fonk (1956), 274 Wis. 153, 79 N.W.2d 666.
This court in the case of Speelmon Elevated Tank Service v. Industrial Comm., supra, held that the holding in the Wendlandt Case really provided no exception to the general rule that one, who accepts benefits under a statute, may not question its constitutionality. This is because the employer, who there raised the question of constitutionality, had not' proceeded under the challenged statute in so far as the claimant employee was concerned.
In Yorkville v. Fonk, supra, the defendants had applied for a license to operate a trailer camp from the plaintiff town pursuant to a town ordinance which licensed such camps. When prosecuted for a violation of such ordinance, the defendants defended on the ground that the particular ordinance clause which had been violated was unconstitutional. The issue on appeal was whether the defendants, by applying for and securing the license under the ordinance, had thereby waived any right to challenge the constitutionality of such ordinance. This court held that, because the ordinance contained a severability clause and the defendants had received no benefits under the clause attacked, there was no waiver.
In the instant case, sec. 45.37, Stats. 1953, contains no severability clause. However, we prefer not to distinguish the Yorkville Case on this narrow ground but rather on the ground that it involved a license. As Mr. Justice HOLMES pointed out in Union Pacific R. R. Co. v. Public Service Comm. (1918), 248 U.S. 67, 39 Sup. Ct. 24, 63 L.Ed. 131, there is an element of duress present, in a situation when a licensee challenges the constitutionality of the statute under which the license was granted to such licensee, that prevents the application of the doctrine of waiver. This is because the penalty for proceeding without a license may be greater than the burden imposed by the challenged portion of the licensing statute.
The distinction between cases involving licensing statutes, and the one before us on this appeal, is that in the former a person is prevented from doing what he otherwise would have a legal right to do until he procures a license. In other words, a licensing statute does not grant to the licensee any rights which he did not possess prior to the enactment of such statute. For example, but for the ordinance, the defendants in the Yorkville Case would have had the right to establish and operate a trailer camp containing whatever number of trailers they deemed advisable. However, in the absence of sec. 45.37, Stats. 1953, the decedent in the instant case possessed no right to become a member of the Grand Army Home for Veterans and enjoy its privileges.
It is, therefore, our considered judgment that the instant case is governed by the rule of the Booth Fisheries Co. Case, and not by the exception to that rule recognized in license cases such as Yorkville v. Fonk.
By the Court. — Judgment and order affirmed.