Will of Mangan

— 338 — The following opinion was filed October 14, 1924: Crownhart, J. The appellant Congregation of St. Agnes1 claims that the court erred in failing to find that it had complied with the fourth paragraph of the will of the testatrix, which reads as follows: “Fourth. All the rest, residue, and remainder of my estate, real, personal, and mixed, I give, devise, and bequeath to whomsoever will take care of me and provide for me during the balance of my natural life. Said care and provision must be in a kindly, courteous, friendly, and charitable manner and must include all charges for all services necessary for my complete comfort and support.” The facts upon which the appellant relies are not in substantial dispute. It is uncontroverted that the testatrix had sought admission into the Henry Boyle Home for the Catholic Aged and had been refused by the sisters in charge; that thereafter Margaret Mangan and her sister interceded with Mrs. Boyle, the widow of the donor of the Home, who helped to get Mrs. Mangan in the Home. Mrs. Boyle and Margaret went to the Home and secured the admission of Mrs. Mangan thereto. There was no condition attached to the admission. Margaret did not agree to pay anything for the support of Mrs. Mangan or in any way bind herself for such support; neither was Mrs, Mangan obligated to pay. The Home was a charitable institution and Mrs. Man-gan was accepted as a charitable inmate. Mrs. Mangan went to the Home on the 1st of August, 1916, and remained there continuously except for a period from February 28 to June 13, 1919, during which time the Home had to undergo repairs owing to a fire which had occurred there. At that time she was taken into a “Protestant Home,” and it does not appear that any expense was attached thereto. As soon as the Boyle Home was repaired she returned and remained there until her death, except for a week or só in the March preceding, when she was at the St. Agnes Hospital, also — 339 — operated by the Congregation of St Agnes. During the time she was in the Home she contributed $18 a month until May, 1917; then $20 a month until March, 1918, and thereafter $25 a month until her death. The Congregation made no demands upon her for payment for board and room or otherwise, but Mrs. Mangan, upon receiving her pension vouchers, delivered them to one of the sisters to be cashed, and upon the return of the money to her she voluntarily contributed the sums mentioned. While she was at the hospital the hospital authorities, according to custom, made the usual charges on the books but made no demand upon Mrs. Mangan for payment and rendered her no bill. However, the stepdaughter, Margaret Mangan, asked for the bill and voluntarily paid it. For eight days prior to her death the doctor in charge had a special nurse to assist the sisters in the care of Mrs, Mangan, who required constant attention. The bill therefor, amounting to $28, was voluntarily paid by Margaret after, the death of Mrs. Mangan; likewise the doctor who attended Mrs. Mangan during her last illness was paid by Margaret. It appears that Mrs. Mangan had asked the doctor for a bill and had told him that Margaret should have some of Mrs. Mangan’s money to pay the bill. The Congregation furnished Mrs. Mangan with every reasonable comfort, and the sisters in charge were kindly, courteous, friendly, and charitable to her. When ill she had the special attention of one of the sisters who was a trained nurse. It does not appear that any request that she ever made was denied by the sisters. She expressed herself as being well pleased with her care on several occasions, and particularly shortly before her death. The Congregation was and is a charitable corporation, and in its operation of the Henry Boyle Home it received aged Catholic people without regard to their ability to pay. The Home was not operated for profit but as a charitable institution. The sisters who performed the services received no remuneration except their board, lodging, and clothing. It — 340 — is a fair inference from the evidence that Mrs. Mangan would have received exactly the same care and attention while in the Plome, without making any contribution, as she would have received if she had paid for the services in full. The sisters of the Congregation did not know of the conditions in the will, although they did know that she had a will executed after coming to the Home. The services that the Congregation rendered Mrs. Mangan were in accordance with the express purpose of the Home and in accordance with the religious and charitable purposes of the Congregartion. The contributions made by Mrs. Mangan were inadequate to fully recompense the Home for the services rendered. Mrs. Mangan was nearly blind, infirm, and required a good deal of attention. She had a large room, well and comfortably furnished, and also had the liberties of the house. Her laundry was done by the ITome without charge. Margaret, when she visited Mrs. Mangan, frequently had meals at the ITome, for. which the sisters would accept no pay. The extra nurse, during testatrix’s last illness, boarded at the ITome, for which the sisters refused pay. It is not too much to say that to all intents and purposes, after the will was made, the Congregation did care and provide for Mrs. Mangan during the period of her natural life in the manner provided in the will, nor is there any question but that she received “kindly, courteous, friendly, and charitable” treatment and that such treatment included all charges for all services necessary for. her complete comfort and support, so far as said charges were presented or made known to the sisterhood. Any payments made by others of charges against Mrs. Mangan were purely voluntary; likewise the payments made by Mrs. Mangan to the sisters of the Congregation were purely voluntary. No demands were made upon her for payment whatever. If no other evidence or facts are to be considered than those here mentioned, it would seem to be a necessary de — 341 — duction that the Congregation had fully complied with the fourth clause of the will. However, the claim is made that Margaret Mangan complied with such clause in the will and is entitled to the residuary leg-acy thereunder. Except for the testimony of Maurice McKenna, executor of the will and the person who drew the will, it does not appear that Margaret Mangan made any contribution to the support of Mrs. Mangan other than the amounts before specified. It appears that Margaret knew the conditions in the will, and that during the last ten days of Mrs. Mangan’s life she was assiduous in her attentions to Mrs. Mangan; that she did voluntarily pay the hospital bill, the doctor’s bill, and the nurse’s bill, but otherwise Margaret had been away from Fond du Lac and out of the state quite a large portion of the time, and during such times had not given Mrs. Mangan any attention whatever. She had not bound herself to pay for her care and support in the Home, and she did not pay for it. It also appears that Mrs. Mangan had an income, after deducting-contributions to the Home, more than sufficient to take care of her personal wants. She spent almost nothing while in the Home for personal effects or for her comfort. There is no evidence to show that she spent any of her income otherwise. Mrs. Mangan had received $65 about April 5th, the month of her death, which was not accounted for in any manner. Margaret’s claim, therefore, must rest almost entirely on the testimony of Mr. McKenna to a conversation that he had with Mrs. Mangan about the 21st of April, 1921, at the Home, wherein he testified that Ellen Mangan stated to him that Margaret Mangan had paid her altogether $650 in seven different payments, — six of $100 each, and the last one $50 soon after she came from the hospital. Assuming this evidence to be admissible, the facts related seem altogether improbable. Mr. McKenna may have been mistaken in his testimony. The fact is that after Mrs. Mangan’s — 342 — death Margaret assumed control of her personal affairs and took from the room whatever was valuable, and no sum of money is disclosed in the evidence as being found by Margaret. Mrs. Mangan had no need of these payments; she was not known to have had any such sums of money about her; and, on the other hand, she had two bank accounts from which she was drawing interest. If any such sums were paid to her it would be very improbable that she would retain them about her person instead of having them banked or given in charge of the sisters. These sums of money purported to have been paid to her were wholly unaccounted for. Not even a suggestion is made as to what use was made of the money. If Mrs. Mangan did make the statement to Mr. McKenna it must have been in a period of mental aberration. It was after she had returned from the hospital and only nine days before her death. During this time her doctor testified that she was largely mentally incompetent. Her. system was filled with poisons that produced frequent coma and mental stagnation. However, we do not think the testimony of Mr. McKenna was competent. Mr. McKenna had been called to the Home by Margaret, who claimed that Mrs. Mangan wanted to see him with reference to her will. She said over the telephone to Mr. McKenna: “Mrs. Mangan wants you to come down at once and get a taxi and charge it to her.” McKenna had charge of a copy of the will and other papers relating to Mrs. Mangan’s affairs, which he gathered up and took with him to the Home. At the Home he had a conversation with Mrs. Mangan about the disposal of her property, and he gave her. advice with reference to the same. ITe claims that Mrs. Mangan wished to have her will changed, and that he took the matter under consideration over night, but did not report to Mrs. Mangan and made no change in the will. Mr. McKenna was an attorney and had represented Mrs. Mangan theretofore as such. He was her attorney in settling the estate of her husband, Captain Mangan. He had — 343 — not only drawn the will in question, but had drawn two other wills for her. He drew certain papers for her before she went to live with her brother., which required an attorney to draft, and he then gave her confidential legal advice. He seemed to have been her personal and confidential adviser. This court has recently tried to make plain the duties under the statute of an attorney in relation to his client with reference to communications made by his 'client to him in the course of his professional business. The statute reads: “Section 4076. An attorney or counselor at law shall not be allowed to. disclose a communication made by his client to him or his advice given thereon in the course of his professional employment.” The decision in Will of Cramer, 183 Wis. 525, 198 N. W. 386, is consistent with the holdings in numerous cases in this state and elsewhere. In Beilfuss v. Dinnauer, 174 Wis. 507, 183 N. W. 700, this court said: “The purpose of the statute [sec. 4076] is to seal the lips of the attorney as to communications made to him in good faith when seeking his professional advice in any and all matters outside of those which are to aid in a criminal intent or to violate the law. To exclude such evidence so forbidden by the public policy of this state is a rule of judicial propriety.” Mr. McKenna seemed to be of the opinion that because he made no charge and received no pay for this visit to Mrs. Mangan-lie did not represent her as an attorney. The test, however, is not the question of a charge or the payment of a bill. The test is the relation existing between the parties. When a person calls upon an attorney for professional advice with reference to the disposition of his property and such attorney gives advice with reference thereto, unless the contrary clearly appears it will be presumed that the relation of attorney and client existed, and especially will the presumption prevail where an attorney is called who has pre — 344 — viously represented the client in a professional way. An attorney should be zealous to uphold the spirit and purpose of the statute and not seek to evade it. There is another phase of this question involved in the testimony of Mr. McKenna. ITe sought to construe the will by testifying to what Mrs. Mangan told him with reference to her wishes in the matter. Mr. McKenna testified that when he arrived at the Home he said : “ ‘Mrs. Mangan, what do you want ?’ She said: T want to talk about my will.’ I said: ‘Where is that will?’ She had that will herself and I had a copy. She says to Margaret: ‘Get my bag,’ and Margaret started looking for it. She got out of patience and says: 'Margaret, can’t you find that?’ She raised up in bed to step out. She said: ‘Let me get it.’ I said: ‘Wait, there is a lot of time. Let Margaret look.’ Margaret found it and brought it. It was in a black satchel and she handed it across. Mrs. Mangan was lying in bed. Mrs. Mangan had the knobs of the satchel tied together with a string. She sat up and unwound them and handed the bag back to Margaret. ‘Now,’ I said, ‘where is the will?’ Margaret opened it and there was the will, and she took it out. She said something had been said by Miss Dillon or somebody whether certain things were down in black and white; if they weren’t they were no good. I read the whole will and I read this clause slowly. Margaret Man-gan was sitting there. I said: ‘Now, Mrs. Mangan, that fourth clause, who is that?’ She says: ‘That’s Margaret Mangan.’ ‘Now,’ I said, ‘Mrs. Mangan, does that mean the sisters at the Home?’ She said: ‘No, that doesn’t mean the Home. I am paying more a month to these sisters than any one here. I don’t owe them anything.’ Margaret 'took no part in the conversation. I didn’t tell Margaret not to say anything. After she said the sisters were not to have it she said: ‘If there is any doubt about this I want you to write a jvill right now.’ I said: ‘Mrs. Mangan, there’s no hurry about this. This is something that requires a little thought. I think I ought to have a little time to think about it in. Let us wait until tomorrow morning.’ She says: T will not live until morning.’ I said: ‘There’s no immediate danger of your death. Let me think this over until tomorrow morn — 345 — ing.’ ‘No,’ she said, T want you to sit down and do it now.’ I again pressed her that there was time enough until tomorrow morning. ‘No,’ she said a second time, T will not live until morning.’ Then she was so persistent I thought I will write that will. I turned to look' for stationery and a pen and ink and paper and there was none there and I didn’t bring any along and I said: ‘Margaret, you will have to go down to the office and get some stationery,’ and I requested again that Mrs. Mangan let me think it over until tomorrow morning. She said: ‘That’s all right.’ I said: T will come down tomorrow morning or any other time you want me.’ She consented.” After Mr. McKenna left on that day he did not return and did not see Mrs. Mangan again until after her death. He made no change in the will. There can be no reasonable doubt that Mrs. Mangan, in calling Mr. McKenna to the Home to advise with him with reference to her will, and Mr. McKenna in giving advice and taking the matter under consideration, established the relation of attorney and client, so that Mr. McKenna’s mouth was sealed under the sacred obligation of "the statute. The evidence was incompetent on another ground. It is uniformly held that a will cannot be changed by any oral expressions of intent by the testator. It may be in some cases construed by oral testimony of the situation existing at the time the will was drawn, but under no circumstances can a' will be so altered by oral statements as to mean something different than it meant when it was executed. This testimony was clearly inadmissible. Will of Cramer, 183 Wis. 525, 198 N. W. 386; Will of Read, 180 Wis. 497, 193 N. W. 382. Mr. McKenna gave further testimon)*- with reference to the instructions of Mrs. Mangan to him when he drew the will in question. This testimony was inadmissible on the same grounds as the testimony above referred to. Mr. McKenna emphatically denied that he was attorney for the 'testatrix at that time, but his denial means no more than his — 346 — construction of the legal effect of his employment. He said that he was a mere scrivener and not her attorney; that she didn’t need an attorney to draw her will. But Mr. McKenna was mistaken about this. She did need an attorney and a good one. Even so good an attorney as Mr. McKenna was very much puzzled how to draw the fourth clause of the will. The testimony, however, was quite immaterial. It was attempted to show that at that time Mrs. Mangan’s mind had not become settled as to the object of her bounty under the fourth clause. No doubt that was true at the time the will was drawn, but the application of the will had to depend on facts subsequently to be ascertained to identify the beneficiary. That was a proper provision in the will. 40 Cyc. 1446, 1447; Dennis v. Holsapple, 148 Inch 297, 47 N. E. 631; 28 Ruling Case Law, 275. Those facts, as we have seen, satisfactorily show that the appellant Congregcution- of St. Agnes fairly and fully complied with the fourth clause of the will, and that the appellant Margaret Mangan did not so comply. There is a further claim on behalf of the appellant Margaret Mangan that the diamond brooch, diamond earrings, and the bank accounts were given to her by Ellen Mangan prior to Ellen’s death, and that they became and were her property by reason of such gift. We have examined the evidence with care with reference to this phase of the controversy and we find no sufficient evidence that justifies her. contention. To constitute a valid gift causa mortis there must be clearly and intelligently manifested an intention to make a present gift to another, and, in consummation of this intention, a delivery by the donor of the property to or for the use of the intended donee. 12 Ruling Case Law, 957; 28 Corp. Jur. 687; Schultz v. Becker, 131 Wis. 235, 110 N. W. 214. There was no pretense that the earrings were delivered. The only contention as to the gift is with reference to the diamond pin and the bank credits. The contention of Mar — 347 — garet Mangan rests on the testimony of Mr. McKenna. He testified that Mrs. Mangan said: “ ‘Margaret, I want to give you these two bank books and satchel.’ The bank books described in the inventory, one in the First-Fond du Lac National Bank and the other in the Commercial National Bank, the savings department. Margaret took these bank books out. She had her own, another satchel, and she put them in that satchel. Mrs. Mangan said to Margaret: ‘Where is that diamond pin I gave you yesterday?’ Margaret says: ‘It’s here.’ She opened that bag and a little leather pocketbook fastened at the top and took out the pin done up in tissue paper. Mrs. Mangan said: ‘Keep that diamond pin I gave you yesterday. I was intending if you got all in this case in the end I want you to keep the earrings and give the pin to Dolly. I was intending the earrings should go to Mary Hogan but she’s dead. If you get the earrings at the last I want you to keep them and give the pin to Dolly.’ ” Mr. McKenna’s testimony must be interpreted in the light of other circumstances. He testified that Mrs. Mangan followed the foregoing statements by directions to him with reference to drawing another will. In these directions Mrs. Mangan is quoted as saying: “ ‘Kate Dillon, $50. Now, Margaret, I give you these things and will you give Kate Dillon $50.’ Margaret said: ‘I certainly will.’ The next was $500 to Fannie Mangan Kennedy, a trunk and her clothes. ... To Dolly diamond pin, the last item, rest Margaret Mangan.’ ” Mr. McKenna then said: “It was my instructions to draw that will and come down the next morning. After I took this I started and went out, back to the office.” Mr. McKenna did not draw the will as directed. He did not return the next day or at any time thereafter. ' His only explanation for not drawing the will is as follows: “The only reason I had was because she had made these gifts I spoke of, and because I was afraid in my own mind if I drew a will that day it would be contested on the grounds — 348 — of undue influence and on account of the presence of Margaret Mangan. Those were the two reasons that were going through my mind.” It does not appear that Mrs. Mangan ever again referred to the matter, although she lived some eight days thereafter. The testimony of Mr. McKenna is wholly inconsistent with the gift of the pin to Margaret. After the pretended gift Mrs. Mangan is said to have instructed Mr. McKenna to draw her will and bequeath to Dolly the diamond pin. Further, Mr. McKenna, after Mrs. Mangan’s death, demanded and secured from Margaret all the items of pretended gift, and thereupon listed them in the inventory as a part of the estate, and made oath to the same. More than this, Mr. McKenna swore in his petition for final settlement that “he had made careful inquiry and investigation as-to any transfers of property made by said deceased in contemplation of death . . . and that no transfer of property was made by said deceased in contemplation of death.” There is no other testimony showing that Mrs. Mangan made any gifts. There is no clear and intelligent intention shown that Mrs. Mangan delivered the property in question to Margaret with the intention of making a gift causa mor-tis. On the other hand, the testimony is plainly reconciled with the intention of turning the property over to Margaret for safe keeping. Under the circumstances we must hold that the property was merely given into the hands of Margaret as custodian for Mrs. Mangan and that such property is now a part of the estate. It would appear that Mrs. Man-gan’s mind was wandering and she was incapable of making a valid gift or a valid will at the time. All these properties became a part of the estate, to be settled under the terms of the will. It further appears that Mrs. Mangan was the owner of a $1,000 Liberty bond for some time before her death, and that she had it in her possession in her room. The Liberty bond did not come into possession of the executor, and it — 349 — does not appear that the executor made any substantial efforts to find the bond. It has been suggested that the present executor should be removed and another executor appointed with directions to proceed to recover the bond or its value. This matter is not properly before us, and was not litigated or decided in the court below. It may be considered by the county court when the cause is remanded for further proceedings. The further contention is made that the executor made a claim for $650 for attorney fees in the contest before the county judge, and the same was allowed without notice to other contestants. It is the position of the appellant Coru-gregation of St. Agnes that the judgment of the county court allowing such fees should be reopened and the fees disallowed. The record discloses that Mr. McKenna acted as attorney for Margaret Mangan in this contest. This is wholly inconsistent with his duties as executor. No allowance for attorney fees for such services, nor for witness fees in pursuance thereof, can be allowed against the estate. The executor’s duty was to preserve the estate, not waste it. The appeal of the heirs at law was based on the assumption that no one had qualified under the will to receive the residuary estate of the testatrix, and hence the heirs were entitled thereto. The trial court so held. The subject has been sufficiently discussed in this opinion. Their contention cannot prevail. By the Court. — The judgment and order of the county court are reversed, and the cause is remanded to the county court with directions to render judgment in favor of the appellant Congregation of St. Agnes, awarding thereto the residuum of the estate, including the money received by the executor from the banks, the diamond pin, and the diamond earrings; to consider and allow the final account of the executor upon due notice to the other parties in interest, according to this opinion; and, if sufficient showing is made to warrant a hearing, to order and conduct a hearing as to — 350 — the liability of the party, if any, for the Liberty bond or its proceeds, shown to have been in the possession of Ellen Mangan shortly before her death, and enter judgment according to the facts. A motion for a rehearing was denied, with $25 costs, on January 13, 1925.