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COURT OF APPEALS
DECISION
DATED AND RELEASED
June 26, 1996
NOTICE
A party may file with the Supreme Court                                               This opinion is subject to further editing.
a petition to review an adverse decision                                              If  published,  the  official  version  will
by the Court of Appeals.  See § 808.10 and                                            appear  in  the  bound  volume  of  the
RULE 809.62, STATS.                                                                   Official Reports.
No.   94-3316
STATE OF WISCONSIN                                                                    IN COURT OF APPEALS
DISTRICT II
In the Matter of the Estate
of Jeffrey M. Bender, Deceased:
LAWSON BENDER, Former Special
Administrator and
Personal Representative,
Appellant,
v.
KARMEN LINDHAL,
Claimant-Respondent.
APPEAL  from  a  judgment  of  the  circuit  court  for  Walworth
County:    RICHARD  G.  HARVEY,  JR.,  Reserve  Judge.    Reversed  and  cause
remanded.
Before Brown, Nettesheim and Snyder, JJ.
PER CURIAM.    Lawson Bender (Lawson), the decedent's brother
and former special administrator of the Estate of Jeffrey M. Bender, appeals
from  a  judgment  admitting  into  probate  a  will  of  Jeffrey  M.  Bender  (the




No.   94-3316
decedent) naming Karmen Lindhal as his sole beneficiary, allowing Lindhal to
file an amended claim against the estate, voiding a quitclaim deed executed by
Lindhal with regard to the single-family residence she formerly shared with the
decedent, and terminating Lawson's status as personal representative of the
estate.  We conclude that the decedent died intestate because the will offered by
Lindhal and admitted into probate was invalidly executed and the trial court
erroneously invalidated the quitclaim deed.   Therefore, we reverse and remand
for further proceedings consistent with this opinion.
The decedent and Lindhal began living together in the early 1980s.
They  purchased  a  single-family  residence  in  1988.    The  parties'  romantic
relationship  apparently  ended  in  1992.    In  August  1992,  Lindhal  and  the
decedent gave a second mortgage on the residence to a bank and used the
proceeds to satisfy personal and house-related debts.   On September 2, 1992,
Lindhal quitclaimed her interest in the residence to the decedent.  The decedent
died in an automobile accident on October 1, 1993.   At the decedent's death, his
brother, Lawson, was issued letters of special administration and appointed
personal representative following a contested hearing.
Lindhal filed a claim against the estate in November 1993 alleging
the existence of an oral agreement that she "could continue to reside and have
an ownership interest" in the residence.   She also claimed all personal property
at the residence and a vehicle.   She petitioned for probate of a will drafted by
Attorney  Andrew  Allen  in  1988  which  named  her  as  the  decedent's  sole
beneficiary.1   Lawson challenged the validity of the will under § 853.03, STATS.,
on a number of occasions.    Lindhal contended that the will was properly
executed.
An executed copy of the 1988 will was never located.2   Lindhal, as
the party offering the 1988 document as the decedent's will, had the burden to
prove that the will was valid by a preponderance of the evidence.   See Estate of
Baker, 50 Wis.2d 330, 332 n.1, 184 N.W.2d 72, 73 (1971).   Lindhal presented the
testimony of two individuals, Robert Burnette and Mary Hurdy-Schlehlein,
1   If there was no valid will, Lawson would be the decedent's heir under the rules of intestate
succession.  See §§ 851.09 and 852.01(1)(d), STATS.
2  The will which was the subject of probate proceedings was an unsigned copy from Allen's file.
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No.   94-3316
who testified that in the spring of 1988 they affixed their signatures as witnesses
to a document presented to them by the decedent at the Citizens National Bank
of Lake Geneva where Schlehlein and Burnette were working.   The court found
that the witnessed document was the will drafted by Allen.
The trial court made the following findings of fact regarding the
will offered by Lindhal.   Allen drafted the will at the decedent's request in the
spring of  1988 and asked the decedent to come to his office to discuss and
execute it.   The decedent never returned to Allen's office.   Rather, sometime
during the spring of 1988, he took a document to the Citizens National Bank.
There, Burnette and Schlehlein affixed their signatures to the document as
witnesses.    We recite the following paragraph from the trial court's written
decision:
Burnette testified that he was in part of Schlehlein's office space,
and that decedent, with whom he was acquainted,
arrived in Mary Schlehlein's office.   Mary came into
Burnette's office and asked him if he would witness a
signature.                                                                            Burnette   walked   through   a   small
reception  area,  and  Mary  and  the  decedent  were
there.   The document had been signed by decedent,
so  Burnette  asked  him  if  the  signature  was  his
signature, and he replied "Yes."   Mary had already
signed the document, and since Burnette had seen
her  signature,  as  he  put  it,  "hundreds  of  times,"
Burnette did not ask her if her signature was in fact
hers.    The decedent, Mary, and Burnette were all
standing  together  in  the  same  room  or  space.
Burnette signed below the two signatures already on
the document.
Based upon these facts, the trial court concluded that the will was
properly executed in the presence of two witnesses, Schlehlein and Burnette,
and that their testimony was credible with regard to the execution of the will.
Therefore,  the  court  concluded  that  the                                          1988  will  was  legally  valid  and
governed distribution of the estate.
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No.   94-3316
Where the trial court acts as the finder of fact, its findings will not
be disturbed unless they are clearly erroneous.  See § 805.17(2), STATS.  However,
whether those facts support a legal conclusion that the decedent's will was valid
presents a question of law which we decide independently of the trial court.  See
Estate of Warunek, 159 Wis.2d 129, 132, 463 N.W.2d 866, 867 (Ct. App. 1990).
Execution of wills is governed by § 853.03, STATS.3   Section 853.03
provided that in order to be validly executed, every will must be in writing and
executed with the following formalities:                                                              (1) it must be signed by the testator,
and (2) "it must be signed by 2 or more witnesses in the presence of the testator
and in the presence of each other."  Id.
"[I]t is the policy of courts to sustain a will as legally executed if it
is possible to do so consistent with the requirements of  [§  853.03, STATS.]."
Warunek,  159 Wis.2d at  134,  463 N.W.2d at  868.    Schlehlein and Burnette
testified that the decedent signed the will.   The first requirement is satisfied.
Accordingly, we turn our attention to the second requirement for executing a
valid will:   signature by two or more witnesses in the presence of the testator
and in the presence of each other.
Cases discussing the requirement that a will be executed in the
presence of two witnesses have stated that the concept of presence includes
state of mind and physical proximity.   Estate of Hulett, 6 Wis.2d 20, 26, 94
N.W.2d 127, 130 (1959); see also Estate of Haugk, 91 Wis.2d 196, 206, 280 N.W.2d
684, 689-90 (1979).   The state of mind requirement focuses on "the witnesses'
awareness  that  the  other  witness  is  signing  the  testamentary  document."
Haugk, 91 Wis.2d at 206, 280 N.W.2d at 690.
A person in whose presence an act is done must be informed of
what is taking place so that he actually knows what
is being done; or the act is not done in his presence,
3   We refer to the 1993-94 statutes.  Although § 853.03, STATS., was amended by 1993 Wis. Act
486, the amendments merely made gender-neutral the language appearing in the statute prior to that
date.   No substantive changes were made in the language.   We recite the language from the current
statute.
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No.   94-3316
no matter how close to him it may be done.   A will is
not signed in the presence of one who is attending to
another matter and does not know what is taking
place until he is told later.
Hulett, 6 Wis.2d at 26, 94 N.W.2d at 130 (quoted source omitted).  In Hulett, the
will offered into probate was invalid because, under the facts of the case, "[i]t
was clearly established that when each witness signed the document the other
was totally unaware of the signing ...."  Id. at 26, 94 N.W.2d at 131.
Here, the trial court found that Schlehlein had signed the will as a
witness before she called Burnette into the room to sign as a witness.   Burnette
testified  that  Schlehlein  had  already  affixed  her  signature  by  the  time  he
arrived, but that because he had seen her signature "hundreds of times," he did
not ask her to verify her signature.   These findings are not clearly erroneous
based upon the testimony adduced at trial.   However, they do not substantiate
that  the  witnesses  signed  in  the  presence  of  each  other  as  required  by
§ 853.03(2), STATS.
The facts found by the trial court and the additional testimony of
Burnette4 indicate that Burnette and Schlehlein did not execute the will in each
other's presence because Burnette was not present either physically or by state
of mind when Schlehlein signed.   Burnette testified that the office where he
worked, Schlehlein's office and the conference room or anteroom where the
execution occurred were in close proximity to each other.5   However, he also
testified that at the time Schlehlein interrupted him to ask him to witness a
document, he was "very much involved" in a project for which he was trying to
meet a deadline.   He further described himself as harried and unaware that a
will was being executed in an adjoining room.   He did not pay any attention to
the document he was signing.
4   Burnette's testimony regarding the circumstances under which he witnessed the document was
uncontroverted and the trial court found that his testimony was credible.   Therefore, we consider
that testimony in arriving at our legal conclusion that the will was not validly executed.
5   While much was made at trial of the physical layout of the offices in which the will was
executed, physical proximity is not the only consideration in determining the presence of witnesses.
See Estate of Hulett, 6 Wis.2d 20, 26, 94 N.W.2d 127, 130 (1959).
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No.   94-3316
Accordingly,  the  requirements  of  § 853.03(2),  STATS.,  were  not
satisfied, and the trial court erred in concluding otherwise.   We independently
conclude  that  the  will  offered  by  Lindhal  was  not  validly  executed,  and
therefore the trial court erred in admitting it into probate.
Because the will leaving the decedent's residence to Lindhal is
invalid, this court must review Lindhal's entitlement to the residence by virtue
of the trial court's nullification of the quitclaim deed she executed on September
2, 1992—approximately one year before the decedent's death and several days
after she and the decedent gave a second mortgage on the house to the bank.
The proceeds of the second mortgage were used to pay off Lindhal's and the
decedent's personal obligations and improvements made to the home.
The  court  nullified  the  quitclaim  deed  after  finding  that  the
decedent and Lindhal did not intend for Lindhal to part with her interest in the
property.   Rather, the court considered language in the transfer tax return,6 the
circumstances  surrounding  the  second  mortgage  and  Lindhal's  testimony
regarding the oral agreement with the decedent and found that the parties
intended to shield the property against possible judgment liens arising from
Lindhal's involvement in an Illinois business and to avoid the transfer tax.
Lindhal testified at trial that the decedent "never bought me out,"
notwithstanding that she executed a quitclaim deed.    She testified that the
quitclaim deed was solely intended to remove her name from the property and
that if the decedent died the house would be hers.7  She contended that she paid
$100 per week in cash to the decedent after she moved out of the house at the
end of September 1992 and that this was to be applied to her share of house
expenses.    Lindhal  testified  that  after  she  signed  the  quitclaim  deed,  she
expressed a concern about her future interest in the property should anything
happen to the decedent.   The decedent told her that he had provided for her in
his will.
6                                                                                                        The  transfer  tax  return  stated  that  the  transfer  was  a  "reformation  of  prior  recorded
conveyance."   The trial court speculated that this language evinced Lindhal's intent not to part with
her interest in the property.
7   Lindhal's November 1993 claim against the estate alleged the existence of an oral agreement
with the decedent in which she would own the real estate in the event of his death.
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No.   94-3316
"[The] first step in construction of a deed is to examine what is
written within the four corners of the deed, for this is the primary source of the
intent of the parties.    If the language of the deed is unambiguous, then its
construction, as the construction of other unambiguous instruments, is purely a
question of law for the court, but when there is an ambiguity, the sense in which
the words therein are used presents a question of fact.   Also, where a deed is
susceptible to only one interpretation, extrinsic evidence may not be referred to
in order to show the intent of the parties."   Rikkers v. Ryan, 76 Wis.2d 185, 188,
251 N.W.2d 25, 27 (1977) (citations omitted).   "[P]arol evidence is not admissible
to vary or explain the terms of a deed, and the acts of the parties are not
admissible to show a practical construction where the language of the deed is
neither ambiguous nor indefinite."   Kleih v. Van Schoyck, 250 Wis. 413, 419, 27
N.W.2d 490, 493 (1947).
The language of the deed is not ambiguous.   It does not reserve
any interest to Lindhal or contain any language indicating that it was other than
a full transfer of her rights in the residence to the decedent.  The trial court erred
in considering extrinsic evidence (i.e., execution of a second mortgage, language
in the transfer tax return and Lindhal's testimony regarding the parties' oral
agreement) as a basis for invalidating the quitclaim deed.8   We hold that the
quitclaim deed was valid and enforceable against Lindhal.
Lindhal's remaining claims are premised on her November 1993
claim to personal property and her July 1994 amended claim alleging that she
paid one-half of the down payment on the residence and monthly payments for
upkeep.   The claim stated:   "Under the legal principles of quantum meruit and
quasi-contract and equity, [Lindhal] is entitled to the single family residence."
Because the trial court upheld the will submitted by Lindhal and invalidated the
quitclaim deed, there was no reason to address any of Lindhal's other claims
against the estate.9
8  Lindhal does not allege that she was misled by the decedent into signing the quitclaim deed or
otherwise did it involuntarily.   She executed the deed for the express purpose of insulating the
property from future debts.
9  In  its  written  decision,  the  court  stated  that  Lindhal's  claim  and  amended  claim  were
"inferentially proven by the terms of Jeffrey's will, since they achieve most of the bequest to
Karmen provided in the will."  We do not construe this as a decision on Lindhal's other claims.
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No.   94-3316
On appeal, Lawson argues that the trial court erred in permitting
Lindhal to file an amended claim.    Lawson also argues that the trial court
should have granted him a mistrial because the court read several depositions,
large portions of which were not in evidence at the trial in this matter.   Because
we remand for further proceedings, we decline to address these arguments.   In
considering the balance of Lindhal's claims in light of the fact that the decedent
died intestate and Lindhal quitclaimed her interest in the residence, the court on
remand  may  address  these  arguments  and  such  issues  as  it  believes  are
necessary and hold such proceedings as it believes are necessary to decide
Lindhal's claims to personal property and real estate in light of our decision.
By the Court.—Judgment reversed and cause remanded.
This opinion will not be published.  See RULE 809.23(1)(b)5, STATS.
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