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COURT OF APPEALS DECISION DATED AND RELEASED July 6, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-1043
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
IN THE MATTER OF THE
ESTATE OF
MARY L. CODY,
DECEASED:
WILLIAM J. CODY, JR.,
Appellant,
v.
ESTATE OF MARY L.
CODY,
Respondent.
APPEAL from an order of
the circuit court for Crawford County:
MICHAEL KIRCHMAN, Judge. Reversed
and cause remanded.
Before Eich, C.J.,
Dykman and Vergeront, JJ.
PER
CURIAM. William Cody, Jr. (William, Jr.) appeals from an order
in his mother's estate proceeding, effectively awarding ownership of certain
disputed property to William, Jr.'s brother, Bryan Cody. The dispositive issue is whether willed
property vests in the sole beneficiary of an estate, even before it is formally
transferred under the probate code, when the beneficiary is also the personal
representative. Because we conclude
that no exception to proper procedure exists in such cases, we reverse.
William Cody, Sr.
(William, Sr.) died in January 1992.
His will left all his property to his wife, Mary, and appointed her his
personal representative. A subsequently
prepared inventory of William, Sr.'s property omitted a significant portion of
it. Mary died in September 1992 before
the error was discovered, and William, Jr. succeeded her as personal
representative.
William, Jr. argued that
the omitted property was part of Mary's estate, distributable to her heirs, including
him, under her will. The estate argued
that the property should be excluded, because after William, Sr. died, Mary
gave it to Bryan.[1]
The trial court agreed
with the estate and ordered the property excluded. Essential to the ruling was its conclusion that:
No written conveyance is required from the
personal representative when the person who acts as the personal representative
is the sole beneficiary. The personal
representative can give away whatever rights that personal representative has
in the assets while the estate is pending and there need be no formal
conveyance or other formal action between the personal representative and the
individual if they are one [and] the same person.
The rule in Wisconsin is
that one claiming title to property derived from the estate of a deceased
person must show that title came from the personal representative of the
deceased in the "regular course of administration" of the
estate. Buttles v. DeBraun,
116 Wis. 323, 327-28, 93 N.W. 5, 6 (1903).
The status of sole heir is, by itself, insufficient. Id. at 328, 93 N.W. at 6. That rule contemplates no exceptions. We are bound by supreme court
precedent. Livesey v. Copps Corp.,
90 Wis.2d 577, 581, 280 N.W.2d 339, 341 (Ct. App. 1979). So is the trial court despite its
discretionary authority to provide a fair result in an equitable
proceeding. First Federated Sav.
Bank v. McDonah, 143 Wis.2d 429, 434, 422 N.W.2d 113, 115 (Ct. App.
1988). Because Mary, as the personal
representative, never formally transferred title of the property to herself as
the beneficiary, she was powerless to give it away.
We therefore reverse and
remand for entry of an order including the disputed property in Mary's
estate. Our decision makes it
unnecessary to determine whether the trial court heard sufficient evidence to
find that Mary gifted the property to Bryan.
By the Court.--Order
reversed and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.