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COURT OF APPEALS DECISION DATED AND RELEASED October 4, 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. 94-3149
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
In the Matter of the
Estate of
Victor C. Schwartz,
Deceased:
ANNE E. SCHWARTZ,
Personal
Representative of the
Estate,
Appellant,
v.
PEARL ELODA SCHWARTZ,
Respondent.
APPEAL from an order of
the circuit court for Waukesha County: DAVID L. DANCEY, Reserve Judge. Affirmed.
Before Brown, Nettesheim
and Snyder, JJ.
SNYDER, J. This
is an appeal from an order that awarded rugs and runners as household
furnishings to Pearl Eloda Schwartz, the widow of Victor C. Schwartz, and
required the estate to reimburse Pearl for part of Victor's funeral
expenses. We conclude that the award of
the household furnishings under § 861.33, Stats.,
was not clearly erroneous and that the trial court had the authority to direct
the payment of the funeral expenses claim.
Accordingly, we affirm.
Victor and Pearl were
married on November 18, 1988, and Victor died testate on May 9, 1993. Victor's last will, dated December 29, 1992,
left $25,000 to Pearl and the balance of the estate to his only child and
designated personal representative, Anne E. Schwartz. The will was admitted to
probate after Pearl withdrew objections to the will and to Anne's appointment
as personal representative.
As Victor's surviving
spouse, Pearl selected certain articles of Victor's personal property under §
861.33, Stats., which included,
inter alia, three Persian/Kirman rugs with runners.[1] Pearl contends that the articles were
eligible for selection as household furnishings because they were used in the
Schwartz home for Victor's comfort and convenience.
In the estate's
inventory, the rugs and runners, valued at $70,000, were classified as Victor's
solely-held investments rather than as household furnishings. Contending that investment property is not
selectable under § 861.33, Stats.,
the estate objected to the transfer of the articles to Pearl.
The estate argues that
there was a total failure of proof that the rugs were used by Victor for his
convenience and comfort, that the rugs were obtained by Pearl for her own
enjoyment rather than Victor's, and that Victor was in poor health and not
living in the home when the rugs and runners were present.
Whether property
selected by a surviving spouse under § 861.33, Stats., represents household furnishings or the decedent's
solely-owned investments is a question of fact. Findings of fact will not be set aside unless clearly erroneous, and
due regard shall be given to the opportunity of the trial court to judge the
credibility of the witnesses. Section
805.17(2), Stats.
The term “household
furniture” as used in a statute concerning a surviving spouse's right of
selection describes furniture used by the deceased for his or her convenience
and comfort rather than for commercial purposes. See Greatens v. Bosse, 247 Wis. 44, 47, 18
N.W.2d 335, 336 (1945).[2] A statute providing for a surviving spouse's
selection of personal property of the decedent is entitled to a liberal
construction in favor of the survivor. See
id.
It is undisputed that
the rugs were purchased and delivered to the Schwartz home between May and July
1991. Pearl testified that she and
Victor together shopped for and purchased the rugs and runners; that the rugs
and runners were used in the home after July 1991 and prior to Victor's death;
and that Victor lived in the home from the time the rugs and runners were
delivered until his stroke on November 4, 1991, and again during the summer of
1992. Pearl further testified that the
rugs and runners were in everyday use in the home and had never been offered
for sale.
Pearl's daughter, Kristina
Anzini, testified that she visited the Schwartz home after the rugs and runners
had been purchased and observed that the rugs were in normal household use, and
that during two of her visits, Victor was living at the home. Photographs depicting the placement and use
of the rugs and runners as testified to by Pearl and Anzini were received into
evidence.
In response, the estate
refers generally to testimony in the record showing that Pearl obtained the
rugs for her enjoyment and not Victor's, that Victor lived outside the home
during the period the rugs were present, and that when he was in the home the
rugs and runners were an obstacle to him rather than a comfort and convenience
because of his poor health. The estate
does not cite to the record for the referenced testimony. We will not sift the record to locate
support for a party's contention. Keplin
v. Hardware Mut. Casualty Co., 24 Wis.2d 319, 324, 129 N.W.2d 321, 323
(1964).
The trial court found
that the rugs and runners were household furnishings because they “were used in
the maintenance of the home ... at the time that the rugs were laid down in
1992[3]
until the death of the decedent” and that “[Victor] lived there on and off
during that period, albeit quite briefly.”[4] We conclude that the trial court's factual
finding that the rugs and runners were articles of household furniture for the
convenience and comfort of Victor while Victor was in the home is not clearly
erroneous.
We next turn to Pearl's
claim for reimbursement of funeral expenses.
The applicable statute, § 859.49, Stats.,
states:
The
reasonable expense of the last illness and funeral may, if properly presented,
be paid by the personal representative of the estate of a deceased spouse and
if so paid shall be allowed as a proper expenditure even though the surviving
spouse could have been held liable for the expense.
Pearl's claim is for
$3000 that she paid to the Becker-Ritter Funeral Home as a funeral expenses
advance. Contending that the trial
court's order to pay the claim was contrary to the plain language of § 859.49, Stats., which states that payment is
within the personal representative's discretion, the estate argues that the
trial court lacked authority to require that payment be made to Pearl.[5]
Citing a 1906 case,
Pearl contends that the estate is primarily liable for Victor's funeral
bill. “[T]he general current of
authority is to the effect that estates of all persons are made primarily
liable for funeral expenses.” Schneider
v. Estate of Breier, 129 Wis. 446, 449, 109 N.W. 99, 100 (1906).
The application of a
statute to a particular set of facts is a question of law that we review
independent of the trial court's determination. Artis-Wergin v. Artis-Wergin, 151 Wis.2d 445, 452,
444 N.W.2d 750, 753 (Ct. App. 1989).
The terms of § 859.49, Stats.,
are permissive in nature. Stromsted
v. St. Michael's Hosp., 99 Wis.2d 136, 145 n.8, 299 N.W.2d 226, 231
(1980). While we agree that the statute
allows personal representatives discretion in the payment of last illness and
funeral expenses, we disagree that such exercise of discretion is unfettered or
final.
The discretion at issue
must be measured against the statutory duties of personal representatives in
ch. 857, Stats. Section 857.03(1), Stats., requires that “[t]he personal representative shall
... pay and discharge out of the estate all ... claims allowed by the court, or
such payment on claims as directed by the court.” (Emphasis added.)
The trial court found
that there was nothing in the record that would foreclose Pearl from recovering
her funeral expenses contribution under § 859.49, Stats., and that the $3000 advance came from Pearl's own
funds. We are satisfied that the trial
court had authority to review the personal representative's exercise of
discretion under § 857.03(1), Stats.,
and to direct that the personal representative pay the funeral expenses claim.
Further, we note that
the trial court's order that the claim be paid is consistent with the first
provision of Victor's will, which states, “I authorize the payment of the
expenses of my last illness and funeral and all of my legal debts,
if any, as soon after my decease as conveniently may be.” (Emphasis added.) It is well settled that a testator's intent should be afforded
paramount importance. See Madison
Gen. Hosp. Medical & Surgical Found. v. Volz, 79 Wis.2d 180, 186,
255 N.W.2d 483, 486 (1977).
Because the trial
court's finding that the rugs and runners were selectable articles under §
861.33, Stats., was not clearly
erroneous and because the trial court had authority to require that the
personal representative pay the funeral expenses claim, we affirm.
By the Court.—Order
affirmed.
Not recommended for
publication in the official reports.
[1]
Section 861.33(1), Stats.,
provides in relevant part:
(a) ... [I]n addition to
all allowances and distributions, the surviving spouse may file with the court
a written selection of the following personal property, which shall thereupon
be transferred to the spouse by the personal representative:
....
3. Household furniture,
furnishings and appliances;
....
(b) The selection in par. (a) may not include items specifically bequeathed except that the surviving spouse may in every case select the normal household furniture, furnishings and appliances necessary to maintain the home. For this purpose antiques, family heirlooms and collections which are specifically bequeathed are not classifiable as normal household furniture or furnishings.
[2] In 1945, two cases addressed the rights of a surviving spouse under § 313.15, Stats., 1945, to distribution of the decedent's personal property. Greatens v. Bosse, 247 Wis. 44, 18 N.W.2d 335 (1945), held that the decedent's furniture in a summer home not used by the widow were articles of household furniture subject to the widow's claim. Gibbon v. Pengelly, 247 Wis. 616, 20 N.W.2d 558 (1945), held that a diamond brooch and a diamond necklace were clearly investments and therefore not subject to the widow's claim.
[3]
It is undisputed that the rugs and runners were purchased in 1991. Schedule G of the inventory filed by the
estate lists the items as:
(3) Persian/Kirman Rugs with
Runners $70,000
Purchase in May, June and July 1991.