Mueseler v. Smith

SHINN, P. J. Robert L. Mueseler and George G. Smith, as executors of the will of Augusta Mueseler, deceased, have moved the court to dismiss an appeal purportedly taken by Arthur P. Mueseler from an order entered June 8, 1949, construing the will of said decedent, determining certain other issues, and ordering partial distribution. The motion was made upon the ground that on June 13,1949, Arthur P. Mueseler signed a writing directed to his attorneys, William Ellis Lady and H. C. Millsap, discharging them as attorneys and waiving his right to appeal from the order; that said attorneys were served with copies of said writing and thereafter, purporting to act for Arthur P. Mueseler, filed a notice of appeal from parts of said order; and that no other notice of appeal was filed. Arthur P. Mueseler died July 28, 1949, leaving a will. Eva Tressa Mueseler as executrix of his estate resists the motion. An order was made appointing a referee to take evidence with respect to the validity and effect of the writing designated “Dismissal of Attorneys and Waiver of Rights of Appeal, ’ ’ executed by Mr. Mueseler, to make findings and conclusions upon the issue referred, and to return the same with the evidence taken to this court. The referee has filed his report. The findings are that said writing was executed by Arthur P. Mueseler voluntarily, that he was of sound mind and understood the nature and purport of said instrument, that the same was duly served on William Ellis Lady on July 13, 1949, by leaving a copy thereof with his secretary at his office, and on said day was filed; that on July 19,1949, William Ellis Lady signed and filed a notice of appeal from a portion of the order entered June 8, 1949; that Arthur P. Mueseler died on or about the 28th day of July, 1949, without having any contact or communication with said William Ellis Lady or H. C. Millsap after they were dismissed. The conclusion of the referee was that the attorneys were discharged and their authority terminated on July 13, 1949.

Eva Tressa Mueseler has filed exceptions to the findings and conclusions of the referee, specifying insufficiency of the evidence to support the finding that the writing in question was voluntarily executed by Arthur P. Mueseler, and asserting that the evidence shows the writing to have been procured by [336]fraudulent representations and concealment. It is contended that the evidence discloses that George G. Smith, one of the executors of the estate, represented to Lawrence Williams, an intimate friend of Arthur P. Mueseler, that the discharge of the attorneys and waiver of right of appeal would be necessary to enable the executors to make payment of funds to Arthur P. Mueseler from the estate of Augusta Mueseler; that immediately upon the execution of said instrument a sum of money would be paid and unless said instrument was executed said Mueseler would lose all right to receive money from the estate, and that the said Lawrence Williams would likewise fail to receive reimbursement for sums he had advanced to Arthur P. Mueseler, secured by assignments of the latter’s interest in the estate; that said representations were fraudulently made, were repeated to said Arthur P. Mueseler by Williams; that said executor concealed from said Lawrence Williams and Arthur P. Mueseler the fact that the executors then had in their possession the sum of $5388.37 which was then payable to said Arthur P. Mueseler, according to the terms of the order of June 8, 1949; that the executor concealed from Arthur P. Mueseler the fact that if the appeal should be dismissed he, Arthur P. Muesseler, would lose the right to receive approximately $80,000, and would receive only the income from one-third of that amount; and that Arthur P. Mueseler was deceived by said representations and concealment and acting thereunder executed the instrument in question. Mr. Williams testified before the referee that he had advanced substantial sums of money to Mr. and Mrs. Mueseler and had told them he was unable to advance any more; that Mr. Smith urged him, Williams, to induce Mueseler to discharge his attorneys and waive his right to appeal; that Smith dictated to him the form of an instrument to be signed, told him that if an appeal was taken the executors would contend that Mueseler had, by opposing the will, forfeited his interest in the estate, although it had been held by the court that up to that time his actions had not been such as to bring into operation a disinheriting clause of the will; Smith represented that it would take two years for the appeal to be disposed of, and that Smith did not advise him that there was any money on hand payable to Mr. Mueseler. He testified that he repeated Smith’s representations to Mueseler, and told him that it looked to him as if he, Mueseler, was liable to be cut off with $1.00; that he advised Mueseler that he, Williams, could not carry them any longer and he thought the proper thing for