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04/26/83 MATTER ESTATE JOHN OMERNIK v. CHESTER

April 26, 1983

IN THE MATTER OF THE ESTATE OF JOHN OMERNIK, DECEASED: RAYMOND OMERNICK, APPELLANT-PETITIONER
v.
CHESTER LEPAK, PERSONAL REPRESENTATIVE OF THE ESTATE OF JOHN OMERNIK, DECEASED, RESPONDENT, ANTON OMERNICK, INTERVENOR



Review of a decision of the Court of Appeals.

Louis J. Ceci, J.

The opinion of the court was delivered by: Ceci

This is a review of an unpublished court of appeals decision which summarily affirmed an order of the probate court closing the estate of John Omernik for lack of assets and discharging the personal representative.

Raymond Omernick, one of John Omernik's two sons, appealed from the order of the probate court, contending that the decedent's homestead was part of the estate, since there was no evidence that a deed which purportedly conveyed the real property to Anton, the other son, had been delivered prior to John Omernik's death. *fn1 The probate court did not make an explicit finding as to whether the deed had actually been delivered to Anton. The issue presented is whether the probate court erred in concluding that the real property was not part of the estate. Because we conclude that the question whether the deed had been delivered should have been considered and that the probate court had jurisdiction to decide this question, we reverse and remand to the probate court so that evidence can be received on the delivery question.

John Omernik died on November 10, 1978. He was survived by two sons, Raymond and Anton, and three daughters. On October 21, 1976, John Omernik had executed a quitclaim deed on his homestead property in Portage county, naming Anton and Anton's wife as grantees in joint tenancy. Under the terms of the deed, consideration for the property was a lump sum of $5,000. The conveyance was made upon the condition that the grantees pay a total of $5,000 to John's three daughters within one year of John's death and pay John's funeral expenses. John's other son, Raymond, was not mentioned in the deed. The deed was recorded by Anton on November 16, 1978, six days after John's death.

Raymond filed a petition for intestate administration with the probate branch of the Portage county circuit court on December 8, 1978. In this petition, Raymond declared his interest as that of personal representative and asked that domiciliary letters be issued to him. He filed an order setting the time to hear the petition for administration and heirship and notice to creditors, pursuant to secs. 856.11 *fn2 and 859.07, *fn3 Stats., and also fulfilled the notice requirements, pursuant to sec. 879.07(1), *fn4 by filing an affidavit of mailing.

The hearing was held on January 16, 1979. The summary of that hearing shows that Raymond moved to dismiss a separate action, which he had commenced in another branch of the circuit court for Portage county, to determine title to the real property in question. Raymond had moved to dismiss this action because he thought that the real property was part of his father's estate, which would be admitted to probate. Anton appeared by his attorney to object to the admission of the estate to formal probate and to Raymond's declaration of himself as personal representative. The court found that although the real property was not subject to probate, there was personal property in the estate that was subject to probate. The summary of the hearing shows that the Judge stated:

"The deed would not be the proper subject for probate court. I don't think we could get around the statutes by listing that property in the inventory of this estate where the record shows the deed has been recorded from John Omernik and title was already transferred."

The court appointed Eugene Zdroik as personal representative. In December, 1979, Raymond filed a request for inventory and account. In February, 1980, he filed a petition for an order to show cause why the personal representative had not filed or sent to Raymond an inventory of the estate or a verified account of the personal representative's administration of the estate. Zdroik subsequently resigned as personal representative, and Chester Lepak, the respondent in this action, was appointed, and domiciliary letters were issued on August 19, 1980. On June 22, 1981, the Judge, on his own motion, ordered Lepak to show cause why he had not filed an inventory. The hearing on the order to show cause was held on August 18, 1981. Raymond, who was not present, alleges that he had no notice of the hearing. There is no indication in the record that notice of this hearing was sent to any of the interested parties.

Chester Lepak appeared at the hearing and told the court that all of the assets had been distributed and that the only dispute involved the land that had been deeded to Anton. The Judge noted the earlier dispute over the title to the real property at the time of John's death and Raymond's dismissal of his declaratory action at the first hearing. He stated that Raymond had taken no action to challenge the deed. The Judge further stated that Raymond would have to bring a separate action against Anton to challenge the deed, reasoning that it was "not part of the estate, it is real estate." The court concluded that there were no assets in the estate and entered an order discharging Lepak as personal representative and closing the estate.

Raymond Omernick appealed, contending that his father had title to the real estate at the time of his death. He moved for summary reversal of the order closing the estate for lack of assets, on the basis of the respondent's failure to file a brief. The court of appeals summarily affirmed the circuit court. The court stated that the probate Judge had made a finding of fact that there were no assets in the estate, and that finding must be upheld unless it is contrary to the great weight and clear preponderance of the evidence. The court held that this finding must be upheld because the record did not contain any evidence or testimony to support Raymond's contentions.

While the court of appeals affirmed the circuit court decision because its finding was not contrary to the great weight and clear preponderance of the evidence, In Matter of Estate of Sorensen, 87 Wis. 2d 339, 343, 274 N.W.2d 694 (1979), we believe that there is implicit in the probate court's decision a Conclusion of law -- whether the probate court had jurisdiction to determine whether the real property was part of John Omernik's estate. As we have noted, the circuit court explained its decision as follows:

"[Raymond's] challenge would have to be against Anton who is now in possession of the property and claiming under the deed and to set the deed aside, and it is not part of the estate, it is real estate." (Emphasis added.)

Since this is a Conclusion of law, this court need not afford the trial court's decision the deference we would give to a factual finding by the lower court. Wurtz v. Fleischman, 97 Wis. 2d 100, 293 N.W.2d 155 (1980); Clark Oil & Refining Corp. v. Tomah, 30 Wis. 2d 547, 141 N.W.2d 299 (1966). Questions of statutory construction are questions of law and are reviewable ad initio by this court. American Motors Corp. v. ILHR Dept., 101 Wis. 2d 337, ...


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