Estate of Rosencrantz: McIver v. Kane

Eschweiler, J. Under sec. 310.10 (sec. 3791), Stats., the county court is declared to have power to take proof of the execution and validity of lost wills and to establish the same. This, contrary to respondent’s suggestion, requires that there shall be the same proof of execution of any alleged lost or destroyed will as would be required in a contest over the probate of a document offered as the original. The proponent of a lost or destroyed will cannot stand in any better position than one who offers an original document so far as the necessity of proof of execution is concerned. *112 The appellant urges here that there was no proper proof of the due execution of the alleged lost or destroyed will. Proponent’s testimony is not clear as to which three, out of the possible four then employed in the bank, subscribed their names as witnesses to the attestation clause, and appellant urges that the trial court was not justified in finding that either Carlson or'two out of the remaining three were, as a matter of fact, the particular subscribing witnesses. An important element required to appear in order that due execution of a will under sec. 238.06 (sec. 2282), Stats., should appear, namely, that the witnesses must have subscribed the document in the presence of the testator, was not expressly or definitely asked of or stated by any one on the trial, although this particular feature was not called to the trial court’s attention so far as the record discloses, nor has it been urged by contestant on this appeal. Carlson, a bank cashier, court commissioner, and notary public, experienced in the drafting and execution of wills, in answer to a question on behalf of proponent to which contestant made no objection, testified that “this will was signed by Mrs. Rosencrantz in (his) your presence and in the presence of each other and of whoever witnessed the will as witnesses, and it was fully and properly executed in (his) your presence and in the presence of the witnesses.” The attestation clause attached to the copy produced by Carlson, containing the usual and formal recital that it was subscribed by the witnesses at the request and in the presence of the testatrix and in the presence of each other, is entitled to consideration. Will of Foxen, 186 Wis. 640, 642, 203 N. W. 328. Considering this and the entire record, we think there is sufficient to support the conclusions of the trial court. The rule of the common law requiring the calling of all the attesting witnesses as to such document or explaining or excusing their absence, held in Will of Johnson, 175 *113 Wis. 1, 5, 183 N. W. 888, to be in force in this state, was here followed, inasmuch as proponent produced in court all of the four possible subscribing witnesses. The three, other than Carlson, testified as to their familiarity with Carlson’s custom of calling them as witnesses to such documents, but each denied a present recollection of signing this particular will; and while each was unable to testify that he or she did sign as such witness, also expressly stated that he or she would not testify that each did not so sign. Carlson did expressly testify that he was such subscribing witness; he also testified that he could not say that he did sign as a witness. The trial court, however, in this situation, in view of the lapse of time since its execution in 1921 and the hearing in 1925; the number of transactions of a similar nature that had occurred in the bank; the positive assertions of Carlson, even though he subsequently qualified them; the testimony of the other employees, and all the facts and circumstances, might rightly determine that there was due, proper, and complete execution of this will. He is not precluded from finding due and proper execution of such an instrument where there is a lack of memory by the subscribing witnesses, or even in cases of their positive denials of their' signatures. Will of Grant, 149 Wis. 330, 334, 135 N. W. 833; Will of Jenkins, 43 Wis. 610, 612. By the Court. — Order affirmed.