Jackman Will Case

Cole, J. The first objection taken to the order appealed from is, that the statutes in cases of this character do not authorize a change of the place of trial. The question involved in the proceedings is, whether a certain paper, which has been produced to the county court of Rock county, shall be admitted to probate as the last will and testament of Timothy Jackman, deceased It is claimed by those contesting the validity of the will, that it was procured by means of the undue influence exercised by Mrs. Jackman over the testator. There has been one trial of the cause in the circuit court by a jury, which found against the validity of the will. On appeal to this court, it was held that the verdict was unsupported by the evidence, and the cause was sent back for a re-trial. Then this application was made by the proponents of the will, for a change of the place of trial, on the ground that an impartial trial of the issues involved cannot be had in Rock county. We are entirely satisfied that section 6, chap. 123, R. S., applies to the case, and authorized the court to make the order. It is said that this statute relates [412] solely and properly to actions and civil causes, and not to a special proceeding of this nature. This, we think, is an erroneous view of the provisions of this chapter. It is true the word “ action ” is generally used in the chapter, but we do not suppose any restricted or technical meaning is to be given to that term as here used. It is broad enough in its signification to include this proceeding for the probate of a will, and the whole reason and object of the statute will be most fully satisfied by holding that it applies to it. Controversies in regard to the validity of wills not unfrequently excite a great deal.of popular feeling and interest; and that the contest over this will has aroused all this general interest and excitement in Rock county is amply proven by the opinion of the circuit judge in this case, who remarks that “ it seldom happens that a civil action excites the interest in the public mind which was excited by this trial.” If, therefore, a change of the place of trial is granted in any civil action upon the ground that a fair and impartial trial cannot be had where the law primarily establishes it, the ends of justice would seem to require that it should be granted in a proceeding of this kind. And we are clearly of the opinion that section’6, chap. 123, fully applies to it, and authorizes the court to change the place of trial upon a proper application. Do, then, the matters stated in the petition show that there is good reason to believe that an impartial trial of the cause can not be had in Rock county? We think they do. It is stated in the petition for the change, that the contestant, as well as some of the other heirs of Timothy Jackman, and some of the attorneys of the contestant, have labored assiduously and constantly to prejudice the minds of the people of Rock county against the will and against its provisions, and to cause it to be generally believed by the inhabitants of the county that Mrs. Jackman was the real author of [413] the will, and had in fact procured her husband to make it by fraud and undue influence over him. The contestant, Hiram Jackman, and three of his attorneys, in affidavits made by them, have denied that they have made any such efforts to influence public sentiment or create any popular feeling or opinion against the will, or against any of the executors therein named. Yet it is not denied that there was a large crowd of spectators, unfriendly to the will, who were constantly expressing in the court room and in the hotels where the jurors hoarded, and in the stores and other business places in the city of Janesville, their feelings, sympathies and prejudices against the will, and against Mrs. Jackman, in the presence and hearing of the jury, as set forth in the petition. And the circuit judge who tried the cause, says, in the opinion sent up with the record, that the trial “ continued several days, and during the whole time the court room was thronged by hundreds of the people of Janesville and of the' adjoining country; and that an intelligent spectator could not, without closing his eyes and his ears to what was passing around him, fail to discover that the sympathies of almost the entire throng were warmly with the contestant and against the executors, and that the belief was general that the will was obtained by means of the undue influence which they claim Mrs. Jackman exercised over her husband.” In view of the fact that there has already been a lengthy trial of the cause attended by these circumstances of public excitement and feeling, it is fair to assume that a fair and impartial trial cannot be had in the county where these events have happened. The contestant resists the change principally on the ground that if the matter be removed for trial to some other county than Rock, it will greatly add to the necessarily heavy expense attendant upon a trial. This may be so; but still, if, owing to local prejudice or popular feeling, an impartial trial cannot be had in [414] that county, the due administration of justice requires that the place of trial be' changed, regardless of these personal considerations. We are satisfied that the facts and circumstances stated in the petition warrant the conclusion that an impartial trial cannot be had in Rock county. By the Court. — The order of the circuit court is affirm'ed. ' Lyon, J., having presided at the circuit when the order appealed from was made, took no part in the decision of this appeal.