Will of Jenkins

Lyon, J. As to the signing of the instrument propounded as the last will and testament of Mrs. Jenkins, it is sufficient to say that, under our statute of wills (R. S., ch. 93, sec. 5), it was a valid signing by the testatrix if Mr. Reese wrote her name thereto in her presence and by her express direction, or if she affixed her mark thereto. 1 Jarman on Wills (2 Am. ed.), 118; 1 Redfield on Wills, 203 (ch. VI, § 18), and cases cited in notes. The main question litigated on the trial was, whether Mrs. Jenkins had sufficient mental capacity to make a valid testa [612] mentary disposition of her property when she executed the instrument presented for probate. On this question, Mr. Reese, one of the attesting witnesses to the instrument, testified to a state of facts, which, if not negatived by other proofs, shows beyond a reasonable doubt, not only that the instrument was properly executed and attested as a will, but that Mrs. Jenkins was of sound disposing mind and memory when she executed it, within the rule laid down by this court in Holden v. Meadows, 31 Wis., 294. The testimony of Mr. Reese is corroborated by other evidence in the case. On the other hand, Mrs. Ead, the other attesting witness, testified to a state of facts which, if true, shows that the instrument was not legally executed and attested as a will, and that, at the time of its alleged execution, Mrs. Jenkins had not a sound and disposing mind and memory. Her testimony also is corroborated by that of other witnesses. The following is the only finding of fact by the court below: “ That the witnesses purporting to be the subscribing witnesses to said will do not concur in their testimony; and that said paper writing bearing date the 29th day of August, A. D. 1874, purporting to be the last will and testament of Susan Jenkins, deceased, was not attested and subscribed in accordance with the requirements of the statute in such case made and provided, so as to entitle it to record and probate.” When he announced his decision, the learned circuit judge delivered an opinion, which is preserved in the bill of exceptions. Erom the opinion and finding we understand the court held that, because the two attesting witnesses did not concur in testifying to an execution and attestation of the instrument in the manner required by the statute, the proof was insufficient to establish the same as the will of Mrs. Jenkins. This, we are satisfied, was error. The law is well settled, that a will may be supported against the testimony of some, or even of all, of the subscribing witnesses thereto, if their testimony is over [613] borne by other evidence. Tarrant v. Ware, 25 N. Y., 425, and cases cited in the opinion by Judge Denio. Indeed, this is not denied by the learned counsel for the respondent. Were the law otherwise, any will might be defeated by a corrupt attesting witness. The testimony is so conflicting that we are not willing to decide whether it does or does not prove the facts essential to a valid will. Before doing so we ought to have the aid of proper findings of fact by the circuit judge before whom the cause was tried, and who can best determine the weight which should be given to the testimony of the several witnesses examined before him. We may be permitted to suggest that, because of such conflict, it seems to us very desirable that the regular attending physician of Mrs. Jenkins during her last illness, Dr. Burrall, should be examined as a witness to her mental condition at the time the alleged will was made. By the Court. — Judgment reversed, and the cause remanded for a new trial.