Will of Silverthorn

Lyon, J. 1. The main question presented by this appeal is, Was Levi Silverthorn, the alleged testator, of sound and disposing mind and memory when he executed the instrument propounded and probated as his last will and testa,ment? As is usual in cases in which testators who, when they executed their respective wills, were on the border-line between mental competency and incompetency, the opinions of witnesses in this case as to the mental status of Levi Silverthorn are in conflict. This results from the different circumstances under which they saw him, and bis various mental conditions at different times, which came under their respective observations. The causes for such conflict of opinion or, at least, for the opinion that the deceased was of unsound mind, are quite clearly reflected in the findings of the learned circuit judge. Those findings, from the sec [377] ond to the seventh inclusive, contain statements of many facts and circumstances which, taken together and assuming that the same conditions existed when the will was executed, probably make a case of want of testamentary capacity, and which, unexplained, would be in conflict with the eleventh finding that the deceased then “had sufficient testamentary capacity to execute said will.” But after a careful exaihination of the testimony, we are satisfied that there is no real conflict in the findings of fact, but that any apparent conflict therein may be satisfactorily explained without disturbing any of them. When the will in question was executed, Levi Silverthorn was physically quite infirm. The process of softening of his brain had been going on for several years, but had not brought him to the state of idiocy or even incipient idiocy. His disease, however, caused serious nervous disturbances. At intervals he suffered from severe.nervous prostration, continuing two or three days at a time. Often at these times he was in the mental condition described in the fourth, fifth, and sixth findings of fact. Probably he could not at those times have made a valid will. But, in the intervals between such attacks, there is abundant evidence that his mind was reasonably clear, and that he had sufficient mental capacity to make a valid will, within the rules of .testamentary capacity which have frequently been laid down by this court. The elements entering into his will were few and simple, and were all the subjects of daily conversation and thought. His property consisted of a farm of 140 acres and the usual outfit of such a farm; forty acres of land detached therefrom; a small homestead in Omro, a few miles from his farm, on which he resided; a life insurance of $1,000, taken for the benefit of his wife; his household goods; and perhaps a small amount of other personal property. He had a wife and an adopted son, who lived on his farm. He had also a nephew and grand [378] son, each of whom bore his name. They were evidently his favorites. No other persons seemed to stand so near to him as these persons above mentioned, and to them (and a favorite niece), in different proportions, he gave his property. To gather and hold these elements in his mind, to comprehend their relations to each other, and to form a rational judgment based upon them, would not seem to require any great mental power or effort. A man of. very moderate intellectual ability would be equal to such a task. We are satisfied from the evidence that during the intervals between the periods of sickness and prostration above mentioned the testator was usually competent to make a valid testamentary disposition of his property; that during one of these intervals he gave directions for drawing the will in question, and executed the same; and that he sufficiently under-stood the nature and effect of what he was doing. Such, we think, must have been the views of the circuit judge, although not as fully expressed in the findings as might be desirable. We understand the condition of the testator described in the fourth, fifth, and sixth findings of fact relates only to his periods of sickness and prostration, and that describe^! in the eleventh .finding to the lucid intervals between, including that during which the will was executed. This view makes the findings consistent with each other, and in accord with the fair preponderance of the evidence. 2. On the trial the proponent, Lem J. Siherthorn, who is one of the devisees named in the will, was permitted, against objection, to testify to conversations and transactions with the testator in his life-time. We are inclined to think the testimony was incompetent under sec. 4069, R. S., and have acted upon that impression by excluding from our consideration the testimony objected to. We do not, however, determine the question of the admissibility of such testimony in like cases. [379] 3. In the argument of the cause in this court there was some debate as to which party is charged with the burden of proof when probate of a will is contested because of the alleged mental unsoundness or insanity of the testator. It was said that a remark in the opinion prepared by the writer in the case of Will of Golé^-AQ Wis. 179, has led some members of the bar to maintain that, when a will is presented for probate, no affirmative proof of the mental soundness or sanity of the testator is required, but that the presumption of sanity asserted in that case is sufficient. We were somewhat pressed by one of the learned counsel to make a further deliverance on that subject. This question of the onus probandi in such cases does not necessarily arise on this appeal, for we think the findings of fact are sustained by a preponderance of proof. Hence the question will not be here determined. Under the circumstances, however, the writer will be pardoned for expressing the opinion, on his own responsibility and without consultation with his brethren, that the statute (sec. 3788, R. S.) requires affirmative proof to be made of the mental soundness of the testator before the will can be admitted to probate, and that until such affirmative proof is made there is no presumption of sanity; but that, when a prima facie case of sanity is made by the proofs, and some contestant makes an issue as to the sanity of the testator, the presumption of sanity arises, and the burden of proving the testator of unsound mind is upon him who asserts it. Nothing further or different was intended in the Oole Will Case, or fairly to be inferred from the language there used, which is as follows: “ However, the legal presumption is in. favor of sanity, and, on the issue of sanity or insanity, the burden is upon him who asserts insanity to prove it. Hence, in a doubtful case, unless there appears a preponderance of proof of mental unsoundness, the issue should be found the other waj.” See note to this case in 82 N. W. Rep. 287.— Rep. By the Court. — ’The judgment of the circuit court is affirmed. The taxable costs in this'court will be paid out of the estate of the testator. The rule of costs in the circuit and county courts is stated in Will of Smith, 52 Wis. 543.