Loughney v. Loughney

Cassoday, J. John Loughney died at the age of seventy-seven. He left no father or mother or widow or children, and was never married. His next of kin consisted of three brothers named in the will, and two married sisters,— one residing in Chicago, and the other in Milwaukee. For about twenty-five years prior to his death he had made his home at his brother Matthew’s, except that he had made his home with his brother Anthony from some time in November, 1888, to about March 1,1892, and except that prior to November, 1888, he had from time to time, for days or weeks, and sometimes for months, been absent from Matthew’s, stopping with one or more of his sisters or other brothers. In the fore part of February, 1892, the testator ■went to Matthew’s, and while there made arrangements to return and make his home thereafter with Matthew. Anthony went there with him at the time. In pursuance of such arrangement he returned to Matthew’s, and commenced making his home there, about March 1, 1892. On the evening of March 17, 1892, he executed the written instrument in question, purporting to be his last will and testament, and died about nine hours afterwards. He left property of about the value of $6,000. It is conceded that it was duly signed by the testator, and attested and sub — 97 — scribed by two witnesses, as required by the statutes. So it is conceded that there is no evidence that the making or execution of the will was procured by undue influence on the part of any one. ' The only controverted question in the circuit court or this court is whether the testator had sufficient mental capacity to make a will at the time of the execution of the paper in question. Eight witnesses on the part of the proponents testify as to their observations respecting him shortly before his death, and give as their opinion, based thereon, in effect, that he was of sound and disposing mind and memory at the time of executing the will. One of these — Charles Deiner — was present during the time the will was being written by James Smith, and he gives a very clear and consistent statement as to what was said and done by the testator and by Mr. Smith during the time. According to his testimony, the testator dictated all the disposing parts of the will. On the other hand, Mr. Smith and two other witnesses for the contestants testify as to their observations respecting the testator for some time before his death, and give it as their opinion that he was of unsound mind when he executed the will. Mr. Smith, however, appears to have been the principal witness relied on by the contestants. lie was manifestly a man of more than ordinary intelligence, and had for several years been in the habit of drawing wills for those living in the vicinity of TIale’s Corners, where he resided. He had loaned money for the testator and drawn papers for him for man}?- years. "While the testator was living at Anthony’s, he drew a will for him, December 1, 1888, and was named as executor therein, and retained the custody of that will up to the time of the trial in the circuit court. Among other things, Mr. Smith testified, in effect, that the testator called upon him at his place February 23,1892, to release a mortgage and get some money — 98 — that be bad belonging to the testator; that be made bis mark, as usual, to the release of the mortgage; that he did not write, and could not; that be received $160 or $170 from him; that the testator then claimed that be still owed him $400; that be did not look at bis books at the time, but that the testator was not correct about it; that Anthony came there with the testator; that, after Anthony left, the testator requested him to get his will and read to him, so that he could see if he recollected what was in it; that he got it from his safe, and read it over to the testator two or three times; that he seemed to recollect it pretty distinctly; that the testator then told him to put the will back in the safe,— that he would not have it long; that he again saw him on business a few days afterwards; that about 8 o’clock on the morning of March 17, 1892, Matthew came after him, and said his brother John wanted him to come over and draw a will or something to that effect, and spoke about some money Smith had belonging to John. lie further testified, in effect, that it was about three miles distant; that he did not go over until evening; that he got there between 6 and 7 o’clock; that the testar tor told him he wanted to change his will; that “ he wanted a change made so as to give his brother Matthew’s children the remainder in place of his brother Anthony’s;” that he wrote it down, accordingly, as he told him, on the back of the old will, as a codicil, and without any further instructions ; that after he had completed the codicil, except the attesting clause, he spoke of the necessity of having another witness, and Charles Deiner was sent for; that he then, and before Deiner came, read the codicil to the testator ; that the testator then said that he wanted to make a new will; that the testator gave directions for him to draw the new will, and he drew it accordingly; that he did not put anything in the new will on his “ own motion, except what John dictated to” him; that he put in the formal parts, — 99 — but did not put in any disposing parts; that in the first will he was authorized to spend $50 as he saw fit,— to pay something- to the church, and, if he saw fit, treat the boys who attended the funeral; that he aslced the testator if he should put that in the last will, and that he said, “No;” that he asked him if he should have his name cut on the monument, and he said, “ Yes.” It is true that such testimony of Mr. Smith is interlarded with numerous expressions of his opinion to the effect that the testator had not the mental capacity to make a valid will; but the facts thus admitted are in direct conflict with such expressions of opinion, and are far more convincing. This more clearly appears when we analyze such testimony and compare it with some other testimony in the record. Thus, the codicil which Mr. Smith drew and is in evidence, and which it is conceded the testator refused to execute, left the old will as it was, except that Matthew’s children, instead of Anthony’s, were therein made residuary legatees; but the will executed, the disposing parts of which Mr. Smith admits were wholly dictated by the testator, drops out the bequest of $1,500 to James, as found in the first will, and in lieu thereof gives $1,000 to the children of James. It also cuts down the specific bequest of $1,500 to the children of Anthony to $1,000. It also omits entirely the specific bequest of $1,500 to the children of Matthew, but makes the children of Matthew the residuary legatees instead of the children of Anthony, as in the first will. So, it omits entirely the $50 which, by the first will, Mr. Smith, as executor, was directed to disburse for the purposes and uses therein mentioned, as he might deem best. It is true the last will makes no mention of either of the two married sisters; but the same is true of the first will, and, according to Mr. Smith, they were left out of that by design. It is true, the attesting clause of the last will does not state that the testator was of sound mind; but neither does the — 100 — attesting clause of the first will, drawn by the same witness,— in fact, the two are substantially alike. But the testimony of other witnesses who were present at the time of making the will place Mr. Smith in a still more unenviable light. The witness Mary Purcel, a school teacher boarding at Matthew’s at the time the will was made, among other things testified to the effect that, when she came home from school that night, she passed through the room where Mr. Smith and John were alone, and, as she was going through, she heard John say to Smith, “Do as I want you to,” and that Smith replied, “Well, well, John, you and I have had dealings together a long time now. We never had any trouble, and I guess we can get along now;” that John’s expression was, “Do as I want you to do.” Matthew’s daughter Mary, among other things, testified to the effect that, on the evening the will was made, Smith told her that her family were well enough provided for in the first will; that it would be better for them and for her to get her uncle not to make a will that night; that he told her to tell her father to tell John so. The subscribing witness Deiner, among other things, testified to the effect that Matthew’s boy came after him; that, when he went into the presence of the testator, he said he had sent for him, as he was going to make a will and wanted him to sign as a witness; that Smith was talking with John, when he went in, about making a will; that Smith asked him why he wanted to make a will; that John told him to go on and make the will, and do as he wanted him to; that Smith then said, “ All right,” and took a paper and ink, and sat down and wrote off what John told him to write; that it took an hour; that he made the paper just as John told him to make it,— giving, in detail, what he did tell hhn, and as contained in the will, and also that be told him he was born in 1S15. Mr. Smith partially admits what Mary said, but claims he then told her that her uncle — 101 — was not in a condition of mind to make a will that night. He also admits that the testator said to him that evening that he (Smith) had some of his money, and that he had nothing to show for it; that he told him that was unusual,' that he had done business with him so long and he never had a receipt; that he thereupon wrote out and gave him a receipt or duebill for $400. It is manifest from the evidence that Mr. Smith sought to influence the testator not to make any change in his will that night, but that he had sufficient mental force to insist upon it and secure its execution, and also to obtain from him written evidence of his moneys then in the hands of Mr. Smith. In addition, Mr. Smith presented the will in question for probate, accompanied by his petition for probate, under oath, in which he stated, among other things, that the “ deceased left a will, duly made and executed,” as he was informed and verily believed. Upon the record before us we are compelled to say that Mr. Smith is impeached by his own testimony, and that, in view of it, his opinion as to the testator’s want of capacity is overwhelmingly disproved by the evidence in the case. Certainly, the trial judge was justified, upon his own admissions, in characterizing his conduct as a “ gross impropriety.” It is doubtfpl if there is any reported case where a man drew and witnessed a will in which he was named as executor, and then, after petitioning for its probate, as here, sought to have it rejected upon the strength of his own testimony, and it is hoped that there will never be another instance. In re Lewis’s Will, 51 Wis. 101. In reaching the conclusions mentioned, we have considered no evidence not clearly admissible. The verdict of a jury, in a case like this, has long been regarded as a verdict on a feigned issue in chancery. It is merely advisory to aid the conscience of the court. Jackman Will Case, 26 Wis. 104; Chafin Will Case, 32 Wis. 557; In re Lewis's Will, — 102 — 51 Wis. 101; Wright v. Jackson, 59 Wis. 584; Ballantine v. Proudfoot, 62 Wis. 216. Such being the law and the facts, it becomes unnecessary to consider whether, technically, some of the testimony was not improperly admitted. By the Court.— The judgment of the circuit court is affirmed.