Consaul v. Loennecker

Winslow, J. By the judgment in this case the deliberately executed will of a person of full age, sound mind, and fairly good health is set aside on the ground of undue influence, without a shred of direct evidence from any person that any such influence was exerted. The only evidence which, under any view of the case, can be claimed to justify the judgment, is the evidence of several witnesses to the effect that the testatrix stated, previous to the execution of the will and afterwards, that her daughters illtreated her and that she was obliged to make the will as she did because she was afraid of them. Can the judgment be supported on such evidence alone ? The answer to this question must be in the negative, both upon well-settled principle and authority. Upon such an issue there are two facts to be proven by the contestant: first, that the undue influence was in fact exerted; second, that it was successful in subverting and controlling the will of the testator. Upon the latter question evidence of the statements of the testator, made either before the will was made or after, and which tend to throw light on the condition of his mind, is admissible, upon very familiar principles; but as to the first question the evidence of such statements is plainly merely hearsay. Upon this question it is said in 2 Jones, Ev. § 493: Such declarations “ are admissible only for the purpose of proving the condition of the testator. They afford no substantive proof of fraud, duress or undue influence, and are admissible for no such purpose.” Mr. Schouler says with regard to such declarations made by the testator, whether [466] before or after the execution of the will (Schouler, Wills [2d ed.], § 243): “ Thev are admissible chiefly to show his mental condition, or “the real state of his affections; and they are received rather as his own external manifestations than as evidence of the truth or untruth of facts relative to the exertion of undue influence upon him. They may corróbor-atefbut the issue calls for its own proof from the tivvng.” Such being the law, it is very evident that the fact of undue influence was not proven in this case, because there was not even a scintilla of direct or substantive proof that such influence ever was exerted by either of the beneficiaries. The will was executed by the testatrix while in usual physical and mental health. She was not an old lady, nor was she dependent upon her children for support. It is true that her husband was dead, and that she was estranged from her son, and when the will was executed was living at her own home with one of her daughters, and frequently visited her other daughter; and the trial court seems to have concluded from these facts that a presumption of undue influence had arisen, which threw the burden of proof upon the daughters to rebut the same, which burden had not been lifted. Here, also, the trial court seems to have been in error. It is not the law that, whenever a deed or a will is made by a party in favor of one child to the prejudice of others, a presumption of fraud arises from that fact alone, even if the parent be living with such favored child. In order to set aside such a deed or will on the ground of fraud, proof is necessary on the part of the plaintiff or contestant in the first instance in all cases. He may discharge that burden by going on and proving affirmatively the facts showing undue influence, or he may discharge it by showing a state of facts from which prima facie, without direct proof of the undue influence itself, a presumption thereof will arise, in which latter case the burden of proof then shifts and the beneficiary of the conveyance or will must show that there was no fraud in [467] fact. The facts which may be shown, and which will arouse this presumption of fraud, manifestly cannot be the same in all cases. Facts which might seem very suspicious with reference to a deed or conveyance, such as secrecy in its execution and custody, may have very little weight as to a will, which we all know is usually made with secrecy and is rarely published to the world. With regard to a voluntary conveyance of the entire property of an aged person, this rule was stated in Doyle v. Welch, 100 Wis. 24, as the result of the authorities in this court: “ Where a voluntary conveyance is made by an aged person of his entire property, without consideration, to one who stands in a position of trust and confidence to him, under circumstances of secrecy, the burden of proof is on the grantee to show that the conveyance was untainted with undue influence or fraud.” In Fox v. Martin, 104 Wis. 581, which was a will contest, the universal tendency of testators to keep their wills secret was recognized, and it was said,'in effect, that “ mere secrecy, standing alone, creates no presumption of fraud in the making of a will; ” and the following sentence was quoted approvingly from a previous quotation in Disch v. Timm, 101 Wis. 179: “Where interest, opportunity, and a disposition to influence a testator improperly are shown, a presumption of undue influence arises.” The conclusion which is practically reached in Fox v. Martin, supra, with reference to wills is, in brief, that in order to raise the presumption of undue influence, which throws the burden of proof on the beneficiary, there must be shown a subject unquestionably susceptible to undue influence, either as the result of old age, mental weakness, or both; also some clear evidence of opportunity, and a disposition on the part of the beneficiary, to exercise such influence. When these facts are shown to exist, and especially when they exist with other facts out of the usual course of business transactions of such a nature, the presumption will arise which will put the beneficiary to [468] his proof of good faith and freedom, from undue influence.. Whether the testimony shows these preliminary facts with sufficient clearness and certainty is a matter to be decided' by the trial court. In the present case it is enough to say that the requisite facts to raise the presumption were not shown. The testatrix executed her will at a notary’s office, whither she went at her own will, without the presence of any beneficiary. The beneficiaries do not appear to have known that she was about to execute it. The testatrix was not aged, nor mentally incompetent, nor feeble, but in good health. Her son whom she cut off, had not spoken to her for years. The will was a natural one, under the circumstances. While the beneficiaries doubtless had an interest in having such a will-made, the evidence entirely fails to show that they had any disposition to influence the testatrix improperly, or that the-subject was one susceptible to undue influence. In the absence of these essential facts, the presumption did not arise,, and the will should have been admitted to probate. By the Court.— Judgment reversed, and action remanded to the county court of Milwaukee county with directions to-admit the will to probate and for further proceedings according to law. On January 28, 1902, the mandate was modified so as to-read as follows: Judgment reversed, and action remanded to the circuit court for Milwaukee county with direction to-affirm the judgment of the county court and for further-proceedings according to law. Appellant’s costs in this-court to be paid out of estate.