Gavitt v. Moulton

Cassoday, C. J. The statute gives to the county court '“power to take proof of the execution and validity” of “any will of real or personal estate” which has been “lost or destroyed by accident or design,” and “t» establish the same.” Sec. 3791, Stats. 1898. “The petition for the probate of such will” must, however, “set forth the provisions thereof.” Id. That was done in the case at bar. “The same power” is thereby given to “the circuit court” “in an action brought for that purpose.” Id. Of course, the fact that such will is not in existence and cannot be produced makes it necessary to prove its contents by secondary evidence. Everitt v. Everitt, 41 Barb. 385; Southworth v. Adams, 11 Biss. 256, 260. Such statute is in aid of the common law, and the proof of such contents may be made as at common law. Harris v. Harris, 26 N. Y. 433; In re Kennedy’s Will, 167 N. Y. 172, 60 N. E. 442; 19 Am. & Eng. Ency. of Law, 563; Hall v. Allen, 31 Wis. 691. There is no question here but that the contents of the will were sufficiently proved. The attorney who drew it testified to its contents substantially as found by the court. His testimony is corroborated to some extent by the testimony of each of the other subscribing witnesses. So the formal execution of the will is sufficiently proved, and seems to be conceded. The probate of the will, however, is contested on three grounds. To appreciate the questions presented, a general outline of the situation seems to be. necessary. The testator had resided in Berlin for many years as a — 42 — bachelor. He occupied three rooms over a store. When he-was well he took his meals at the hotel, and when he was sick, or did not feel well, his meals were brought to him. His principal business was loaning money on mortgage security,, shaving notes, etc. He had no blood relatives nearer than nephews and nieces, and they lived in Hew York and Illinois.. The contestant, Anna, had been married to one Baehinsky several years ago, but was divorced from him some nine or-ten years before the trial of this action, and he subsequently died. After the divorce she returned to Berlin, where she-formerly lived. Mr. Moulton kept company with her before-she was married to Baehinsky, and again and for several years after her divorce. During that time, or a portion of’ it, she lived in a house belonging to- Mr. Moulton. September 20, 1897, they were married by a justice of the peace in Milwaukee county, who issued his certificate to that effect,, with two subscribing witnesses. At the time of such marriage Mr. Moulton was over eighty-one years of age. After-such marriage she continued to occupy the house-, the same as before, and he continued to occupy the rooms over the store, the same as before; but he made frequent visits to her at the house, and she visited him at the rooms. A little more-than a month after such marriage, and on October 25, 1897, Mr. Moulton made his will, thereby purporting to give all his property to “his beloved wife,” Anna. It appears that September 7, 1898, Mr. Moulton had an attack of apoplexy, and became unconscious for a little time; that on September 9, 1898, his mind was still in a dazed condition, but he-was better — not unconscious — and became clear-headed, but remained in bed, although he was able to talk and take nourishment and answer questions put to him. That was on September 9, 1898. On September 10, 1898, he was up all day,, or the most of the day, and his mind was sound during that day. On that day he sent for his attorney, who went to Mr. Moulton’s rooms and found him there, up and dressed, sitting43 in a chair in the middle of the room; that he pointed to Anna, who was also there, and said she was claiming to be his wife, and it was all wrong, and he wanted him to get her out at once, and thereupon Mr. Moulton made an affidavit before a court commissioner for the arrest of Anna for unlawfully and wrongfully and by force and arms breaking into his rooms and doing damage therein. On that same day he requested •his attorney to draw his will, saying to him that he wanted to leave some small legacies to different persons whose names he would furnish, and the balance of his estate he proposed to give to Mr. George Gavitt and his wife. The attorney subsequently received the memorandum in evidence, and drew the will, and the same was executed, as found by the trial court, about 5 o’clock on the afternoon of that day. As indicated in the foregoing statement, that will contains this clause: “Whereas, one Anna Bachinslcy is now claiming to be my wife, I take this occasion to say that I was never married to her or any other woman.” On October 8, 1898, Anna, filed her verified petition for the appointment of a guardian for Mr. Moulton by reason of his alleged incompetency to do business. October 28, 1898, Mr. Moulton commenced an action against Anna to set aside and cancel the marriage certificate mentioned, and the record thereof, made September 29, 1898. The contestant, Anna, answered the complaint in that action, and alleged, among other things, that whatever secrecy there had been in respect to such marriage'had been at the request of Mr. Moulton. That cause was still pending when Mr. Moulton died. It appears that after the will was so executed, and on-September 13, 1898, the attorney who drew it sealed it up in an envelope and indorsed thereon, “The last will of II. 0. Moul-ton,” and filed the same in the county court. August 14, 1899, Mr. Moulton withdrew the will from the county court, and told the attorney that he wanted to keep the will, but no44 person ever saw the will itself afterwards. In November or December, 1899, Moulton showed the attorney the sealed envelope with the indorsement thereon — showed it to him several times. January 24, 1900, Moulton and another made a very thorough search for the will through the safe, the green box, theo secretary, and papers, but could not find it. Moulton thereupon told his attorney that he had' lost the will, and wanted him to draw another will like the former will, and stated the substance of it; but afterwards, and in April or May, 1900, Moulton told his attorney that he had found the will, and again showed him the envelope said to contain the will. After the execution of his will and until he died he remained feeble. July 3, 1900, Mr. Moulton was again taken •sick. He was nervous, his right arm hanging down by his side, and he remained in a comatose condition until he died July 8, 1900. It appears from the inventory of the special administrator that the value of the whole estate was less than $7,000. The probate of the will is contested upon three grounds: 1. Want of mental capacity on the part of II. C. Moulton to make a valid will at the time the will in question was executed. The requisite mental capacity to make a valid will has frequently and recently been stated by this court. In re Downing's Will, 118 Wis. 581, 95 N. W. 876, 879. A restatement of one quotation thei’e made is sufficient for the present purpose. “It is essential that the testator has sufficient capacity to comprehend perfectly the condition of his property, his relations to the persons who were or should or might have been tire objects of his bounty, and the scope and bearing of the provisions of his will.” Id. The undisputed evidence in the case at bar brings it within the rule stated. The testator sent for his attorney, and directed him to do certain things in respect to tire contestant, Anna, mentioned in the foregoing statement of facts, and — 45 — thereafter told him that he wanted his will drawn; “that he wanted to leave some small legacies to different people,” but that he conld not just then state their names, “and the balance of his estate he proposed to give to Mr. George Gavitt and his wife,” and that he would give him “instructions as to. the names later,” and he did; and the attorney drew the will “in accordance with his instructions, and in accordance with the names so far as they were concerned.” After the will was so drawn, the attorney read it over to Mr. Moulton in the presence of the other two subscribing witnesses, and he expressed himself as being satisfied with it, and that it was all right, and declared that it was his will, and signed the same in their presence, and requested the subscribing witnesses, including the attending physician, to subscribe their names thereto as such witnesses, which they did in his presence and in the presence of each other. All three of the subscribing witnesses testified that, in their opinion, Mr. Moulton was at the time of executing the will of sound mind; and the testimony of the attorney who drew the will, as to its contents, was corroborated to some extent by the other two subscribing witnesses. Counsel for the contestant virtually concede that the evidence is sufficient to sustain the finding of the court that Mr. Moulton was of sound mind at the time of executing the will. 2. Nevertheless, counsel very properly contend that his weakened mental and physical condition should be considered in determining whether the will was procured by fraud and undue influence. As indicated by the facts stated, the circumstances were peculiar. He was an old man with no blood relations nearer than nephews and nieces, and they lived far from him. His relations with the contestant, Anna, were peculiar and unnatural. The evidence is to the effect that he was married to her at the time and place stated. But they continued to live separately, occupying different buildings, the same as before, and continued frequently to visit — 46 — each other tbe same as before. The contestant concedes that the marriage had been kept secret at the request of Mr. Moul-ton. Manifestly, he became estranged from her prior to the execution of the will; and, as indicated in the statement, he forced her from his rooms, and took steps to have her arrested. That fact, and the fact that the nurse was excluded from the room.when the will was executed, is referred to as -evidence tending to prove undue influence. Regarding her as the wife of the testator, as we must on the evidence before us, still he had the legal right to make a will and leave her out. The important question is whether she was left out of the will by reason of fraud or undue influence practiced upon him by any person or persons. Was it by reason of im-portunities or flatteries which he was unable to resist ? None of the subscribing witnesses were in any way interested in the particular disposition he should make of his property. The nurse who was excluded from the room had no interest in it. The mere fact that knowledge of the contents of the will was confined to the subscribing witnesses is no evidence that it was procured by undue influence. Vance v. Davis, 118 Wis. 548, 95 N. W. 939, and cases there cited. Seemingly, there was no one near Mr. Moulton who could have had any motive to influence him to make the will in question, except Mr. Gavitt. lie was no stranger to Mr. Moulton. They had known each other intimately ever since Gavitt’s marriage thirty years prior to the trial of this action. Gavitt and his wife lived for many years in Berlin prior to 1886, and in that year moved to Chicago. Moulton had known Mrs. Gavitt ever since she was a small girl. While Gavitt lived in Berlin, their places of business were opposite each other, and Mr. Moulton would visit Gavitt’s every day or evening. After Gavitt moved to Chicago, they kept up correspondence, and at one time, and during the World’s Fair, Moulton went to Chicago and visited at Gavitt’s for a week. They had business relations for twenty years. Less than a month before he — 47 — flied, Mr. Moulton wrote to Mr. Gavitt as bis “Dear Cousin George,” thanking him a thousand times for a letter received -a few days before, and telling him about his feeble condition, .and closing with these words: “Please inform me the time or about the time you will again visit our Berlin friends. With brotherly love to yourself and cousin Minnie [Mrs. Gavitt] I am respectfully your cousin, IT. C. MoultoN.” Eriendly letters from Mr. Moulton to his nieces named in the will are ■also in evidence. Mr. Gavitt arrived in Berlin on the evening before the will was drawn, by reason of a long-distance telephone from a brother of the subscribing witness Wood, announcing that Mr. Moulton was sick and they would like to have him come up. There is nothing strange or unnatural in the fact of his going to Berlin at that time, and there is no evidence that he exerted or attempted to exert any influence over Mr. Moulton to induce him to make the will in question; much less any undue influence. This court has defined “un-flue influence in such a case” as “such an influence that the instrument is not properly an expression of the will of the testator in regard to the disposition • of his property, but rather an expression of the will of another person” (In re Jackmans Will, 26 Wis. 104); and that “motives of natural ■affection and gratitude on the part of the testator,” even when accompanied by “solicitations or arguments which appeal to such motives, do not constitute undue influence” (Id.; Deck v. Deck, 106 Wis. 472, 473, 82 N. W. 293). “To establish undue -influence sufficient to invalidate a will, it must be shown that the will of the testator was coerced into doing that which he did not desire to do.” Wingrove v. Wingrove, L. R. 11 Prob. Div. 81. So long as the will truly expresses the wishes of the testator, there is no ground for claiming that it was procured by undue influence. Here it appears from the undisputed evidence that the will did express the wishes of the testator at ■the time it was executed. Three days prior to that time he — 48 — had had an attack of apoplexy, and had been for a time unconscious. He naturally realized the seriousness of his condition and the necessity of preparing for the result likely to follow. His feelings towards the contestant — Anna—had manifestly changed. Affection, or even friendship, had been superseded by hostility. To whom would he naturally leave his property under such circumstances ? There is certainly nothing strange in the fact of his giving the bulk of his property to his particular friends Mr. and Mrs. Gavitt, and the balance to his nieces and nephew. He lived nearly two years, after the execution of the will in question. If the will had in fact been procured by undue influence, then he would naturally have changed or revoked the will after such influence had been withdrawn or removed. Gavitt did not remain in Berlin after the execution of the will, bnt returned to his home in Chicago. If the will was not changed or revoked during that time, then it may be fairly inferred that it did truly express the wishes of Mr. Moulton when executed. We must hold that the finding of the court that the testator was not under the undue influence of Gavitt or any other person at the time the will was executed is sustained by the evidence. 3. The remaining question to be considered is whether the will was revoked by the testator. There is no pretense that it was ever revoked by any other will, codicil* or writing executed in the manner prescribed by statute. Sec. 2290, Stats. 1898. That section of the statute provides that a will may be revoked “by burning, tearing, canceling or obliterating the same, with the intention of revoking it, by the testator or by some person in his presence and by his direction.” There is no direct evidence that the will in question was ever burned, tom, canceled, or obliterated at all, much less that any such act was done to the will by the testator “with the intention of’ revoking it,” or by any “person in his presence and by his direction.” Counsel for the contestant contend that where, as here, it is established that the will was last known to be in — 49 — the possession of the testator, and could not be found upon his death, it raised a prima facie presumption that he destroyed it with the intention of revoking it, and that the burden of doing away with such presumption was upon the proponent. The proponent concedes such to be the law; and it undoubtedly is the law. “Upon this proposition the question is,” as stated by counsel for the contestant, “Does the evidence of the proponent do away with this prima facie presumption ?” The will was in the custody of the county judge from the time it was placed there for safe-keeping by the attorney who drew it, September 13, 1898, until it was withdrawn therefrom by the testator, August 14, 1899. During those eleven months there is no pretense that he revoked it, or attempted to revoke it, or desired to revoke it. During that time he was apparently satisfied with the disposition which the will made of his property. There is no evidence that any one but the testator had the custody of the will after it was so withdrawn from the county judge. The testator lived about eleven months after the will was so withdrawn. The substance of the ninth, tenth, eleventh, and twelfth findings of fact are given in the statement. It appears from them that the testator was careless in keeping his papers; that he remained unconscious for several days immediately before his death; that the contestant had access to his rooms and papers while he was so unconscious; that the papers were then in a scattered condition throughout his room; that immediately after his death the contestant removed part of such papers from his rooms, and refused to return them until compelled to do so; that not long before his death the testator declared to divers different persons that his will was executed as stated and was still his will; and the court further found as a fact that the will had been lost by accident, either by the testator just prior to his death, or had been destroyed by de-sign or concealed by some other person soon after his death. The evidence seems to warrant such findings. True, the mere — 50 — fact that the contestant had an opportunity to destroy the will would not of itself overcome, the presumption that it was destroyed by the testator with the intent to revoke it; still it is a circumstance to be considered with other proof. Thus it is stated by a standard text-writer that: “If a will last traced to the testator’s custody cannot be found at his death, the presumption that he destroyed it for the purpose of revocation outweighs the probability of its fraudulent and criminal destruction by another when unsupported by any evidence except that of opportunity, though this latter circumstance is always worthy of consideration with other proof.” Schouler, Wills (2d ed.) § 402. To the same effect, Bauskett v. Keitt, 22 S. C. 187; Collyer v. Collyer, 110 N. Y. 481, 18 N. E. 110. Here there is much more than mere opportunity, as indicated by the facts stated. Resides, the evidence is ample to support the finding that the will was lost by accident. Whether it was lost by accident or destroyed by the design of others would be equally fatal to the contention of the contestant. The conduct and declarations of the testator show pretty clearly that he believed that he had possession of the will up .to the time of his death. He showed the sealed envelope in which the will had been placed to,his attorney in November •or December, 1899. In the foliowing January he missed the will, and on the 24th day of that month he made search for 'it, but was unable to find it. March 19, 1900, he told his attorney that he had lost his will, and that he would have to make another one just like it; and then stated the substance of the will, and that, if he did not find it, he was going to have it made over again the same way. In April or May he told his attorney that he had found his will, and showed him the sealed envelope in which it had been placed, and again showed it to him about the 1st of June. That such declarations of the testator were admissible on the question of the existence or nonexistence of such last will is abundantly supported by numerous adjudications. Southworth v. Adams, — 51 — 11 Biss. 256, 260; In re Steinke’s Will, 95 Wis. 121, 70 N. W. 61; In re Valentine’s Will, 93 Wis. 45, 55, 67 N. W. 12, and cases there cited. In the first of these cases the testator, while stopping with a stepdaughter at Whitewater, made his will, and retained possession of it. He was an old man, and careless about his papers. He resolved to visit relatives in Brooklyn, N. Y., and so bought a ticket and checked his trunk for that place. At the depot in Whitewater, and just before starting, he stated that his will was in his trunk. When he got to Chicago, he suddenly died. His trunk went on, and was finally stopped in Buffalo, and when returned to Chicago it was found to be open. A large open envelope was found therein, marked as containing his will, but no will was found therein nor in the trunk. In a learned and able opinion of Judge I)xee, the will was established as a lost will. Among other things, he there said: ’ “In this class of cases it was at one time somewhat questioned whether secondary evidence of the existence and contents of a will is admissible, and whether the declarations of the testator concerning the will may be shown to establish its contents and the probability or improbability of its destruction by him. It is now, however, fully settled both in England and in this country that such declarations are admissible, and that secondary evidence may be resorted to for the purpose stated.” The other cases cited are to the same effect. Such declarations showed an absence of any intention on the part of the testator to revoke his will. The presumption that he de•stroyed the will with such intent is fully overcome by the facts and circumstances in evidence. We find no reason for disturbing the judgment. By the Oowrt. — The judgment of the circuit court is affirmed.