Drinkwine v. Gruelle

Cassoday, C. J. It is evident that tbe intestate was an eccentric man, witb peculiarities of temper, disposition, and habits. He was easily excited, and became angry at trifles, and was strong in bis prejudices, and set in bis notions. His qualities of bead and hear^were necessarily known to bis children, as indicated by their intercourse at times and want of intercourse at other times. But tbe trial court held, and counsel concede, that there is no evidence “of such mental unsoundness as would warrant tbe court in finding that tbe deceased was incapable of executing tbe instruments in question.” Having tbe mental capacity to execute tbe mortgage and deed in question, it must be conceded that tbe intestate bad tbe legal right of bis own free will to convey bis farm to whomsoever be pleased, regardless of tbe moral obligations-which parents ordinarily feel toward all their children. It may be questionable whether tbe intestate was ever impressed with any such moral obligations. Years before bis wife died be bad voluntarily conveyed tbe farm to bis son George, witb no expectation of receiving anything in return except care and support. George was unmarried, and about thirty-five years of age, when bis mother died. Upon tbe death of bis mother be and bis father were left alone on tbe farm. Manifestly, bis experience bad been such that be did not wish to remain longer on tbe farm. Years before be bad received a deed of tbe farm from bis father, and returned it to him to keep for him, and never asked for it nor received it after-wards. Tbe intestate was seventy-six years of age when bis wife died, and tbe next day after her funeral be asked bis eldest son, Larry, Jr., what would be tbe best thing for him to do in view of tbe fact that be bad nobody to keep bouse for him; and Larry told him that be “thought tbe best thing [632] be could do was to get Otto to stay oa the place, and he could work the place — rent it or work it any way to his satisfaction,” and that then was the time to make the arrangement with Otto and Villa, who were present; and the intestate then said that he would like to have Otto and Villa stay with him, and keep house, and do the work, and that, if they did, at least for the winter, he would pay them what was right; and an arrangement was then made, and the defendants then moved upon the place, and they ^smained there until he died. The intestate had but two daughters, and it was natural that he would want to live with one of them. About seven months after the death of the wife the intestate gave to Otto the mortgage in question, and nearly four years after that he gave to him the deed in question. The precise consideration of the mortgage and deed in question does not appear. The offer of the testimony of the defendants tending to show such consideration, or the agreement upon which such mortgage and deed were given; was excluded by the court on the ground that it called for transactions between them and the deceased within the meaning of sec. 4069, Stats. 1898. And yet the plaintiffs had previously called the defendants, and examined them as adverse parties, under sec. 4068, as to the giving of the mortgage and the deed by the deceased to the defendant Otto; that the only consideration paid therefor was the support and care of the old man for the last five or six years of his life and his doctor’s bills and funeral expenses and $15 in money; that the defendants went with the deceased to town at the time the mortgage was executed, and 'also at the time the deed was executed; that Otto received a transfer of the personal property before he received the deed; and that in consideration of the mortgage the defendants were to support and care for the deceased during the last five years of his life. We are constrained to hold that by such adverse examination the plaintiffs, under the statutes cited, opened the door for the admission of the testimony of the defend [633] ants offered, tending to prove that the consideration for the mortgage was an agreement on the part of the defendants to support and take care of the deceased during the remainder of his life — provide food, and necessary clothing, medical attendance, and a decent burial; and that a similar agreement ■was the consideration for giving the deed; and that the exclusion of such testimony was error. To sustain this judgment it is necessary to hold, as the trial court did hold, that the deceased was induced to execute the mortgage and the deed by the undue influence of the defendants over him, It is certain that the defendants moved onto the place at the request of the deceased, and rendered services, care, and support for him for more than five years, while the other children rarely visited him. The conduct of the defendants may, in part, account for their absence, but the fact nevertheless remains. The deceased was certainly under some obligations to the defendants for such services, care, and support. Influence or importunity, to be undue, must destroy, or at least impair or prevent, free agency. Even in the case of the execution of wills, where the testator is not supposed to be under any legal obligation, this court held many years ago: “Undue influence in such a case is 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. Motives of natural affection and gratitude on the part of the testator, and solicitations or arguments which appeal to such motives, do not constitute undue influence.” In re Jackman's Will, 26 Wis. 104, 111-114; Deck v. Deck, 106 Wis. 470, 472, 473, 82 N. W. 293. It sufficiently appears that the deceased was in the habit of exhibiting his free agency on numerous occasions. He was repeatedly angry at the defendant Otto. On one or two occasions he went so far as to take an ax at him. It manifestly required tact and skill and patience to get along with him. [634] The deed was executed about nine months prior to his death,, the immediate cause of which was pneumonia. The man who-drew the deed testified to the effect that the deceased came to his office alone, and asked him if he was a notary public, or could make a deed; that he told him he could; that he-then said he wanted to make a deed to the defendant Otto y that he then went out, and said he would be back in a few minutes; that he soon returned with the defendant Otto,. and said he was ready to make the deed, and gave to the notary the instructions concerning the deed; that the notary wrote the deed for him, and asked him if there was a. mortgage on the place, and he said there was, and he was giving the deed to satisfy the mortgage, and he thought it was so-stated in the deed; that one of the two persons who subscribed the deed as witnesses wanted to know what the paper was; that the notary then read the deed over a second time-before it was signed, and asked the deceased if that was his own free will, and he said it was; that he then asked him if he had been coaxed into it, and he said he had not; that the deceased seemed to understand it perfectly; that the defendant Otto was in the room, but said nothing. Neither of the-subscribing witnesses to- that deed were examined or called. The undisputed evidence as to the facts and circumstances-attending the making of that deed preclude any inference that the deceased was induced to execute the same by fraud or undue influence. Besides, the deed had been on record for nearly nine, months when the intestate died, and the mortgage had then been on record for four years and seven months. The deceased frequently, and for years, had stated that the place belonged to Otto. The plaintiffs, or at least three of them, knew for years prior to their father’s death that the defendants claimed to own the place. The only pretense of concealment is that the defendants, or one of them, stated to the plaintiffs and others that they had bought the place, and paid $3,000 in cash for it, which they had bor [635] rowed. That they so stated that they paid in cash, however, is denied. There is evidence to the effect that the deceased made similar statements. At the time the mortgage was given the value of the place appears to have been about the amount stated in the mortgage. In view of the strained relations of some of the partios, it is not very significant whether such statements were made or not. Their bearing upon the question of undue influence is, at most, remote. The same is true as to the story about George having forged a note, and Viola not having been lawfully married. There is no pretense .of the deceased having been prejudiced against the plaintiffs Larry, Jr., or John. None of the plaintiffs appear to have questioned their father in respect to his having-given the mortgage or the deed. We fail to find evidence-sufficient to support the findings of undue influence. Such findings seem to rest largely upon the existence of ill feeling and opportunity to stimulate ill feeling. But judgments, in such cases, are not to rest upon mere suspicion and assumption. The case differs broadly in its facts from those relied upon to support the judgment. See Disch v. Timm, 101 Wis. 179, 191, 192, 77 N. W. 196, and cases there cited. The principles of law applicable to the facts in this case- are-sufficiently covered by recent adjudications of this court. Fox v. Martin, 104 Wis. 581, 80 N. W. 921; Deck v. Deck, 106 Wis. 470, 82 N. W. 293; Loennecker's Will, 112 Wis. 461, 88 N. W. 215; Vance v. Davis, 118 Wis. 548, 95 N. W. 939. We must hold that the findings of undue influence are-not sustained by the evidence. By the Court. — The judgment of the circuit court is reversed, and the cause is remanded with directions to dismiss, the complaint.