Anderson v. Laugen

Siebecker, J. Appellants urge as error a number of rulings upon the reception and rejection of evidence. It is complained that the court refused to permit some of the contestants to testify as to numerous statements and transactions with the deceased personally, or with some one of the other contestants in their presence, and that the court erroneously struck out evidence of like nature. An instance of the class of evidence excluded by the court is the following: The daughter Emma testified that she did not remain at home after her father secured the services of his niece. In ex — 61 — planation of this she was asked: “Q. Did you ever tell your father or offer to him to come home again and take care of your mother at home?” An objection to this question was sustained upon the ground, among' others, that it called for transactions or conversations with the deceased. The ruling was clearly correct, under sec. 4069, Stats. 1898. Proponent had in no way waived the right to insist upon this objection, and the evidence was therefore properly excluded. The court excluded other declarations and transactions between deceased and some of his children in the presence of other children, who were called to testify on the subject. It is claimed that this testimony was competent, under the ruling in Wollman v. Ruehle, 104 Wis. 603, 80 N. W. 919, where it was held that this statute “does not forbid testimony of transactions or communications between the deceased and third persons, though in the witness’s presence, if he did not participate therein, and they were not affected by his presence.” It will be observed that, to make the witness edmpetent, it is essential that he did not participate in the transactions or communications, and that they were not affected by his presence. These conditions become most important when the witness is a party and interested in establishing the communication in support of his contention in the controversy. The record does not justify the assumption that the witnesses, who were adverse parties to the proceedings, did not participate in the transactions or communications sought to be established by them, or that they were not affected by their presence. It also appears that other evidence was received, subject to objection, which covered the facts suggested as embraced in these transactions and communications. This evidence was not stricken out or excluded by the court from its consideration in finding the facts upon the controverted issues. Brader v. Brader, 110 Wis. 423, 85 N. W. 681; Morgan v. Henry, 115 Wis. 27, 90 N. W. 1012. Other exceptions are urged to rulings excluding some state — 62 — ments of Hannah Green tending to show she was active in keeping the children and father separated: and also to rulings excluding explanations of the children as to why they -did not minister to their mother’s comfort in the years before her death. These facts were so remote in point of time, and of such slight relevancy, if any, that their admission would afford practically no weight in determining the issues between the parties. The testimony of Henry Anderson was received over objection as to his competency, under sec. 4069, Stats. 1898. As heretofore stated, he was designated by the deceased in the proposed will as the executor, and is the proponent of the will in this proceeding. This section, as amended by eh. 181, Laws of 1901, provides: “No party in his own behalf or interest and no person from, through or under whom a party derives his interest or title, shall be examined as a witness in respect to any transactions or communications by him personally with a deceased person . . in any civil action or proceeding in which the opposite party derives his title or sustains his liability to the cause of action from, through or under such deceased person,” etc. The question arises: Is Mr. Anderson, the executor named in and the proponent of the alleged will, incompetent to testify to personal transactions or communications with the deceased in the proceedings for the probate of the will ? It appears that he is not a legatee. If he is an incompetent witness, it must be as a party to the proceeding for the probate of the will. The statute, before the amendment in 1901, declared in unqualified terms that “no party” to an action or proceeding shall be examined in respect to a personal transaction or communication with a deceased person under the circumstances covered by the statute. It would seem that the statute as it then stood embraced all persons who properly appeared as parties on the record to an action or proceeding. ^Executors and administrators have been treated as parties to — 63 — such proceedings in this state, though their interests differ from those of the heirs and the legatees and devisees under wills. Kasson v. Brocker’s Estate, 47 Wis. 79, 1 N. W. 418; Sawtelle v. Ripley, 85 Wis. 72, 55 N. W. 156. But the amendment provides that no party shall be’ examined as a witness in his behalf or interest under the circumstances mentioned in the statute. This surely was intended to modify the terms of the statute in some respects. It seems evident that the purpose of the amendment was to limit the original language of the section, which embraced all parties. The words of limitation indicate that the legislature intended to restrict its operation to parties who had a beneficial interest in, or sustained some liability under, the subject matter of the controversy. Tested under this rule, the person named as executor in a proposed will, who appears as proponent in a contested proceeding, with no other interest in the estate of the deceased, has no beneficial interest in, nor sustains any liability under, the subject of the controversy, though he is a nominal party to the proceeding. Up to the time of the probate of the will, he could have no vested or contingent interest in the subject of the controversy, because he is not then-executor, and can only become such after probate of the will and the issuance of letters testamentary. If he is then called as a witness in the proceeding for the probate of the will, he cannot be deemed to testify as a party in his own behalf or interest. Upon these considerations we hold that Henry Anderson was a competent witness in the proceeding for the probate of the will. It is contended by appellants that the execution of the will was procured by the exercise of undue influence over the de-ceased by Edan and Hannah Green, the beneficiaries. To sustain this contention it must appear that there was such influence exercised as to amount to moral coercion, which resulted in destroying the testator’s free will and independent action, and constrained him to act against his will and in — 64 — dependent wishes in disposing of bis property. Contestants lay much stress upon the claim that the evidence clearly shows that the beneficiary Hannah Green had an undue influence over the deceased in persuading him to yield to her wishes and importunities in bestowing favors and pecuniary benefits upon her. It is claimed that she manifested a disposition to unduly persuade him to disregard his duty toward his children, and that she had full opportunity to carry out her wrongful purpose of depriving them of the natural bounty of their father, and that she wrongfully persuaded him to believe that they would not care for him in his old age, and that she thereby induced him to live with her and her husband upon the condition that he devise his estate to them. The evidence shows that the deceased was of sound mind and fully capable of making a will. It is insisted that the beneficiary Mrs. Green was enabled to exercise this undue influence over the deceased because they lived in adulterous relations after she came to his home with him from Europe. The assertion is not borne out by the proof. All the facts and circumstances of the case tend to refute it. As appears from the foregoing statement of facts, the deceased was an uncle of Mrs. Green. He was esteemed and respected by those who knew him intimately. He obtained the consent and approval of her parents to have her perform the household duties for him and to care for Mrs. Laugen in her enfeebled condition. This she did for a year after she came from Europe. In the following year she was married to Mr. Green, and for a number of years they lived together and worked the farm of the deceased under an agreement, caring for his invalid wife and maintaining him in his home. All the facts and circumstances of the life of the family, consisting of herself and husband, a family of children, and the deceased, fail to raise any suspicion of an adulterous relation. The claim rests upon the bare assertion of one of the contestants, v/ho states that shortly after his father returned from Europe, he on one — 65 — occasion observed relations of an adulterous character. An examination of the evidence shows that it does not establish the fact, and that the trial court, must have so found in determining the issues. It is furthermore asserted that she unduly importuned the deceased to return to the home of the Greens in the month of July, 1901, and induced him to make the will in question. This contention is also untenable upon the evidence. In so far as there is any testimony upon these subjects, it strongly tends to show that Mr. and Mrs. Green were reluctant to again take the deceased into their home after his absence of about two years; and that it was the free wish and desire of the deceased to live with them under the arrangement expressed in the written contract. The declarations of the testator at various times to different persons, when he was under no coercion or restraint to speak his free will and desire in the matter, is in accord with these conclusions from the facts. Another reason urged showing undue influence is that it is unnatural for a father to disinherit his children and bestow his bounty upon strangers. Ordinarily, the argument possesses merit, but it has no force in this contest, in view of the facts of the case. As stated, the contestants and their father did not maintain and live in the usual .friendly and helpful relationship of parent and children, and the deceased found in his niece, Mrs. Green, and her husband the willing hands to help him when trouble and misfortune overtook him and the infirmities of old age were at his door. Under the circumstances it cannot be said that he bestowed his property upon persons who had no claim to his bounty. He had depended upon them, and they had helped him at times, which brought them into relationship as close as family ties; and in the end he exercised the care and prudence of arranging with them, as a condition of making the will, that they must maintain and comfortably support him for the remainder of his days. An attentive perusal of the evidence and a full — 66 — consideration of tbe facts leads to tbe conclusion that tbe trial court must be sustained in its conclusion that no undue influence or restraint was exercised over tbe mind of tbe deceased when be made and executed tbe will in question. By the Court. — Judgment affirmed.