Mueller v. Pew

Dodge, J. After careful examination of all the evidence, of much of which a summary is set forth in the statement of facts, we cannot bring ourselveá to the view that there is any such clear and overwhelming preponderance against the findings of the court as to justify us in reversing them under the rules so often declared. Of course, the declarations made by deceased tending to show the exertion of undue influence ever him by his wife were inadmissible and, even being admitted, were not evidence of the facts so narrated by him. Loennecker’s Will, 112 Wis. 461, 88 N. W. 215. The testimony to admissions made by proponent was denied by her and the conflicting witnesses were before the trial court for its observation. The transactions attending the giving of directions to the scrivener and the execution of the will, all in the absence of the proponent, strongly refute that coercion and duress destroying the testator’s freedom of will and action which is necessary to support the charge of undue influence. It is not sufficient that testator’s reason is convinced by persuasion ■or argument, if it is by his own will and intention that he carries that decision into effect. In re Jackman, 26 Wis. 104; Deck v. Deck, 106 Wis. 470, 82 N. W. 293. On the question ■of mental capacity there is undisputed proof of many actual transactions by the testator near and subsequent to the date •of the will entirely inconsistent with that state of mental decadence and inability which incapacitates one to make a will. These might well have convinced the trial court of his competency as against even less doubtful opinion evidence than that introduced by contestants in this case, especially referring to that of the medical experts which was based on the much disputed hypothesis of inability to remember or talk coherently. In re Butler's Will, 110 Wis. 70, 78, 85 N. W. 678. [292] Further discussion of these questions of fact would be unprofitable. It is all summed up in the statement already made-that we find no preponderance of evidence against the findings and therefore cannot disturb them. No reversal can be predicated on declining to take verdict of the jury. Such verdict would have been advisory merely., leaving the duty still upon the trial court to decide all questions of fact according to his own judgment. How the situation could have been varied to the benefit of appellants by receiving such a verdict is not apparent. A motion for new trial on the ground of newly-discovered evidence was predicated on an affidavit of one of contestants’ witnesses that, after giving her testimony, she was offered a thousand dollars if she would reverse it. There is nothing but suspicion to suggest that the offer came from any one in the interest of the proponent. Hence such testimony would be wholly inadmissible if a new trial were granted. There was also an affidavit of an employee of one of the contestants to the effect that he saw proponent tear up a typewritten paper the morning after her husband’s death, and heard her say to her daughter: “This is the last one. Now let them look if they want to.” This is supposed in some way to justify a suspicion that such paper may have been a later will. It is entirely obvious, however, that, in the absence of very much more direct evidence of the existence of such a document, this testimony could by no means establish it. Hence no different result could be expected if such testimony were admitted. It should perhaps be said that the statement of this employee was very thoroughly contradicted, both by direct evidence and by circumstances, and his character was shown to be such as to entitle his statements to very little weight. Without considering the more technical grounds which would support the conclusion of the court on this motion, we-think it was properly overruled for the reasons above stated. By the Oourt. — Judgment affirmed.