Trieloff v. Muellenschlader

SiebeokeR, J. On its face the paper writing, propounded as the last will of the deceased, presents all the legal formalities requisite to a proper execution of a will, but the circuit court denied probate to it, assigning as one of the grounds “that it is impossible to determine certainly whether the deceased was fully conscious of what he was doing when he signed it (made his mark), or whether or not he was conscious of the fact of the signing by the witnesses.” The facts — 370 — established by tbe evidence are set forth in the foregoing statement of facts. The court evidently concluded that the deceased had the mental capacity and was capable of making a will at the time Mr. Sutherland arrived and conferred with him concerning his property, the provisions of the will, and the persons to whom he wished to bequeath it. The evidence clearly shows that immediately after the arrival of Dr. Palmer on his 4 o’clock visit the deceased conveyed his wishes and instructions concerning this subject to him in a perfectly intelligent and rational manner, indicating clearly that he then had a full understanding and comprehension of this suU ject. Respondents contend that from the time the' doctor saw him at 4 o’clock it is apparent that the deceased was so weakened from pain and suffering, and that his mental strength had so rapidly waned, that he had not “sufficient ac ■ tive memory to collect in his mind, and comprehend without prompting, the condition of his property, his relation to his children and other persons who might be the beneficiaries, and the scope and bearing of his will, and to hold these things in his mind for a sufficient length of time to perceive their obvious relations to each other, and be able to form some rational judgment in relation to them.” The direct evidence on this question is limited to that furnished by the three witnesses who were present when the proposed will was prepared and executed. Their evidence as to what occurred and as to what the deceased said and did is in accord up to the time of the signing of the instrument. It is clearly established that he freely communicated with Mr. 'Sutherland in the presence of Dr. Palmer and Mr. Trieloff, gave directions as to the disposition of his property, named the beneficiaries, designated the amounts he wished to bequeath to each, and •described the specific property of each bequest. He informed them, in a clear and positive manner, of what property he had, its nature and whereabouts, and expressed approval separately of each bequest after it had been written and read to — 371 — •him. Upon these points, in the transaction of the making of this instrument, the evidence of these witnesses is in accord and as to what actually occurred-and as to deceased’s participation in them. There seems but one inference which can be drawn from all the facts and circumstances, namely, that up to the point of the signing and attestation of the instrument the deceased was possessed- of sufficient mental capacity to make a will. The court, however, held that it was not shown that this state of his mind persisted to the conclusion of the transaction and that he consciously and understandingly participated in the final execution of the instrument. We must turn to the evidence of these witnesses as the only -direct testimony on this branch of the case. The witnesses Sutherland and Trieloff testify positively that the will was fully written and completed as directed by the deceased; that it was then read to him as a whole; that he understood it and •declared that it expressed his will; that he signed it by making his mark in the manner described by them and Dr. Palmer; that he called Mr. Sutherland’s attention to the fact that no one had been designated in it as executor, and that he thereafter indicated that he wished his business partner, Trie-lojfj named as executor, and that he pointed him out as present in the room; that Trieloff’s name was then inserted and the will was signed by Dr. Palmer and Mr. Sutherland on a table placed near his bedside, and in the immediate presence •of the deceased; that Mr. Sutherland then inquired of him whether he should deposit the instrument for safe-keeping with the county court or keep it in his safe, and that the deceased then directed him to keep it in his custody. Most of these material facts are not expressly denied by Dr. Palmer, but he states that after deceased had attached his signature he immediately reclined upon the bed, manifested no active participation in what transpired when he and Mr. Sutherland signed, that the deceased was then very weak and low, — 372 — and that death followed in a very few moments. On direct examination he expressed it as his opinion that the deceased was of sound mind. Upon cross-examination he gave it as his opinion that during the time the transaction took place he had not sufficient mental capacity to make a will. In addition to the direct evidence of these three witnesses there is the opinion evidence of the physicians who testified as experts in support and denial of the fact of the deceased’s testamentary capacity. An examination of the evidence given by Dr. Palmer shows that he took an active part, at the request of the deceased, in having the will made and drawn, assisted him in procuring an attorney, and discussed with him the nature of his property and the disposition he wished to make of it. He detailed facts and circumstances showing that the deceased gave him a comprehensive understanding of his purpose, that the deceased directed all the provisions of the proposed will, and that he declared it to be and signed it as his will, and that he (the doctor) signed his name as an attesting witness in the presence of the deceased and. the other witness. He also stated to Mr. Sutherland at the commencement of the transaction that the deceased was of sound mind, and upon the trial he stated that he believed his mind was sound when this writing was drawn and signed, but that, in his opinion, the deceased had not sufficient mental capacity to make a will, and that he took no conscious active part in the attestation of the document. The facts and circumstances, as detailed by him, clearly contradict his opinion statements that deceased had not sufficient testamentary capacity and took no conscious part in the attestation. As indicated in Winn v. Itzel, 125 Wis. 19, 103 N. W. 220: “Certainly such testimony is thoroughly impeached by the witness himself.” Loughney v. Loughney, 87 Wis. 92, 58 N. W. 250. All the other evidence, except that of the experts, points clearly and directly to the one conclusion that the deceased' was possessed of testamentary capacity, and that he consciously, participated in the — 373 — completed execution of the instrument, and thereafter gave express direction for its safe-keeping and custody. It is urged, however, that the fact of testamentary capacity is sufficiently rebutted hy the opinions of the experts as to his mental incompetency, and hy the facts and circumstances tending to show that the deceased was so weak from sickness that he was in a condition “almost reaching that of profound shock.” We do not find these circumstances and the opinion testimony of sufficient weight to throw any uncertainty upon this fact. The opinions expressed by the experts were predicated on conditions, many of which we have shown did not exist, and they therefore are of slight weight in face of the actual facts upon which the contested issues must be determined. A consideration and study of the evidence leads us to the conclusion that this finding of the trial court is against the clear preponderance of the evidence. The court also found that the circumstances surrounding the giving of the legacy to Charles Trieloff were “such as to call upon him for explanation and a showing that the same was a free, voluntary, and intelligent act of the said deceased, which has not been done.” This determination of the court is preceded hy a recital of facts, stating that the legatee, Charles Trieloff, and the deceased were and for a number of years prior to the making of the propounded will had been co-partners in business, and as such a confidential relation had existed between them; that Trieloff visited the deceased frequently during his sickness, and did so four times on the day ■of his death; that he had in his possession the several certificates of deposit and the bank book of the deceased; and that nothing is shown suggesting any reason why deceased “should have given said legatee the legacy specified in said instrument.” It is apparent that the trial court regarded these facts and' circumstances as a prima facie showing that this legacy was procured hy the-undue influence of Trieloff. There is no other evidence on which such an inference can — 374 — rest. If no sncb inference is justifiable, tben Trieloff was not called upon to explain and sbow that this bequest was a free and voluntary one by the deceased. “The field for the operation of undue influence or fraud being shown, together with satisfactory indications that the operation has taken place, then from that situation springs the presumption of fact that the person charged with the wrongdoing must meet and overcome by showing affirmatively that there was no wrong. A presumption against a person charged does not exist from the mere fact that there is such a charge, but because of facts and circumstances appearing which satisfactorily suggest wrong, and it is not till such facts and circumstances appear that it can properly be said the burden of proof to disprove wrong is on the person charged.” Small v. Champeny, 102 Wis. 61, 78 N. W. 407. A consideration of all the evidentiary facts and circumstances material to this finding fails to show or suggest that Trieloff did, or attempted to do, anything to induce or persuade the deceased to make a will or to make him a beneficiary, should one be made. All the facts suggested by the court as the basis for such an inference cannot only readily and naturally be explained as in perfect harmony with Triel-off s exemption from wrongful conduct in the respect charged, but, when considered in the light of what actually took place, there is an entire absence of any wrongful purpose or the actual doing of any act indicating that he was attempting to influence the deceased in disposing of his property. Considerable stress is laid on the fact that Trieloff called on him four times on the day the instrument was drawn and that he held confidential interviews with him. True, he called; but it appears that he did so in response to requests from the deceased and from persons at the house, and there is nothing to show that the act of making a will was considered or spoken of by them, or that Trieloff had an opportunity before his last visit, when the will was about to be prepared, to communicate with the deceased concerning the making of a will. So — 375 — far as shown, he first learned of this after the deceased had conferred with Dr. Palmer on the subject and had told him that he wished to leave some of his property to Trieloff. The conduct of the deceased when he made this instrument and directed its provisions in Trieloff s absence indicates that he was free from all restraint or compulsion and was acting freely, voluntarily, and deliberately. It is contended that the provisions of the will for the widow and children indicate that he was unduly influenced to deprive them of what he would naturally have bestowed upon them had he acted freely and voluntarily. We are unable to find any sound basis for this contention. He seems to have made such provision for them as in his 'judgment seemed just and proper. This leaves the conclusion that a prima facie case of undue influence is shown. against Charles Trieloff without support in the evidence, and the court erred in holding that he was called upon to meet and overcome such a showing. By the CouH. — The judgment is reversed, and the cause is remanded with directions that the -court enter judgment admitting the instrument propounded as the will of Herman Muellenschlader to probate, and for further proceedings according to law.