Wendt v. Ziegenhagen

Kerwin, J. The contention of the appellant for reversal is that the evidence is not sufficient to overcome the presumption of destruction of the will by deceased animo revocandi. The questions covering this contention were submitted to the-jury and answered in favor of the. respondent. The verdict of the jury was approved by the court and further findings made, which appear in the statement of facts. The proceeding to probate the will in question is based upon sec. 3791, Stats. (1898),’ which provides for the establishment of a lost or destroyed will. Counsel for appellant rely upon the proposition of law that when a will cannot be found, after the-death of the testator, there arises a presumption that it has; [388] been destroyed for tbe purpose of revoking it. But this presumption may be overcome by evidence, the burden being upon the proponent. In re Valentine's Will, 93 Wis. 45, 67 N. W. 12; Gaviti v. Moulton, 119 Wis. 35, 96 N. W. 395. Sec. 2290, Stats. (1898), provides that no will shall be revoked unless by burning, tearing, canceling, or obliterating with the intention of revoking it, by the testator or by some person in his presence and by his direction, or by some other will or codicil in writing. The undisputed evidence shows that William Ziegenhagen duly executed his will June 9, 1900, and died January 21, 1909, and that after his death his will could not be found. There is no serious dispute as to the contents of the will. So we come to the only question in the case, namely, whether the presumption of revocation has been overcome. The verdict of the jury and the findings •of the court below are so full and explicit that no further statement of facts is necessary. We therefore approach the •question whether the evidence is sufficient to overcome the presumption of revocation and support the findings. The ■only reason which can be perceived for destroying the will with intent to revoke it, upon the established facts, is the purpose to give Fred, son of William Ziegenhagen, deceased, upwards of $2,000 more than he had received before his father’s death. As shown by the evidence and the findings, Fred had been given the bulk of his father’s property before execution of the will. It also appears from the finding that after the transfer of the property to Fred his father commenced two lawsuits against him. The first was settled and the other went to judgment, and the amount of said judgment was paid by Fred. It is also established that the only property which Augusta Wendt received during the lifetime ■of her father, William Ziegenhagen, was $1,000 in money and $30 worth of furniture, and that the value of the real estate owned by deceased at the time of his death was $3,000 and the personal property $2,400. The relations of the parties, [389] therefore, and all the facts established by tbe record support tbe idea that no reason existed at any time after tbe execution of tbe will for changing it so as to give Fred any portion of bis father’s property other than that received by him before tbe execution of tbe will. Moreover, tbe evidence appearing in tbe record is ample to support tbe findings that deceased did not revoke bis will. Tbe evidence clearly shows that tbe deceased, many times after tbe execution of tbe will, recognized its existence, and not only manifested no disposition to change it, but affirmatively asserted that be did not wish to change it, — that it was all right and should so remain. Tbe will remained with bis attorneys for about six years after its execution and until about three or four years before tbe death of said Ziegenhagen, at which time be took it from bis attorneys’ office, stating that be bad no intention of changing or destroying it or making a new one. It also appears that after deceased transferred to bis son Fred tbe farm of 180 acres together with tbe personal property mentioned in tbe findings, be left tbe farm, and his wife, Marie Ziegenhagen, remained with Fred until be married, when she again went to live with her husband. Tbe evidence shows that Augusta, Wendt was at all times on tbe most friendly terms with her father and performed services for him at various times, and that be often stated that she was to have bis property after bis death. In a conversation which deceased bad with one Glock a year or two before bis death Glock stated that be bad bad lots of trouble with bis wills, and told deceased that be would have to look out that be made bis right, and deceased replied, “Mine is all right made,” and asked Glock whether it would be necessary to record it. Several other statements are related in tbe evidence in which deceased said that bis daughter, Augusta Wendt, was to have bis property after bis death,' and that Fred bad already received enough. In one conversation during tbe last years of bis life when bis wife, who apparently from tbe record was partial to Fred, spoke to [390] him about changing his will, deceased said that he would not make his will over. The evidence also shows that during the last year of his life, when Augusta, Wendt’s daughters were helping deceased clean house, papering, and painting, he said to them that he could not pay them, but that the property was their mother’s and that they would have it some day. He ■also made similar statements with reference to improvements and repairs being made by them upon the property. But', without further recital of the evidence, it is sufficient to say that it is ample to support the verdict of the jury and the findings of the court below to the effect that the deceased did not destroy his will with intent to revoke it. Adams v. Rodman, 102 Wis. 456, 78 N. W. 588, 759; Ewing v. McIntyre, 141 Mich. 506, 104 N. W. 787; Aikin v. Weckerly, 19 Mich. 482; Bauskett v. Keitt, 22 S. C. 187; Schultz v. Schultz, 35 N. Y. 653; Rood, Wills, § 357 and cases cited. Where the will was kept, after having been removed from the' office of the attorney who drew it, does not appear. There is evidence that Mrs. Ziegenhagen did not know the terms of the will, but believed a will had- been drawn by her husband, and stated in a conversation with her granddaughter that she thought the law was wrong that allowed a man to make a will and not let his wife know about it. The court found that deceased kept his papers locked in a drawer in a closet, and the evidence shows that sometimes the key to the box was carried by him and sometimes was left in the pocket of his clothes hanging in the wardrobe. It seems that during his last illness he had the key in his pocket on his person and that Mrs. Ziegenhagen took it, and that she and her son Fred had ample opportunity to get possession of the will if it was in the locked box. Deceased had a paralytic stroke and remained with his wife about two days before any one was notified, and died shortly thereafter. It is claimed by respondent that during this last illness Mrs. Ziegenhagen, after obtaining the key, removed and se391 ■ereted the will, or destroyed it, or that she and her son Fred -did so. The conrt and the jury found that Mrs. Ziegenhagen ■and her son Fred, or either of them, either prior or subse-quent to the death of William Ziegenhagen, destroyed or suppressed the will, or caused the same to be done, without the knowledge or consent of deceased. It is contended on the part of the appellant that the evidence is not sufficient to support the finding to the effect that the will had been destroyed by Fred and Mrs. Ziegenhagen, or either of them, because the law requires more than a preponderance of evidence upon ■such an issue. We do not think it necessary to consider or .decide this question. The findings are ample and well supported by the evidence to fully overcome the presumption that •deceased destroyed his will with intent to revoke it. That is sufficient for this case. It follows that the judgment must be ■affirmed. By the Court. — The judgment is affirmed.