Lauburg v. Ihmig

Siebeckjsr, J. It is contended that the trial court erred in permitting three of decedent’s daughters, who have an interest in her property under the will, to testify to transactions and communications had by them personally with the deceased. The evidence objected to was to the effect that the decedent had conversation with some of her children on several occasions at her home; that these witnesses.were present; that they did not take an active.part in the conversations; that the decedent stated in effect that she had made a will disposing of her property and that she had provided for Fred. It appears that thesi conversations were general and addressed to those within hearing. The circumstances under which the words were spoken and the nature of the communication show that they were in substance a personal communication between the deceased and those who were present and heard them, and hence come within the prohibition of sec. 4069, Stats. The facts covered by this testimony were, however, shown by other competent witnesses whose testimony is uncontradicted, so that the improper admission of these communications and conversations was not prejudicial. We have examined the other exceptions to rulings of the court admitting evidence over appellants’ objections and find they were proper, and no detailed discussion of them is deemed necessary. The [505] principal issue on this appeal is presented by the claim of the appellants that the evidence does not sustain the trial court’s findings that the will made by the decedent on May 5, 1915, was not revoked by her during her lifetime and that it is entitled to be established and probated as her last will. The record shows that the trial judge is sustained in holding that the material facts of the case are not in dispute. Upon the. undisputed facts he found that the testator was an intelligent person; that she knew when she made her last will on May 5, 1915, that she revoked her former will and that if she died intestate all of her children and the children of her deceased daughter would share equally in her estate; that she was fully aware of Fred’s dependency and appreciated the sacrifices of her daughter Lillian in staying home to assist testator in caring for the invalid father and brother, Fred, through a long period of years after arriving at her majority; that the testatrix up to the time of her death intended to make provision for Fred and Lillian as she did make it in both wills; that a short time before her death she obtained her last will from the custody of her attorney for the purpose of placing it in her safety-deposit box at the bank; that she understood the first'will, which she left in this deposit box in an envelope, was revoked by the second will and that she intended to destroy it; that through inadvertence or otherwise she left it in such box, removed from the envelope, which empty envelope was found in this box; and that the last will could not be found. Many of the circumstances shown by the evidence are persuasive and clear in their implication, which support the findings of fact of the circuit court. The appellants, however, insist that the evidence is not of sufficient probative weight to overcome the prima facie presumption, predicated on the loss of the will, that she destroyed it with the intention of revoking it. Valentine’s Will, 93 Wis. 45, 67 N. W. 12; Estate of Johnson, ante, p. 436, 175 N. W. 917. The facts and circumstances disclosed by the evidence [506] tend to show that the testatrix up to the time of her death had made declarations tending to show the existence of her will and had no intention of revoking her second will, and that she steadfastly adhered to her purpose of providing for her son Fred and her daughter Lillian as she had done in this will. In the light of the evidence we cannot say that the trial judge’s findings of fact are against the clear preponderance of the evidence. We think the trial court was justified in concluding that the prima facie presumption that the will had been destroyed was overcome by the facts and circumstances adduced in evidence. Steinke’s Will, 95 Wis. 121, 70 N. W. 61; Gavitt v. Moulton, 119 Wis. 35, 96 N. W. 395. By the Court. — The judgment appealed from is affirmed.