Hayden v. Nuzum

SiebeckeR, J. It is contended that the court erred in finding that no undue influence was exercised upon the testatrix to procure her to make and execute this will and codicils. The record fails to show that any improper attempts were made to persuade or induce Mrs. Keenan to make these testamentary dispositions of her estate or °that any undue influence was exercised that misled or improperly influenced her to do so. Upon this issue in the case the trial court’s conclusions are clearly right and cannot be disturbed. The important controversy of fact litigated in the case is: Was Mrs. Keenan of sound and disposing mind when she executed the instruments propounded as her last will and the codicils attached thereto ? The foregoing statement recites the leading incidents and facts of her life which bear on this inquiry from the time of her husband’s death 'in 1898 to the time of her death. The evidence discloses that she had characteristics that led her, without apparent justification, into unreasonable, arbitrary, and harsh conduct in dealing with her relatives and those persons who served her most faithfully in promoting her best interests and comforts in sickness and distress. These attributes of her — 102 — nature seem to have sprung from her penuriousness, avarice, perversity, and violence of temper. It is manifest that these personal traits were intensified and less within her control, by reason of impaired health and strength, from and after 1907, and that her physical and mental feebleness seriously affected her from this time to the time of her death. The testimony also shows that she developed vagaries and illusions, and that reason and expostulation concerning them failed to impress her of their unreality or that they were the-birth of her imagination. Besides these characteristics of temperament and abnormal mental manifestation, it is urged that her acts and conduct show that physical and mental disease had so affected and impaired her memory, will, and understanding as to render her incapable of comprehending and understanding her business affairs or her relationship to those who were the natural objects of her bounty. It is common knowledge that persons may be so swayed by avarice, superstition, and perverse sentiments and feelings as to lead them into extreme and unreasonable acts though they be of sound mind and capable of fully understanding their affairs. Likewise, individuals of sane and comprehending mind may persist in notions and illusions, in spite of argument and explanation which commonly appeal to and suffice to persuade the generality of persons of their unreality. The evidence shows that Mrs. Keenan at no time after her serious illness in 1907 refrained from, nor was she prevented from, participating in the management of her domestic or business affairs. The evidence is clear that nothing was done without her direction, nor were her personal and business transactions finally consummated without her personal assent. True, she conducted her affairs through agents and employees, but it is significant that none of them undertook to do anything for her without submitting it to her for her approval! It is urged that this was done to satisfy her notions and childish disposition induced by her decrepitude, — 103 — but the fact appears to be that she comprehended the meaning and consequence of the transactions submitted to her. Her manner and method in participating in her affairs on these occasions show a persistent and constant determination to control whatever was before her, and her conclusions and directions were accepted and carried out. It also appears that she had such a grasp of these transactions that she intelligently and understanding^ conferred with others respecting them, indicating, that she had sufficient mental grasp to comprehend them and pass judgment on the subjects before her. Her physical frailty for many years seems to have rendered her unable to keep up a long or protracted interview about her business and to have prevented her from sustaining a mental strain for a long period at a time. It is shown, however, that whenever her physical strength enabled her to undertake to do business regarding her property, she displayed a mental condition which enabled her to comprehend and understand its bearing and relation and to determine what was to be done under the circumstances. It is also significant that she persistently adhered to the one plan of disposing of the bulk of her property in the form of a public charity and that she did not make many changes in the minor bequests on the several occasions when she had the testamentary disposition of her property under consideration.' It is abundantly established that she acted providently in the management of her "property and persistently insisted upon preserving it for a memorial for her deceased husband. Her acts and conduct and the manner of dealing with the persons whom she engaged to perform services for her in various capacities, from domestic service to .professional employment, negative the claim that she was a mental incompetent and unable to manage her affairs. The reliance these persons placed on her capabilities to do what she did impairs the weight of their opinion that she was mentally incompetent to make the will and codicils in question. — 104 — Further specification of the details of the evidence bearing on Mrs. Keenan’s mental soundness and capacity at the times she disposed of her property under this will would not be helpful. A study of the .record has persuaded us that the findings of the trial court are abundantly supported by the testimony and that they cannot be disturbed. The verdict of the jury being advisory, the court was not bound by it and was at liberty to change the answers of the jury to special questions when it found they were not supported by the preponderance of the evidence. The court properly made its findings of facts on the issue covered by the special verdict and was not required to submit the issues of fact to a second jury. The direction of another trial before a jury was a matter of discretion for the trial court. If the trial court was dissatisfied with the verdict as being against the weight of the evidence, it was incumbent on the court to make its findings on the issues tried in conformity with the preponderant weight of the evidence. This the court did, and we find the trial court is sustained by the record. Will of Meurer, 44 Wis. 392. We find no basis for the contention upon the various questions presented by contestants that the court was clearly wrong in withdrawing from the jury the inquiry whether or not the will was the product of undue influence. The evidence fails to sustain this claim. As this court has declared : “Undue influence is the very antithesis of right influence. It exists only where there is practical destruction of voluntary volition, — at least, is moral coercion for an ulterior purpose.” Ball v. Boston, 153 Wis. 27, 141 N. W. 8; Anderson v. Laugen, 122 Wis. 57, 99 N. W. 437. Since the questions litigated were ultimately decided by the court contrary to the verdict of the jury, the alleged errors of instruction to the jury cannot affect the judgment rendered and need not be considered. The contestant offered R. Franklin Nusum (the husband — 105 — of one of the legatees under the will) as a witness to testify to transactions and conversations by him with decedent and whether he observed that Mrs. Keenan, as he talked with her during her last few years, comprehended or had difii-culty in comprehending what he said. All of the evidence was excluded upon the ground that the witness was incompetent. This evidence is also made a ground for contestant’s motion for a new trial in connection with the ground of newly discovered evidence and the refusal of the court to grant a new trial, for the reason that ch. 433, Laws 1917, makes him a competent witness. This law became effective June 18, 1917, the day the jury’s verdict in the case was rendered. We will consider this testimony in connection with these motions. The alleged, newly discovered evidence of Miss Duell is to the effect that she had many personal transactions with Mrs. Keenan from the time of Mr. Keenan’s death in 1898 to 1912; that she is a practical nurse and has at times lived with Mrs. Keenan; that she observed Mrs. Keenan manifesting lapses of memory, and that- at times she refused to purchase provisions for herself and others at her house, except sauerkraut, on which she persisted in living; that she was unable to understand business affairs for days at a time, and that the witness knows of insanity of her sisters and brothers and facts in Mrs. Keenan’s conduct indicating mental incompetency, and that in her opinion she was not mentally competent to comprehend and understand the provisions of the will nor her relations to persons who were the natural objects of her bounty. The transactions, conversations, and opinions sought to be elicited from Mr. Nuzum were in substance to the effect that she was not able to understand and comprehend matters and affairs he attempted to bring to her notice; that her memory wholly failed her in matters pertaining to her business, her relatives and who they were, and whether or not they were living, and what provisions she had made for them in the past or by her will, — 106 — and similar instances of loss of mind and inability to understand and comprehend ordinary details concerning business and property. There is much testimony of this nature displayed in the record by persons having personal transactions and intercourse with Mrs. Keenan; yet in the opinion of the trial court, when considered in connection with the other testimony in the record, it was not sufficient to overcome the positive testimony showing that Mrs. Keenan had throughout her widowhood actively managed her property and affairs in such manner as to show that she comprehended and understood these affairs and that she had sufficient mental capacity to make the will in question. It is also to be observed that the court was justified in holding that due diligence was not shown in securing the witness. Duell. Assuming that the witness Nuzum would be competent to testify on a retrial of the cause, we do not consider that his testimony and that of Miss Duell necessarily calls for a different finding by the trial court on the subject of decedent’s mental soundness and capacity to make the will than the conclusion arrived at by the court in this trial. Assuming that Nuzum’s testimony would have been as appellant contends, its exclusion did not constitute prejudicial error in the light of its nature and probable probative value upon the issues litigated. The argument that the provisions of the twenty-first article of the will indicate that'the testatrix had no understanding or comprehension of their legal effect proceeds upon the assumption that they were unnatural, unreasonable, and confer such untrammeled powers on the trustees as no person of sound mind would embody in a will to create a charitable trust. The force of this claim is refuted if the charitable bequest-is valid in the law. The contention is made that the trust provisions of the will are void because of their uncertainty, their inherent contradictions which make its execution impossible, and because it attempts to — 107 — withdraw the powers vested in courts in the administration of trusts and confer them on the trustees. The trial court declined to determine the questions thus suggested, declaring they need not be determined in the probate proceeding and could more appropriately be considered thereafter. While this course of the trial may be justified in some cases, we think it appropriate to entertain the questions presented on this appeal in view of the fact that the questions are fully briefed and argued, and determination thereof will avoid further litigation and consequent expense. Deller v. Deller, 141 Wis. 255, 124 N. W. 278; Estate of Judson, 168 Wis. 361, 170 N. W. 254. It is insisted that the residuary clause embraced in the twenty-first paragraph is void for uncertainty of devisee or beneficiaries. Discussion of this subject has been most searching and extensive in the cases in this court and anything repeated here would of necessity be in substance but a repetition of what has been stated in those adjudications. Among these cases are the following: Ruth v. Oberbrunner, 40 Wis. 238; Heiss v. Murphey, 40 Wis. 276; Dodge v. Williams, 46 Wis. 70, 100, 1 N. W. 92, 50 N. W. 1103; Estate of Hoffen, 70 Wis. 522, 36 N. W. 407; Hood v. Dorer, 107 Wis. 149; 82 N. W. 546; Harrington v. Pier, 105 Wis. 485, 82 N. W. 345. In the Hood Case it was held that where by will property is directed and devised for a particular charitable purpose as distinguished from charity generally, with a class within which a trustee can select the beneficiaries and not so indefinite as to be unenforceable, it is a good charitable bequest. “Giver! a trust, with or without a trustee, a particular purpose, as education or relief of the poor as distinguished from a bequest to charity generally, and a class, great or small, and without regard to location necessarily, as ‘worthy indigent females,’ or ‘indigent young men studying for the — 108 — ministry,’ or ‘resident poor,’ . . . and we have a good trust for charitable uses. The court, through its strictly judicial power, may fill 'the office of trustee, if necessary. The trustee can select the immediate beneficiaries or objects within thé designated class and scheme. He can determine upon the details necessary to effect the intention of the donor within the general limits of his declared purpose, and' execute the trust accordingly; and the proper public agencies, if necessary, can invoke judicial power to enforce such execution.” In Dodge v. Williams it was said: “A charitable use is essentially shifting. When a trust defines the beneficiaries with certainty, it is rather private than public. ... ‘It is the number and indefiniteness of the objects, and not the mode of relieving them, which is the essential element of charity.’ ” These observations apply and meet every objection urged by appellant against the invalidity of the trust in question. We cannot discover uncertainty or indefiniteness as to beneficiaries, we find no contradiction in the terms of the trust to prevent its enforcement, nor are the powers conferred on the trustees in conflict with the law so as to remove them from the supervision and control of the courts. The uncontrolled discretion conferred on them as to investments and reinvestments is so restricted in the second codicil as to clearly subject them to the control of the. court and the statutes and laws governing trustees of charitable trusts. It is considered that the trust embodied in the will is a valid charitable trust and has no legal infirmities that prevent the courts from enforcing its provisions. We find no- reversible error in the record. By the Court. — The judgment appealed from is affirmed.