Wagner v. Wegner

Jones, J. Since we have come to the conclusion that the judgment of the county court must be reversed, we have given the main features of the testimony at considerable length. This is especially true as to the evidence offered by the contestants. We appreciate the weight which should be given to the findings of the trial court and we have given careful consideration to those findings and the rule which prevails in such cases, but we are forced to the conclusion that there was not sufficient evidence to establish undue influence. As appears from the statement of facts, a large amount of testimony was given for the purpose of proving the incompetence of the testatrix. Most of this testimony related to events while the testatrix was on the farm, while there were evidently dissensions among the children calculated to create more or less mental anxiety and confusion. There was practically no such testimony relating to the period after she had removed to her daughter’s home. During the former period she was in- poor health and nearly blind. All who have observed the infirmities of age can well Understand' that when one is the victim of old age, poor health, and partial blindness, the senses may temporarily fail in their natural — 414 — functions. There may be confusion as to names and dates and places. At such times unreal sights and sounds may seem very real and vivid and unreal images are presented to the- bodily and mental vision. When health is somewhat restored and these illusions have passed away, the judgment as to the practical affairs of life may be entirely sound. No thing reveals more strikingly the eccentricities of the human character than a contest over a will. In such contests the peculiarities of the testator during many years are sometimes brought to the public view and often in exaggerated form. Cases which have come before this court in former years well illustrate the kind of testimony relied on in such contests. They contain proof that the testator cherished visionary plans; that he made vain pursuits of wealth or game or mines; that he fancied that he held converse with departed spirits or consulted with and relied on the advice of clairvoyants and fortune tellers or believed in witchcraft; that he was the victim of hysteria or epilepsy; that there was a defective memory as to names and events; that there had been at times abnormal mental elation or depression, unfounded prejudice, and strange suspicion of best friends or false accusations against others; that the testator had held absurd opinions and indulged in wild vagaries or entertained insane delusions. These are a few of the many similar facts which in other cases have been proven to establish lack of testamentary capacity. Not all of these facts, but many of them, will appear in a single case. Such facts as these are relevant not only on this issue but as bearing on the susceptibility of the testator to undue influence. It is elementary that the question of competency is to be determined as of the time of the execution of the'wiil. While evidence of former mental condition is relevant, it may relate to times so remote as to have little weight. The same is true if the testimony relates to a time when there was ill health from which there had been recovery before the execution of the will. In this case Mrs. Wegner had only one — 415 — item of property — her claim to collect $3,000 designated in the mortgage. Although she was advanced in years, un7 educated, partially blind, and had been subject to some of the hallucinations which have been described in the statement of facts, it required but little mental effort to comprehend the nature and amount of her property. We are convinced that she understood the nature of the business in which she was engaged when the will was made; that she appreciated the effect of the disposition made of her property ; that she well understood what person or persons she desired to participate in her bounty; and that she had testamentary capacity. Although the trial judge expressed the opinion that she was not sufficiently capable to comprehend “her relation of her property to that of her various children,” he expressly states that he refrained from finding lacle of testamentary capacity. The following are some of the decisions of this court in which testimony, in some respects, similar to that here relied on, was held insufficient to establish lack of testamentary capacity: Chafin Will Case, 32 Wis. 557; Will of Blakely, 48 Wis. 294, 4 N. W. 337; Lewis’s Will, 51 Wis. 101, 7 N. W. 829; Will of Smith, 52 Wis. 543, 8 N. W. 616, 9 N. W. 665; Cutler v. Cutler, 103 Wis. 258, 79 N. W. 240; Will of Derusseau, 175 Wis. 140, 184 N. W. 705. In this case there is undoubtedly proof of some of the facts necessary to establish undue influence. Mrs. Wegner had lived for three or four months in the home of Minnie when the will was made. During that time the children of the testatrix who appeared as witnesses for the contestant had little intercohrse with their mother. If Minnie and her husband had the disposition to use undue influence, there was every opportunity. Moreover, a will was executed which was entirely favorable to the proponent, wholly excluding the other children. There is no direct evidence that Minnie sought' to avail herself of her opportunity by urging her mother To make a will, although there is evidence that while the testatrix was living on the farm — 416 — Minnie and lier husband had said in substance that something should be done so that the $3,000 mortgage should be saved for the children. Although this evidence was relevant to the issue, it may well be doubted whether it was sufficient to establish Minnie’s disposition to secure the execution of the will in question. Doubtless there may be such convincing proof of coercion as to render direct proof of importunity unnecessary. Will of Bocker, 167 Wis. 100, 166 N. W. 660. On the other hand, it is well settled that it is not sufficient to constitute undue influence that the testator’s reason is convinced by persuasion and argument, if the document is executed according to his own will and intention. “Importunity, to have legal effect, must be in such a degree as to take away free agency from the testator.” Deck v. Deck, 106 Wis. 470, 82 N. W. 293; Will of Carroll, 50 Wis. 437, 7 N. W. 434; Mueller v. Pew, 127 Wis. 288, 106 N. W. 840; Will of Ball, 153 Wis. 27, 141 N. W. 8. Although there is sufficient proof to prove two of the required conditions to establish undue influence, we are satisfied that the evidence falls short of proving that when the will was executed the testatrix was susceptible to such influence. She was then in fair health considering her age and partial blindness. She had by no means surrendered hope of life and better eyesight and was anxious to have medical relief for her failing vision. Most of the contestants’ evidence concerning the physical and mental conditions of Mrs. Wegner consisted of statements of her relatives, who evidently had a strong bias. Owing to the unfortunate family dissensions, there doubtless was the same bias on the part of the relatives of the proponent who were called to sustain the will. We are convinced that the trial court failed to give sufficient consideration to the testimony of disinterested witnesses. The family physician and the family clergyman made frequent visits to Mrs. Wegner during her residence with Minnie and found her intelligent and clear in mind. The same is true according to the testimony — 417 — of several disinterested neighbors, who also testified that Mrs. Wegner., both before and after the execution of the will, stated to them that Minnie was to have her property because it was Minnie with whom she intended to live. If such declarations are made to third persons while no improper influence exists and are consistent with the disposition of the property actually made, they'‘-‘are entitled to weight on the question whether the real intentions of the testatrix have been overcome or frustrated by undue influence. Will of Emerson, 183 Wis. 437, 198 N. W. 441. Before such influence can be found, it must be of that character which destroys the free agency of the testator and substitutes for his intention that of another. Another disinterested person who testified was Mr. Hougen, a respectable attorney of twenty-five years’ practice, who drew the will and consulted with Mrs. Wegner in her own language. His testimony was unequivocal and to the effect that the testatrix was of a sound and disposing mind and knew what she wanted and gave good reasons for her purpose. We believe that this testimony was entitled to greater weight than was accorded it by the lower court. Will of Emerson, 183 Wis. 437, 198 N. W. 441; Will of Maresh, 177 Wis. 194, 187 N. W. 1009. We gather from the evidence that Minnie and her husband remained in the room during the conference, but it is undisputed that neither of them participated in the conversation respecting the will. In our opinion it is the better practice, and the one generally followed by attorneys, to conduct such conferences with the testator in the preparation of wills when persons who are deeply interested are not present. Such a practice is more conducive to elicit perfect frankness and freedom in the expression of the testator’s real wishes. We are satisfied, however, that in this case the actual and well settled purpose of the testatrix was expressed in her will. It is claimed by counsel for the respondents that the will is unnatural and not in accordance with natural justice. In — 418 — considering this question the relations of the other children to their mother have an important bearing. Among the undisputed facts are these: It was no longer practicable for Mrs. Wegner to remain on the farm with Ferdinand. No other, child than Minnie was in a situation or willing to live with and care for the mother in her old age. Minnie was willing to undertake that responsibility. Evidently none of the children then anticipated that the tenure of their mother’s life would be so short. It seemed quite possible that she might live for a decade or more. It was natural for her to believe that the execution of this will would be an inducement to Minnie to furnish a home and proper care for her during the remaining years of her life. She had the power to chang-e or revoke her will at any time if Minnie’s care for her proved unsatisfactory. We regard the will as just and natural under all the circumstances and hold that the will should be sustained. By the Court. — Judgment reversed, and cause remanded with directions to admit the will to probate.