Will of Behm

Vinje, C. J. We have set out the 'findings of fact made by the county court in extenso because they correctly and adequately summarize the essential testimony in the case. Very little more can be added from the testimony except what is therein summarized except that it appears that Herman, the oldest son, according to the widow’s testimony, was the favored child of the testator and that the testator usually pillowed him to keep what money he earned even when a minor, while he did not usually allow the other children to do so. It is very difficult to determine from the testimony whether the testator generally or most of the time, or at times only, acknowledged that the daughter Anna, born in Germany, was his child. It seems from the whole case that the trial court was of the view that the testator acknowledged his two oldest children to be his, and came to the conclusion he did, as expressed in the eighth finding of fact, that the obsession possessed by the testator did not affect him in the disposition of his property, principally because having acknowledged Anna to be his child and having treated her the same as the other children, which he did not acknowledge to be his, it cannot be said that the obsession entertained by him of his wife’s infidelity operated upon him in the making of his will. Were it an established fact that he did acknowledge Anna to be his child, there would be much force in this reasoning. But there is no certainty [13] that he regarded her as his child. The fact that Herman was his favorite child, coupled with the usual notion of persons born in Germany that the oldest son should be favored above other children, also tends to support the conclusion drawn by the county court. It is apparent at once upon inspection of the so-called eighth finding of fact that it is really a conclusion drawn by the trial court from testimony in which there is little or no conflict; and therefore it does not have the force 'and effect of a finding of fact found by a trial court upon conflicting testimony. We are mindful of the presumption that should obtain in favor of the validity of a will and of the sanctity of a testator’s rights, and of the fact that unless it fairly clearly appears that an obsession on the part of the testator has in fact affected his last will and testament that such obsession becomes immaterial. Here, however, we have a case where, so far as the testimony shows, the testator regarded all his children, with but slight exceptions, equally favorably so far as domestic affairs were concerned, except when this obsession overpowered him. Indeed, it appears from the testimony that for the last couple of years of his life he lived with one of the sons who was disinherited. It does not appear at all from the testimony that he ever lived with Herman or that Herman ever did anything more for him or for the family than any of the other children. In view of these facts we are forced to the conclusion that but for the obsession dominating the testator he would have treated his children differently — that he would have made a different will. One of the cardinal tests of the presence of undue influence or the effect of an obsession on a testator is to consider the result of the will and to determine whether or not such result was arrived at by reason of the undue influence or the existence of the obsession. It seems to us highly improbable that but for the obsession the testator' would have made the will that he did. The terms of the will seem rather to be the result of the existence of the obsession. It [14] follows from what has been said that the conclusion drawn by the trial court must be set aside and disregarded. By the Court. — Judgment reversed, and cause remanded with directions to disallow the probate of the will.