69 Wis. 529 | Wis. | 1887
This is an appeal from the decision of the circuit court refusing to admit to probate a paper writing alleged to be the will of Charity S. Allen. A paper writing purporting to be the last will and testament of Charity S. Allen, deceased, was offered for probate in the county court of Winnebago county, by Edward Allen, the husband of the said Charity S. Allen, deceased. The probate was opposed by the said respondents. The objections made to the probate of said alleged will were: (1) That the paper was not duly executed by said Charity S. Allen, and attested as her last will and testament; (2) that at the time of the date of said instrument the said Charity S. Allen was not of sound mind; (3) that, if said Charity S. Allen signed and executed said paper, her signature thereto, and the execution thereof, were procured by fraudulent practices, and undue influence, exercised by Edward Allen, named as the principal legatee and executor in said paper.
In the circuit court no evidence was offered by the contestants. After the proponent had produced his witnesses and testimony the contestants moved “ to reject the paper writing proposed as the last will and testament of Charity S. Allen upon the evidence of the proponent, for the reason that it is not established by the evidence that it is the will of a competent testatrix, and executed and attested as required by law to establish it as a will.’-’ The motion of the contestants was granted by the court and probate of the will was refused.
The circuit court made the following findings in the case: “ (1) ’That said paper writing was not attested and subscribed in the presence of the said Charity S. Allen by two competent witnesses, as required by law. (2) That said paper writing is not the last will and testament of said Charity 8. Allen, deceased.” And as conclusions of law: “ (1) That said paper writing should be rejected and disallowed. (2) That the order of the county court of Winnebago county appealed from herein be affirmed.” These findings of fact and conclusions of law were duly excepted to by the. appellant.
In this court the learned counsel for the appellant contends that the circuit court erred in finding that the said paper writing purporting to be the will of Charity S. Allen was not attested and subscribed by two competent witnesses, as required by law. And he further insists that this is the only question of fact decided by the circuit court. That which is stated as a second finding of fact is a mere conclusion of law, and not a fact. We are inclined to hold that
The main question in the case, as disclosed by the record, is, was the paper writing executed by the deceased as her will, and was such execution witnessed and attested by two competent witnesses in her presence? After a careful consideration of the testimony, it is very clear to us that it was executed and attested as prescribed by the statute. The learned counsel for the contestant contends that the evidence does not conclusively show that the two persons whose names were placed upon the paper as witnesses at the time the deceased signed it, signed as such witnesses after the same was signed by the testatrix. We think the fair construction of the evidence-shows that they did sign after the deceased had signed, and that they signed in her presence. To reject the probate of a will upon such evidence as was offered in this case, on the ground that it does not conclusively appear that the witness signed as such after the signature of the alleged testatrix, would jeopardize the probate of very many honest wills. We think, in the absence of clear proof that the witness or witnesses signed before the signing of the testator, it should be presumed that the testator signed first. This would be the usual order of signature. This view of the case seems to be sustained by the authorities cited below. Upon the proofs in this case, it would seem to us that it affirmatively appears that the two
If we understand the very able argument of the learned counsel for the respondents, he does not rely with anjr great degree of confidence on this point. The main argument upon which he justifies the rejection of the probate of the instrument in question is that the witness Hattie Wyman, whose name appears as the first witness to the will, had no knowledge that the paper she signed as a witness was the last will and testament of the said Charity S. Allen. And he has made a very able and elaborate argument to show that, unless the persons who sign, as witnesses, an instrument which is intended to be a will, know the fact that such is the nature of the instrument upon which they place their names as witnesses, they do not attest and subscribe as required by sec. 2282, R. S. 1818. This is a very old question, both in England and this country, and with all due respect for the learning and ability of the counsel for the contestants, we think it very clear that the great weight of authority is against the claim made by the counsel. The reason for holding that, under a statute like* ours, the witnesses need not know the nature of the instrument to which they attach their names as witnesses to the signature of the person who has subscribed the same, is entirely satisfactory to us.
If the contention of the learned counsel is to prevail, then the fact that a will was duly witnessed as required by law would in all cases depend upon the memory of the persons signing as such witnesses; and the most honest will, executed in the most formal manner, would be defeated of probate if the witness should be unable to call to mind or recollect that when he signed as such witness the person signing it had declared that it was his or her will. Such a rule, instead of preventing the probate of suspicious or doubtful testamentary papers, would only tend to defeat
The foregoing citations are abundant to show that the contention of the respondent on the point above stated is not sustained by authority. Although this court may not have passed upon the exact question now raised by the learned counsel for the respondents, it has certainly strongly intimated that it would follow the rule established in cases above cited. See Will of Meurer, 44 Wis. 392; Will of Jenkins, 43 Wis. 610. We think no good results could follow the establishment of the rule contended for by the learned counsel, but, on the contrary, that very great evil might be the result of establishing such rule.,
We think there is great force and good sense in the remarks of the learned judge who delivered the opinion in
There is no question in this case, upon the testimony, but that the writing to which the witnesses affixed their signatures was intended by the deceased to be her will. This is fully established by the evidence of Hall, who drew the instrument, and witnessed the same; and this fact would not be more clearly established had the other witness, Hattie Wyman, been able to testify that the deceased asked her to sign as a witness to her will. Her memory of that fact would not be as satisfactory as the evidence of the man who was called upon to draw the instrument, and had full knowledge of its contents, and of the purposes for which it was made.
We are satisfied that the learned circuit judge erred in-holding that the will was not attested and subscribed in the presence of the testator by two competent witnesses.
But it is further insisted by the learned counsel for the respondents that the ruling of the circuit court ought to be affirmed, because there was no evidence given as to the competency of the deceased to make a will at the time this
We do not pass upon the question raised as to the validity of the provisions of the will presented for probate in this case. If the same was duly signed and witnessed, and if
By the Court.— Ordered accordingly.