63 Wis. 162 | Wis. | 1885
It will be seen by the findings made by the learned circuit judge that there was no question made as to the competency of Mrs. Armstrong to make a will at the time the one in question was made. That seems to have been conceded by all parties, including the learned judge, nor do we think that he intended to find as an absolute fact-that the will propounded for probate was not executed or signed by the deceased or by her direction. 1 The point made by the learned circuit judge against the- validity of the will was, in substance, that because it appeared that the will had been drawn up by Mr. Banta before he proceeded to the house of the deceased, and because he had drawn the
The learned judge, we think, overstates the case against the proponent when he says “ he dictated the will.” Mr, Banta testisfies that Mr. Armstrong stated to him that his wife wanted him to come to the house and draw her will He did not in the first instance intimate to him the nature of the will she desired drawn. Mr. Banta asked Armstrong if he knew what kind of will she wanted drawn, in order to enable him to draw it up at his office, and in reply to this inquiry Mr. Armstrong stated what disposition of her prop
Ye see nothing in tbe evidence produced on tbe trial tending to show that any undue influence was used by tbe husband to induce bis wife to make tbis will, or anything which should require tbe court tq demand of him to prove tbe absence of undue influence before tbe will should be admitted to probate. Tbe proponent of a will is not called upon to show affirmatively that there was no undue influence used to procure tbe making of tbe will. Undue influence is a defense, and tbe evidence of it must regularly come from tbe contestant. Tyler v. Gardiner, 35 N. Y. 559; Boyse v. Rossborough, 6 H. L. Cas. 2; Clapp v. Fullerton, 34 N. Y. 190; Bleecker v. Lynch, 1 Bradf. 458, 472. In Boyse v. Rossborough tbe Lord Chancellor says: “ One point, however, is beyond dispute, and that is that when once it has been proved that a will has been executed with due solemnities by a person of competent understanding and apparently a free agent, tbe burden of proving that it was executed under undue influence is on tbe party who alleges it. Undue influence cannot be presumed.”
To our minds, the cases have no features in common, except, perhaps, that the will was written before it was presented to the testatrix for execution, by a person employed by the husband, and written in the form suggested by the husband as that desired by the testatrix. It does not appear that she had been under the active and controlling influence of her husband to make the will in the form it was made; nor that she had been imbued either by her husband or any one else with any causeless or other antipathy. against her grandson, who was her only heir besides her husband. The will involves no revolution of intention, nor any departure from previous testamentary disposition.
Of a similar will, the Lord Chancellor, in the case of Boyse v. Rossborough, says: “That Mr. Oolclough might, without any undue influence operating on his mind, desire to make a will giving everything to his wife, is a proposition which cannot be controverted. She had been the partner of his life for twenty-four years. He had no children. His nearest relative was a first cousin of his father, with whom, for whatever cause, he had never had more than slight and casual intercourse. His heir presumptive was a second cousin, of whose existence he does not appear to have been aware, being the daughter of another and elder first cousin of his father, who had died many years previously. • That he should, in these circumstances, wish to give everything to his wife, could surely afford no ground for surprise; and one mode, therefore, of looking at this
We think the learned circuit judge fell into the error pointed out by the learned Chancellor, and because he saw that there were some circumstances attending the execution of the will of Mrs. Armstrong which are consistent with the hypothesis of undue influence, he held that undue influence was established, without any proof of the fact. This was clearly an erroneous conclusion. That a wife who had apparently lived happily with her husband for the most of their lives, and until they were both over seventy years old, and having no descendants except a minor grandchild, whq had never lived with them, and was residing with his mother, again married, in another state, should desire, when about to die, to leave her estate to her husband, is certainly not unnatural or unjust. The fact that she did so in this case does not, therefore, raise any presumption of undue influence, and the mere fact that the husband had obtained a knowledge of such a desire on her part, and when solicited to do so had stated such desire to the person who draughted the will, does hot in itself show that she did not execute the same freely, and without cpercion on his part. Admitting, as we must, the testamentary capacity of Mrs. Armstrong when she executed the will, we can see no justification for the finding of the learned circuit judge that the writing propounded for probate was not her will.
As it was stated on the argument in this court that the contestant had evidence which might have been produced on the trial which would have tended to establish the defense of undue influence on the part of the husband, and as it is probable that they wereflnduced to withhold such evidence on account of the declared convictions of the circuit judge, at the close of the proponent’s evidence, that the proponent had failed to prove the due execution of the will, we reverse the judgment of the circuit court, and remand the case with directions to the circuit court to grant a new trial in the case, on the application of the contestant, if made within ninety days after the return of the record to said court. If no application for a new trial be made within such time, then the circuit court is directed to enter a judgment affirming the order of the county court admitting the will to probate. The taxable costs of both parties in this court to be paid out of the- estate of the testatrix.
By the Goyrt.— Ordered accordingly.'