Bryant v. Pierce

95 Wis. 331 | Wis. | 1897

Oassoday, C. J.

A general outline of the facts in the case, and a considerable portion of the opinion of the trial court have been given. The testimony is voluminous. Several exceptions are taken to the admissions of testimony. Assuming that some of the exceptions are well taken, yet, as the verdict in such a case has substantially the same effect as a verdict on a feigned issue in chancery, it is manifest that such exceptions cannot work a reversal. In re Jackman's Will, 26 Wis. 104; Chafin Will Case, 32 Wis. 557, 569; Wright v. Jackson, 59 Wis. 584; Loughney v. Loughney, 87 Wis. 101. This is the well-settled rule in equity cases. The rule is recognized by counsel for the appellants, for they say that they make these assignments of error “ simply as the most convenient way of exhibiting to this court the peculiarities of the trial, and the circumstances under which the court reached its conclusions,” and “ that this court will pass upon the whole record, and, excluding improper testimony from consideration, will determine whether the judgment is to stand.” The declarations of the deceased were certainly competent evidence on the subject of his mental capacity.

Upon the question of the mental capacity of the deceased, the trial court, among other things, in effect said that, during the last two or three years of his life, his manner of living and his manner of doing business and his habits in some respects were materially different than previously. Such changes are frequently evidence of impaired and enfeebled intellectual faculties, which are liable to end in mental decay and idiocy. The trial court, upon this point, further said: “ There is evidence which, if taken as true and considered as true, certainly establishes the proposition that he was of sufficient mind and disposing memory to make a valid will, and there is other evidence in this case which, if true, is sufficient to support the contention of the contestant in this case that he was not of sufficient mental capacity to make a valid will at this time.” Consequently, the court acquiesced in the verdict of the jury, and held that the deceased did not have the mental capacity to make a valid will at the time the instrument in question was executed. We have grave doubt as to this conclusion from the evidence upon the mere question of the mental capacity of the deceased to make a valid will had no undue influence been brought to bear upon him. But such impaired and enfeebled condition of his mind necessarily made him more susceptible to such influence. It is upon this theory that prior and subsequent declarations of the testator are admissible in evidence on the question of'undue influence. True, such declarations are not evidence that extraneous and undue influence was actually exerted, but were to prove or disprove the capacity of the testator to discover and resist importunities, flatteries, or other acts tending" to undue influence. The weaker or more susceptible the mind of the testator, the less artifice will be required to mislead, pervert, or deceive it. As said in another case, undue influence “ is a subtle species of fraud, whereby mastery is obtained over the mind of the victim-by insidious approaches, seductive artifices, or other species of circumvention. From the very nature of such influence, the evidence, generally, is wholly or almost wholly circumstantial. The questions to be considered are not confined to the conduct of the favored legatee and his friends, constituting the-alleged undue influence, but extend to the susceptibility of the testator to the peculiar influences brought to bear upon him, and his capacity to discover and resist such approaches and importunities. The previous relations, friendships, and intercourse between the testator and the several parties concerned, and the physical and mental conditions of the testator, therefore, as well as the circumstances under which the will was executed, are important to be considered.” Will of Slinger, 72 Wis. 27. The brief of counsel for the proponent and legatee concedes that “some of the testimony given on both sides tends to show that the testator was habitually loose and immoral in his relation with women. It also appears that for several years before his death he was troubled with disease of the bladder and urinary organs, from which at different times he suffered intensely, and that he was very emotional.” When passion has the mastery, the intellectual faculties are naturally weakened, and the judgment and power of volition impaired. Especially is this true when the victim has a disease which stimulates the passion. It can serve no purpose to recite evidence on this question. The trial court said: “ His associations, to say the least, were peculiar, and the evidence tends to show that he associated with people of questionable repute;” and further said that the jury “formed the opinion, and so expressed it in their verdict, that there was such undue influence exerted upon Mr. Pierce at this time by Miss Granice that it was not the will of Mr. Pierce, but the will of Miss Granice, that was made on the 24th day of March, 1893, by the deceased. On this branch of the case there is plenty of evidence which supports the finding, and there is evidence which, if true, supports the proposition contended for by the contestant in this case; and on this controverted part of the evidence the jury have found, as a matter of fact, that she did exercise such undue influence upqn the deceased that this instrument was not the instrument of the deceased, but was rather her will and her request, and that the influence was undue.” And so the finding of the jury upon that question. is adopted as the finding of the court. It is to be remembered that “the influence of an unlawful relationship is naturally and ordinarily unlawful, in so far as it respects testamentary dispositions favorable to tlm unlawful relationship, and unfavorable to the lawful heir. This was so held in a case .where the testator was living in adulterous intercourse with the mother of the beneficiaries. Dean v. Negley, 41 Pa. St. 312. This is somewhat similar in principle to the case at bar.” Will of Slinger, 72 Wis. 35. See, also, Leighton v. Orr, 44 Iowa, 679. We do not feel justified in disturbing the finding of the fact of undue influence, thus sanctioned by both the court and the jury. They certainly had far better opportunities for weighing the evidence, and rendering an accurate conclusion as to the facts, than this court; and, after careful consideration, we are constrained to follow and sanction their judgment. Moore v. McDonald, 68 Md. 321.

The error assigned for excluding a portion of the testimony of the physician who attended the deceased, by reason of the provisions of sec. 4075, B. S., must be overruled, for the reasons given in an opinion filed herewith by Mr. 'Justice Pinney, in Boyle v. N. W. Mut. R. Asso., ante, p. 312. Other errors are assigned, but it is believed that they are substantially covered by what has already been said.

By the Oov/rt.— The judgment of the circuit court is affirmed.

On March 24,1897, on motion of the appellants, an order was entered making the taxable costs of both parties in this court payable out of the estate.