116 Wis. 220 | Wis. | 1903
It is claimed on the part of the plaintiff that at the time of executing the deed of gift and the order upon the cashier of the bank to deliver the bonds and certificates of deposit to the defendant, December 7, 1899, the deceased was mentally incompetent to comprehend the business in which he was then engaged. The trial court, after hearing all the evidence, found to the contrary; and the question is whether such finding is against the clear preponderance of the evidence. The evidence bearing upon that question was-almost wholly from witnesses produced on the part of the defendant, who had known the deceased for many years, including the cashier of the bank with whom he had done business for many years. From the testimony of such witnesses; there can be no question but that the deceased, prior to his starting-for Thomasville, Georgia, on or about November 4, 1899, was of sound mind and memory, and perfectly competent to-transact any business. He had for many years been a resident of Milwaukee county, and by economy, thrift, and judicious investments, and the increase in the value of property, had accumulated a large fortune. At the time of going to-Thomasville he was about eighty-eight years of age and had never been married, and had no relatives nearer than nephews- and nieces. Prior to that time he occasionally gave property to some of his relatives, and had twice been to Europe, and given considerable property to some of his poor relatives-there. For a man of his age, he was very active and vigorous,,
“His mental condition and knowledge of his property at the time I last saw him was good, — in fact, as good as at any time of my acquaintance with him. . . . He was a man of clear ideas, rather incisive in his method of stating things, and, having made up his mind that he was right, he was pretty apt to stick to his opinion, unless sufficient evidence was brought forward to overthrow it completely.”
Such was the mental condition of the deceased when he started for'Thomasville, on or about November 4, 1899. He reached there alone on the evening of November 6, 1899, and stopped at Hotel Brighton, of which Royal J. Miller was proprietor, and who, at the request of the deceased, registered his name as guest. The next day he called Dr. A. P. Taylor, of Thomasville, with whom he had become acquainted on former visits to that place. The doctor found the deceased was “having some trouble with his kidney and bladder, — a slight hemorrhage.” November 9, 1899, Dr. Taylor prescribed for the deceased. At that time his mental condition was good. He next saw the deceased December 2,1899, when he had the stroke of paralysis, and continued to see him every day thereafter until and including December 11, 1899. He
2. It is claimed on the part of the plaintiff that the deed of gift and order on the cashier of the bank to deliver the securities to the defendant were procured by undue influence. The important fact appears that the deceased had fully planned and determined upon such transfer while the defendant was a thousand miles distant, or on the way to his bedside by virtue of a command from himself. Thus it appears from the testimony of Royal J. Miller, a witness on the part of the plaintiff, that twelve hours after the deceased had the paralytic stroke he gave to the witness the address of the defendant, and requested him to send a telegram in his name, which he did, dated at Thomasville, Georgia, December 3,
“Come at once Bring Ed. I want you both. Have paralysis on side. Answer immediately. Charles James.”
According to his testimony, the deceased on the next day after he was so stricken, and on the same day the telegram was sent, first spoke to him “something about transferring his property to Miss Holmes.”
Tie testified further that it was at that “time that he gave me his money. He gave me receipts signed by John Johnston for three or four certificates of deposit, amounting to somewhere in the neighborhood of $125,000, and $50,000 of government bonds. At that time he stated that he wished to turn his property over to Miss Holmes. He asked me to write a letter to Mr. Johnston, asking him to do so. I then asked him if I understood that he wished to' convey this property without any reservation, and, if so, I stated that Mr. Johnston would hardly deliver the property, under the circumstances, upon a letter written by me. Tie then said, ‘You have all the papers, — all that I have to show for the property,’ — and asked me to proceed at once to take whatever steps were necessary; that he was not business man enough to know how to act. I then advised him to wait, as his physician said he was in no immediate danger, and, being a stranger, I preferred to take no steps in the matter without the presence of some of his family. This was the first intimation from him or any one else of a desire on his part to make any disposition of his property. I think this is the only conversation I had with him about disposing of his property prior to the arrival of Miss Holmes. I advised him before she came that it would be necessary to engage a lawyer. I asked him if he wanted to make a deed, and I spoke to Mr. Alexander concerning this transfer prior to the arrival of Miss Holmes. I don’t think I gave Mr. Alexander the instructions — that is, the explicit instructions — until after Miss Holmes came. He knew there was some paper to be drawn up, and that he would be sent for, but I did not give him instructions until after Miss Holmes arrived. He knew the old man was going to do something. I gave Mr. Alexander Mr. Johnston’s receipt at some time for his use in the prepara
Mr. Hope H. Alexander, the lawyer who drew the papers, and a witness on the part of the defendant, testified to the effect that Dr. Royal J. Miller had informed him before the deceased was confined to his room that he (the deceased) “had spoken to him in regard to procuring the services of an attorney to draw an instrument of conveyance of all his property.” He testified further as follows:
“December 4th or 5th Dr. Miller informed me that my services would be needed. He handed me two slips of paper,— mere memoranda of deposits in certain banks. Dr. Miller and Mr. James wished an instrument having a testamentary effect, but not a will, drawn, conveying all his property to Miss Milliceni Holmes. I took these papers furnished by Dr. Miller, and examined them carefully. I did not understand thoroughly what he wanted, and at noon on the same day I returned to my room at the Hotel Brighton, and went, to see Mr. James. I found him in his bed, and told him that I was in possession of certain memoranda handed me by Dr. Miller, which I did not understand thoroughly enough tO' prepare the instrument requested. I asked him to explain what he wished me to do. He said: ‘I do not want a will. I simply want to give my property to my niece Milliceni Holmes.’ I understood from that what he wanted, and after exchanging a few words I returned to my office. If Miss Holmes had arrived in Thomasville, I did not see her. I had-not seen her up to that time.”
According to both of these witnesses, the deceased had fully determined to transfer his property to the defendant from one to three days before she reached Thomasville, which was on the evening of December 6, 1899. The papers must have been completed or nearly completed before she reached Thom-asville, as they were promptly executed the next day after she got there, and after they were read over to the deceased in the presence of the three subscribing witnesses, and he had declared them to be just what he wanted them to be.
3. Exception is taken to tbe admission of certain testimony of tbe defendant as to certain declarations of tbe deceased made to her or in her presence, and also as to- opinion evidence of certain of tbe nonexpert witnesses as to tbe mental capacity of tbe deceased, without stating tbe facts or circumstances upon which such opinions were based. Such admission of testimony may have been erroneous. But this is= an equitable action. Tbe important question is whether the-findings in favor of tbe defendant are supported by competent evidence. We are clearly of tbe opinion that they are. In-reaching this conclusion we exclude from our consideration, all testimony to which exception was taken. We must bold that the judgment cannot be reversed on tbe plaintiff’s appeal..
4. Tbe defendant has appealed from so much of tbe judg
By the Gourb.- — That portion of the judgment of the circuit court from which the defendant has appealed is reversed, and the cause is remanded, with direction to modify the-judgment accordingly, and the judgment in all other respects is affirmed.