Duncan v. Metcalf

| Wis. | May 31, 1913

SiebecKER, J.

The trial court refused to admit the proposed will of the decedent to probate, upon the ground that the evidence showed that its execution was procured by undue influence and hence it was not his will. This court in Will of Slinger, 12 Wis. 22, 37 N.W. 236" court="Wis." date_filed="1888-06-20" href="https://app.midpage.ai/document/will-of-slinger-8182886?utm_source=webapp" opinion_id="8182886">37 N. W. 236, characterizes undue influence as follows:

“Manifestly, it 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.”

In Anderson v. Laugen, 122 Wis. 57" court="Wis." date_filed="1904-05-10" href="https://app.midpage.ai/document/anderson-v-laugen-8187938?utm_source=webapp" opinion_id="8187938">122 Wis. 57, 99 N. W. 437, it was declared:

“To sustain this contention it must appear that there was such influence exercised as to amount to moral coercion, ■which, resulted in destroying the testator’s free will and independent action, and constrained him to act against his will and independent wishes in disposing of his property.”

The charge that the will was made as the result of the undue influence of Rebecca Ackerman and her relatives sounds in fraud and requires that it be shown by clear and satisfactory evidence. Ball v. Boston, 153 Wis. 27" court="Wis." date_filed="1913-04-08" href="https://app.midpage.ai/document/will-of-ball-v-boston-8190900?utm_source=webapp" opinion_id="8190900">153 Wis. 27, 141 N. W. 8.

An examination of the record in the case has led us to the conclusion, in the light of these rules of law, that the evidence adduced is insufficient to show that the proposed will was executed by decedent as the result of undue influence. The will is executed with the required formality by the decedent and by witnesses. At the time of its execution decedent was sixty-one years of age. He had prior to this last illness been strong in body and mind and capable of managing his affairs personally. During the winter months preceding the 11th of May, when the will was executed, he had been afflicted with stomach trouble which had caused him considerable pain and confined him to the house and reduced his weight about fifty pounds. A few days before making the will he was informed that his malady was of a cancerous nature and that it would probably prove fatal. This disturbed him much, and he at once spoke to the doctor about making a will, and manifested a desire to be advised by the doctor how to will his property. The doctor declined to do so. On the day the will was made testator gave direction to his son, the contestant, to engage Mr. Tate, the scrivener, to come to testator’s home to draw his will. It appears that testator arose from bed, dressed, and while holding his conference with Mr. Tate and executing the will he sat in a chair. Mr. Tate testified that he and decedent were alone in the room while the will was being prepared and that decedent informed him what provisions he wanted in the will, without ■any prompting or suggestions, and that deceased enumerated to him the property he had and wanted the will to express the wish that in recognition of Mrs. Ackerman’s kindness and assistance to him in the later years of his life he desired to will her the use of the farm as stated in the will. The witness also stated that decedent’s mind and memory were as good as usual and that he acted freely in giving his direction to the witness for preparing the will and signing it and requested the witnesses to sign it in his presence. Neither the son nor Mrs. Ackerman gave any assistance or direction throughout the transactions of preparing and executing the will. The other witnesses present on that occasion corroborate these facts as to the making of the will under these circumstances and that the testator seemed rational and normal in mind and acted in an unrestrained and free manner.

It is contended, however, that the circumstances show that testator and Mrs. Ackerman had lived in illicit relations and that she and her parents importuned and unduly influenced him to will her his property. The evidence as to the existence of illicit relations is all circumstantial and so uncertain as to leave the question in serious doubt. There is no direct, evidence that testator was importuned by these persons, unless'the declarations of testator as testified to by the contestant, Mr. Lyons, and Mr. Orr are proper evidence to establish this fact. Such evidence is not competent to prove' that undue influence was in fact exerted. In the case of Loennecker’s Will, 112 Wis. 461" court="Wis." date_filed="1901-12-17" href="https://app.midpage.ai/document/consaul-v-loennecker-8187155?utm_source=webapp" opinion_id="8187155">112 Wis. 461, 88 N. W. 215, it was; held that “such declarations ‘are admissible only for the purpose of proving the condition of the testator. They afford no> substantive proof of fraud, duress, or undue influence, and are admissible for no such purpose.’ ” Aside from declarations of this nature the record contains practically no evidence that any undue influence was exerted by these persons. Nor do the alleged claims as to Mrs. Ackerman’s relations to. the testator, and her conduct and that of testator at the time or before the making of the will, support the finding that the will was proved to be made by undue influence. The contention that the provisions of the will indicate undue influence is 'wholly without merit. It must be borne in mind that the right to make a will is a sacred one and that every person of sound mind and disposing memory may exercise that right in any way not prohibited by law, and that:

“The highest equity which the courts can consider is the right of an individual to dispose of his property as he chooses. The hope of inheritance which any child may indulge during a parent’s life bears no comparison in the eye of the law with the right of disposal by the parent.” Vance v. Davis, 118 Wis. 548, 95 N. W. 939.

The testator gives us the key to his desire and his reasons for making these provisions for Mrs. Ackerman contained in the will by directing the scrivener that he wanted this declaration inserted: “In recognition of and as a reward therefor, for the kindness and many acts of assistance bestowed upon me by Rebecca Ackerman during the latter years of my life, it is my wish, will, and request that she have the use and control of , . .” his farm, describing it, for the period of twelve years, and then to become the absolute property of his son. What more natural than that he should make these provisions for her in recognition of the years of service before his last illness and the faithful care and attention she gave him throughout his sickness theretofore and which, no doubt, he felt assured she would continue to bestow through his lingering and painful affliction as long as life lasted? His relationship to his son was not such as to suggest that in the natural course of the administering of his business affairs he would, under the circumstances, bestow his property on him to the exclusion of Mrs. Ackerman.

It is argued that the gift of practically all his money to her is proof of the fact that she exerted an undue influence over Mm in the management and disposition of his property. In itself this does not tend to prove that she caused Mm to give it to her through improper means, and there is no evidence tending to show that any approaches or artifices were employed to induce him to give her this money. His declaration to Mrs. Eaueh to the effect that he could not live much longer and that he wanted Mrs. Ackerman to have the privilege of living on this property because she had worked for and helped him accumulate it, tends to show that his state of mind was in harmony with the declared wishes in the .will. We are unable to discover anything in the facts and circumstances adduced wMch satisfactorily indicates that Mrs. Ackerman or any other person practiced any fraud or undue influence on the testator to induce him to make this will. The fact of charging this wrong raises no presumption that it was in fact practiced, under the facts and circumstances disclosed. Such wrong can only be said to exist when the facts and circumstances of the case clearly and satisfactorily show it. It is considered that the legal requirement that the alleged undue influence must be shown by clear and satisfactory evidence is not met by the evidence in the case, and that the finding of the trial court to the effect that the will was the product of such influence, which destroyed the testator’s free will and independent action and constrained him to act against his will, is clearly wrong and must be reversed. The proposed will is entitled to probate as the last will and testament of the decedent, and the court erred in reversing the judgment of the county court.

By the Court. — The judgment is reversed, and the cause is remanded with directions that the court enter judgment admitting the instrument propounded as the will of David Duncan, deceased, to probate, and for further proceedings according to law.