201 Wis. 148 | Wis. | 1930
The following facts were found by the trial . court upon undisputed evidence: On December 10, 1928, Herman J. Miller died at the home of his son-in-law,
However, the court further found that Miller did not sign the instrument; that he did not request any other person to sign it for him or on his behalf; and that the signature appearing thereon is not the signature of Herman J. Miller, the deceased. In relation to the subject matter of the latter findings, the only testimony of witnesses who were present at the time of the alleged execution of the instrument was that of Mrs. Fairbank and of Bohlman and Wickert, the attesting witnesses. There was no uncertainty, inconsistency, conflict, or contradiction in their testimony; and they were neither discredited nor impeached in any respect. They testified in substance that the signature “Herman J. Miller” which appears on the instrument was his signature; that it was written by him; that no part was written by any one else; that Mrs. Fairbank held his arm just above the wrist, to steady his hand, but she did not assist him in making the letters, nor use any pressure to make his name; that Bohlman and Wickert were in the room when Miller signed
On the other hand, the only attempt to contradict the testimony of those three witnesses, who thus testified as to what they saw and heard occur in their presence, is by the testimony of two witnesses who expressed mere opinions as to the genuineness of the alleged signature. One of those witnesses testified that in his opinion Miller’s signature to the will had none of the characteristics of the German character or style of some other handwriting of Miller which was admittedly genuine. The other witness testified that in his opinion the alleged signature of Miller was not in the same handwriting as the admittedly genuine signatures.
After a review of all of the evidence we have concluded that the trial court’s findings that Miller did not sign the instrument and that his alleged signature thereon is not in fact his signature are contrary to the clear preponderance of the credible evidence. In this case, as in Estate of Johnson, 170 Wis. 436, 175 N. W. 917:
. . The positive testimony of witnesses whose integrity and credibility is otherwise unassailed is not outweighed or overcome by the testimony of handwriting experts, who express opinions only. The testimony of honest witnesses who ■state that they know what they testify to is more convincing than theory. It is not likely that the testimony of the several witnesses who testify that they were present and know what took place would make up such a story.”
We do not positively know whether Miller signed the writing in question; the' handwriting experts do not know; but Mrs. Fairbank, Bohlman, and Wickert testify that they do know, and that Miller did sign it, and upon that credible and competent evidence that he did so sign the court should
By the Court. — The judgment is reversed, and cause remanded with directions to admit the will to probate. The costs taxed in this court to be paid out of the estate.