208 Wis. 473 | Wis. | 1932
On August 9, 1926, testatrix executed her last will and testament, and after a bequest of $500 to the children of Albert Gevers, and $500 to Mr. and Mrs. Reitter, provided that the balance should be distributed to four children of a brother, all of whom resided in Germany.
On May 11, 1931, testatrix executed a codicil, which was denied probate by the order appealed from. By the terms of the codicil she gave her homestead, with contents, to Frieda Gevers and Albert Gevers “for the good care I received at their hands in my declining years.” The will was admitted without objection, but objections to the codicil were filed on behalf of the beneficiaries in Germany, upon the ground of mental incompetency and undue influence.
At the time of executing the codicil Martha Grosse was seventy-four years old. She had no relatives in America. She was a widow and the owner of a flat building in Milwaukee. She lived downstairs. In 1928, when the upper flat became vacant, she leased it to Mr. and Mrs. Gevers. The Gevers testified that at that time they had been intimate friends of Mrs. Grosse for some years, and that Mrs. Grosse induced them to move into her flat upon the promise that the
The foregoing is a statement of the history of the case so far as the facts of execution are concerned. The trial court indicated in his opinion that he was fully satisfied that Martha. Grosse was not of sufficient mental capacity. The findings are very inartificially drawn. The only findings of fact that have any remote bearing upon mental capacity or undue influence are the fourth .and fifth findings, as follows :
“4. That said deceased was also mentally affected, during said period, to such an extent that not infrequently she suffered from complete lapse of memory.
“5. That said Frieda Gevers was instrumental to have said codicil executed; and that she kept the execution of the same a secret until the death of said deceased.”
. As conclusions of law, however, the court finds that testatrix was mentally incapacitated to make the codicil, and that •the same was procured by undue influence on the part of Frieda Gevers. While the findings are unsatisfactory, that furnishes no ground for disturbing the order, if the evidence sustains the conclusions of mental incapacity and undue influence. Disch v. Timm, 101 Wis. 179, 77 N. W. 196; Wilkinson v. Wilkinson, 59 Wis. 557, 18 N. W. 527; White v. Magann, 65 Wis. 86, 26 N. W. 260; Jones v. Jones, 71 Wis. 513, 38 N. W. 88; Dietz v. Neenah, 91 Wis. 422, 64 N. W. 299, 65 N. W. 500; Williamson v. Neeves, 94 Wis. 656, 69 N. W. 806.
The question arises, then, whether the court was justified in finding that testatrix was mentally incompetent, and that the codicil was procured by undue influence. It is well established that, in order to set aside a will upon either ground, the proof must be clear, convincing, and satisfactory. Will of Fortner, 188 Wis. 594, 206 N. W. 969; Will of Emerson, 183 Wis. 437, 198 N. W. 441; Will of Lotwin, 186 Wis. 42, 202 N. W. 151; Will of Boardman, 178 Wis. 517, 190
Upon the issue of undue influence it was essential for contestants to establish by clear, convincing, and satisfactory evidence that there was opportunity to exercise undue influence; that there was a disposition upon the part of Mrs. Gevers to exercise it; that there was a susceptibility on the part of the testatrix to undue influence; and, finally, that there was a result indicating that undue influence had been exercised. Will of Lotwin, supra.
That there was opportunity for Mrs. Gevers to exercise undue influence may well be conceded. She lived in the same flat building with testatrix, was on very intimate terms with her, and stayed with her nights during the last six months of testatrix’s life. We think, however, that there was no clear, convincing, and satisfactory evidence 'of disposition on the part of Mrs. Gevers to exercise undue influence, or that such influence was exercised. It is true that Mrs. Gevers reminded Mrs. Grosse of her promise to make a will; that she called Mr. Eisner, procured the witnesses, and on the occasion of the execution of the codicil reminded the testatrix before leaving the room that she had promised her the flat. This may lead to the inference that the conduct of Mrs. Gevers was to some extent influential in causing testatrix to make the will when she did, but it falls short of a clear showing of undue influence. Undue influence has been defined as a species of fraud. Will of Emerson, supra. It must not be confused with mere influence. Will of Schaefer, 207 Wis. 404, 241 N. W. 382. Nor can it be “presumed from conjecture or suspicion without reasonable and satisfactory proof of facts establishing the contrivance and undue influence.” Will of Wallace, 197 Wis. 323, 222 N. W. 255. If the facts heretofore recited do not of themselves furnish clear and satisfactory evidence of undue influence,
It is our conclusion that the evidence does not sustain a finding that the codicil was procured by undue influence.
We have reached the same conclusion with respect to the claim of mental incompetency. The test of mental capacity, as laid down in Butler’s Will, 110 Wis. 70, 85 N. W. 678, is as follows:
“The test is not whether the testator did the best or the wisest or the theoretically just thing in his will; but, Did he have sufficient active memory to collect in his mind and comprehend, without prompting, the condition of his property, his relations to his children and other persons who might properly be his beneficiaries, and the scope and bearing of his will, and to hold these things in his mind a sufficient length of time to perceive their obvious relations to each other, and be able to form some rational judgment in relation to them?”
Having in mind the burden to show mental incompetency by clear, convincing, and satisfactory proof, we think that the testimony offered to show incompetency indicates that at times during the last year of her life Mrs. Grosse was forgetful, had difficulty in sustaining a conversation, would talk
“Neither old age nor its infirmities, including untidy habits, partial loss of memory, inability to recognize acquaintances, and incoherent speech, wifi deprive a person of the right to dispose of his own property.”
We have, then, this situation: An aged woman, conceded by all who knew her to be subject to spells of forgetfulness and to occasional inability to recognize acquaintances, makes a will at a time when a reputable attorney and the witnesses
There remains to be considered the expert testimony of Dr. Powers. Dr. Powers never saw the testatrix, and his opinion as to her competency is entirely based upon a hypothetical question. In this hypothetical question the age and the health of the testatrix were stated, together with the various items of evidence as to her lapses of memory, her failure to recognize friends, her frequent impressions that events that happened years ago had happened only recently. The doctor stated that these circumstances would be proof of the mental changes of old age, hardening of the arteries, decreasing mental vigor, and that these infirmities had progressed to a degree in the individual to justify a diagnosis of senile dementia. The doctor very carefully qualified this testimony, however, by stating that this disorder varies in degree. The hypothetical question omits the positive testimony of the scrivener and the witnesses that the testatrix appeared to be rational at the time of executing the codicil. The doctor’s qualification of his testimony to the effect that the affliction of the testatrix would vary in degree, takes
It is our conclusion that the expert opinion in this case does not offer clear evidence of mental incapacity because the hypothetical question was incomplete, and because there is no satisfactory indication, assuming the testatrix to have been in some stage of senile dementia, that the progress of the disease had been so great as to destroy capacity, especially in view of the positive testimony of the scrivener and the witnesses that the testatrix was perfectly rational at the time.
For the foregoing reasons it follows that the judgment must be reversed.
By the Court. — Order and judgment reversed, with directions to admit the codicil to probate.