160 Wis. 468 | Wis. | 1915
From the foregoing statement of facts it appears that the testatrix married the contestant late in life when she had grown children by a former marriage, she being fifty-seven years old and contestant thirty-five when they were married; that she executed the will in question on the 28th day of February, 1913, and died on the 6th of the following October.
The evidence shows that the children of the testatrix were very much opposed to the marriage of their mother to contestant, and that such opposition was so radical that some of them did not visit her from the time of such marriage until shortly before she died. It also shows that they were never on friendly terms with the contestant after he married their mother, but on the contrary took every opportunity to snub and even ill-treat him. It is needless to inquire if there was any justification for such conduct. It existed. There is also some evidence that the children evinced a desire to inherit or receive by will the property of their mother, but no direct evidence of the exercise of any undue influence in that respect.
While there is considerable evidence showing that the children felt angry toward both their mother and the contestant, especially the latter, there is practically none showing that she had lost her maternal affection for them. But even if she had, it is a well known fact that parental affection lost or estranged for a considerable period during middle life is apt to reassert itself with advancing years or in the face of approaching death. She managed her own business affairs; she was a strong woman both physically and mentally and probably saw some justification for her children resenting her marriage to a hired man twenty-two years her junior. Be that as it may, the evidence fails to show any intent on her part at any time to disinherit them. In her last illness they all visited her, but owing to the ill feeling that existed between them and her husband she left the farm and went to an adjacent village to live with her husband, who on account of the conduct of the children daring her sickness had been compelled to leave the farm and had secured a home in the village.
The will was made at the farm on the 28th day of February. Five days previous she had suffered a stroke of apoplexy which resulted in paralysis of the motor nerves of her left side. On the 28th she sent for Mr. Seegor Stevenson, a
The testimony of the scrivener and the two attesting witnesses, supplemented as it is by that of several other wholly disinterested witnesses who saw testatrix after her stroke and before and soon after the will was executed, is so clear and convincing as to the existence of mental capacity on the part of the testatrix that it is not deemed necessary to give even a synopsis of it. Moreover, the evidence to the contrary is so vague and unsatisfactory that it can hardly be said to raise a conflict. In substance it is to the effect that she talked with difficulty; that she was weak, restless nights, worrying over her stroke, could not talk long at a time, and had, as the doctor put it, the hallucination of the fear of death— one by no means uncommon even among well persons of an advanced age. The evidence sustains the finding that the testatrix had the required mental capacity to make a will when it was executed.
Aside from the ill feeling and ill treatment which the children invariably manifested toward the contestant and the expressed natural desire to inherit from their mother the
Where a will is made in accordance with the dictates of natural justice it will require strong evidence of lack of mental capacity or undue influence to nullify it. The will of testatrix is a natural one, and the evidence both of lack of mental capacity and of undue influence is so weak and unsatisfactory that the trial court properly admitted it to probate.
By the Court. — Judgment affirmed.