117 Wis. 302 | Wis. | 1903
The rule of law is thoroughly well established in this state that the subscription and attestation of a will by witnesses who declare, over their signatures, acts essential to the due execution of the instrument, raise a strong presumption in favor of the fact, and that such presumption can be overcome only by clear and convincing proof to the contrary, and that mere indefiniteness of recollection will not suffice. “A will purporting on its face to be legally executed should not be defeated on any doubtful or inconclusive parol proof that it was not legally executed.” In re Meurer's Will, 44 Wis. 392; In re Lewis’s Will, 51 Wis. 101, 7 N. W. 829; Allen v. Griffin, 69 Wis. 529, 35 N. W. 21; In re O’Hagan’s Will, 73 Wis. 78, 40 N. W. 649; Adams v. Rodman, 102 Wis. 456, 78 N. W. 588, 759; Flood v. Kerwin, 113 Wis. 673, 89 N. W. 845; Cassoday, Wills, § 223 et seq. The will under consideration bears upon its face, signed by two witnesses, a declaration that every step essential to its valid execution was duly taken. Upon examination of the testimony of the only surviving witness, we find nothing more than vague impres
Further, it is claimed that this witness shows that there was no request by the testator that either of the witnesses subscribe as such, and that the other witness, Edminister, was not present in the room to see the testator sign or hear him acknowledge his signature, and that he subscribed in another room, not in the testator’s presence. The testimony on this siibject is even more vague and incomplete than that upon the order of signatures. While the witness does say that it is his impression that Edminister affixed his signature in the outer office and not in the private office where he thinks the will was signed, there is nothing to indicate that such subscribing was
Without going further at large into the testimony, the foregoing suffices to show the situation, and to make obviously applicable the rules of law above stated. The trial court having^ duly found all the detailed facts constituting due execution of this will, we cannot hold that such testimony constitutes a clear or overwhelming preponderance of evidence against that offered by the instrument itself.
By the Court. — Judgment affirmed. Taxable costs of both parties in this court to be paid out of the estate.