In re Will, 110 Wis. 70

110 Wis. 70 | Wis. | 1901

WiNslow, J.

A preliminary objection is made by the respondents that the executor is not aggrieved by the judgment refusing to probate the will, and hence cannot appeal. The principles stated in the case of In re Luscombe’s Will, 109 Wis. 186, are decisive against .this contention. In that case the appellant was a testamentary trustee who appealed from a judgment cutting off the rights of unborn cestuis gue trustent, and it was held that the trustee was both entitled and bound to protect their possible rights by appealing. Here the appellant is an executor who has qualified and entered upon the duties of his trust. While so acting a judgment is entered putting an end to his trust and to the right of the beneficiaries thereunder. It seems very clear that it is the duty of the executor to protect and enforce his trust, and to take all such steps as in the exercise of sound judgment seem reasonably necessary for that purpose against persons who are seeking to destroy the trust. Any other course would constitute a dereliction of duty. Hesterberg v. Clark, 166 Ill. 241. Were the contest simply one between two beneficiaries, sui juris, to settle their respective rights under the terms of the trust, the question would be different, and it might perhaps be said that the trustee would not be aggrieved by a judgment determining their rights, because the trust itself is not attacked, but simply interpreted; but, where a judgment effectually destroj^s the trust, there would seem to be no doubt of the fact that the trustee, in his official capacity, is aggrieved thereby, and that it is his duty to vindicate his trust by taking such legal steps for that purpose as in the exercise of good faith seem reasonably necessary.

Passing to the merits of the case, we are confronted with a large mass of testimony upon which are founded the conclusions of the trial court that the testator had not testamentary capacity and made his will under undue influence. We have patiently and carefully read this testimony, and have reached the clear conclusion that neither finding is justified by the evidence. There is really no tangible fact in the evidence which shows that the testator lacked testamentary capacity. It is true that the contestants all testified, in general terms, that in their judgment their father was incapable of doing business or making a will, and it is also true that a number of disinterested witnesses testify to the same effect; but it cannot fairly be said that any witness testifies to a single solid, convincing fact which justifies such a conclusion. Nonexperts may give their opinions as to the soundness of a person’s mind, when they have first shown such personal intercourse with the person in question as satisfies the court of their ability to give an intelligent, opinion. Crawford v. Christian, 102 Wis. 51; In re Welch, 108 Wis. 387. If, however, the acts and conversation of the supposed incompetent person, when detailed by the witness, show merely mental eccentricities, as distinguished from weakness of mind or delusions affecting testamentary capacity, it is very evident that the opinion of the witness that the person in question is or was incapable of making a will must have very little probative force. Testing the evidence before us by these principles, we can give very little weight to the opinions of the witnesses to the effect that William Butler did not have testamentary capacity when he executed the will in question. That he was an old man of irascible and violent temper is sufficiently shown. That his eye pained him greatly at times, increasing his irascibility, is certain. That the unfortunate family troubles which surrounded his later years made him frequently suspicious and violent is also certain. That he did not reason with entire justice to his children or his wife who were engaged in this controversy may be admitted. But all these things do not show incapacity to make a will. The actions which' were relied upon by the witnesses to show incapacity were, principally, that he was changeable in his conversation; that he would get up nights, and wake up the family, and say somebody was around; that he sometimes took a stick and hammered on the fence; that he watched the actions of members of the family, sometimes dodging behind trees; that he showed no adequate concern at his wife’s illness, saying that he was as sick as she was; that he threatened suicide; and that some days he acted kindly to his wife, and sometimes would not speak to her.

All of these eccentricities are easily explainable, and have little weight as tending to prove unsoundness of mind, when the terrible pain of the injured eye is considered, which frequently kept him awake nights, and when we also consider the discord in the family, in which all were involved, and which proceeded to such lengths that the mother refused to see the sons.

There is practically an entire lack of evidence that the testator had any difficulty in remembering what his property consisted of, or where it was or what it was worth, or that he had any difficulty in remembering his relations to his children. On the contrary, there was very satisfactory evidence that two weeks before his death, while he was at James Butler’s house, he talked freely of his property, and stated in detail all the property that he. had on his home farm, enumerating the stock and grain, tools and vehicles, and placing values thereon which were all substantially accurate and correct. The evidence, also, that he had an accurate knowledge of his property, and communicated it to Mr. Templeton (a disinterested party) when he went to have his will drawn, is entirely satisfactory. 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 ? In re Lewis’s Will, 51 Wis. 101.

Applying this test to the present case, it may be said without hesitation that there is no tangible evidence in the case which throws even serious doubt upon the testator’s ability to do all of these things at the time he executed his will.

Passing to the question of undue influence, there is even less testimony in support of this contention than in support of the contention of lack of capacity. It is clear that the testator was greatly embittered against those members of his family who justified the commencement of guardianship proceedings, and that he made the will while feeling this bitterness; but he had not been under the influence of the parties who are benefited by the will, but, on the contrary, had been living with the Eussells, who belonged to the other faction,’up to the very time the directions for drawing the will were given to Mr. Templeton. The situation had not .arisen when a presumption of undue influence arises, and, even if it had, still the clear and undisputed testimony of Mr. Templeton, showing the testator’s independent action in the dictating of the terms of the will, in connection with the other facts in evidence showing that the will was the result of the testator’s own determination, would be entirely .sufficient to overcome the presumption.

Pages might be filled with detailed statements of the testimony of the various witnesses in this case, but it is not deemed either necessary or justifiable. It is sufficient to say that the entire testimony shows, without serious doubt, that the testator was entirely competent to make a will, and that his free agency was not destroyed or impaired by the influence of others, and hence that the decree of the county court admitting the will to probate should have been affirmed.

By the Court. — Judgment reversed, and action remanded to the circuit court with directions to affirm the judgment <of the county court of Waukesha county.

On May 21,1901, a motion by respondents to amend the judgment so as to direct costs of both parties to be paid out ■of the estate was denied.