59 Wis. 60 | Wis. | 1883
The facts present a case where, at a certain time during the marriage, Frederick, the husband, caused to be conveyed to Fredericka, his wife, the premises in question on a nominal consideration, and for love and affection. In June, 1881, Fredericka died, but during her last sickness, and some fourteen hours before her death, she ostensibly executed the deed conveying back to her said husband the same lands through an intervening party, and since that time, in Dercember following, Frederick intermarried with his wife Dora, one of the defendants, and has so disposed of said lands as to cause the title thereof to be vested in her, to the disinheritance of the children of the first marriage. This is sub
The point that there is ah improper joinder of parties, plaintiffs and defendants, seems not to be urged in the brief of the learned counsel for the respondent, but they would all seem to be proper in such a case. Kerr on Fraud & M., 479; Bigelow on Fraud, 378; Armstrong v. Pratt, 2 Wis., 299; Newcomb v. Horton, 18 Wis., 566; 1 Story’s Eq. Jur., §§ 23, 71, 225. Some evidence relating to circumstances of coercion, antecedent to the time when the deed was made, was rejected by the court. This ruling would not be error in itself, as in a case at law, if the evidence was competent; and the ruling could have no. other effect than to reverse the judgment, if the excluded evidence was necessary to be considered by this court in disposing of the case; and it is not necessary for such purpose.
The circuit court excluded from its consideration all statements or transactions by the husband with the wife depending upon his testimony, under the rule of the statute, and rendered its findings and judgment upon other evidence alone. Without passing upon this ruling, we will also dispose of the case upon such other evidence. The only question important to be considered is conceded by the learned counsel of the respondent to be, whether the wife was mentally competent and capacitated to make this deed when it was pretended to have been made by her. This is a question of fact, pure and simple. We regret the necessity of being compelled thereto, by the evidence, as we understand it, of differing with the learned judge before whom the cause was tried in our conclusion of this issue. The learned judge had superior means of judging of the-credibility of the witnesses, but from the reported testimony we cannot resist the con-
It may be remarked that the evidence as to her- expressed intention and wish to so deed for the benefit of her husband at a time when she was unquestionably competent, either a. longer or shorter time before the deed was finally executed',, as to the issue of her mental capacity when she actually executed the deed in the manner disclosed by the testimony, is-quite immaterial. The defendants rely upon the- deed, and not upon a previously expressed intention or promise to make it, and the plaintiffs seek to set it aside — First, because it was obtained by fraud and undue influence; and, second, because of the weak and unsound condition of her mind when her signature to it was obtained. These defenses are some
Eredericka Lenhard died in the morning of the 5th of June, 1881, and had been-sick about fifteen days. Dr. Zinn was called on the 1st day of June to attend upon her. He found her suffering from typhoid malarial fever. She was confined to her bed. Her temperature was 104 to 105, pulse 110 to 120, tongue dry and incrusted with a brown coating, urine highly colored, and her spleen enlarged, and with tym-panites of the abdomen, and her mind wandering and delirious, and she was drowsy and difficult to be aroused. He called the next day and found the symptoms and appearances about the same, and on the third day he found her in the same delirious condition, and the other symptoms aggravated, and then informed her husband, Frederick, that she was much worse and she could not recover. She was then in a stupor. Dr. Nauman testified, from the statements of Dr. Zinn, that she was in a comatose ancf delirious condition, which precluded the idea of mental soundness, and that there was a suspension of the ' mental faculties. Dr. Rogers, from the same statements of Dr. Zinn, testified that from his knowledge of such cases, when a patient is afflicted with such a disease soon to be followed by death, with delirium and in a comatose condition, he is mentally incapaci
This is the most striking case of utter incapacity to execute a deed that can be imagined. Any comments upon the evidence would only weaken it; it is too plain for ar
By the Court.— The judgment of the circuit court is reversed, and the cause remanded with direction to render judgment according to the prayer of the complaint, except as to the payment by the said Frederick Lenhard, Sr., to the plaintiffs of the $300 received by him on any contract of sale, and except, further, as to any rights of the said Frederick as tenant by curtesy of said land.