181 Wis. 16 | Wis. | 1923
The probate of the will of Wenzel Novak was contested by appellant and other heirs upon two grounds.: (a) that it was not shown to be the will of Wenzel Novak, and (b) that it was the result of undue influence. The will bequeathed $3,000 to each of four children, $100 to a grandson, and $100 to appellant, a daughter of the testator. All the remainder of his estate was given to John N. Cook and Ferdinand, Novak, in trust, the income thereof to go to his wife during her life, and after her death the corpus of the trust estate to go to his sons Ferdinand and Frederick. The testator was a Bohemian, understood the English language very imperfectly and could .read it not at all. The will was interpreted to him by John N. Cook, one of the trustees mentioned. Upon the probate proceedings Cook was sworn as a witness and testified that he torrectly interpreted the terms of the will to the testator.
It is claimed that Cook was incompetent to testify because he was designated as a trustee in the will. Unless Cook’s testimoiry was competent the proof does not show that the will was in fact that of the testator. Goerke v. Goerke, 80 Wis. 516, 50 N. W. 345. Sec. 4069, Stats., provides that no person in his own behalf or interest shall be examined as a witness in respect to any transaction or communication by him personally with a deceased person. Can Cook’s testimony be said to have been in his own behalf or interest? In Anderson v. Laugen, 122 Wis. 57, 99 N. W. 437, it was held that one named as executor in a will did not have such an interest in the probate thereof as to render him incompetent to testify, to conversations with the deceased, in the probate proceedings. The same conclusion was reached in Geraghty v. Kilroy, 103 Minn. 286, 114 N. W. 838, and in Burmeister v. Gust, 117 Minn. 247, 135 N. W. 980. The
It is not necessary to set forth the evidence relied upon to prove that the will was the result of undue influence. The
By the Court. — Judgment affirmed.