207 Wis. 404 | Wis. | 1932
In reaching the conclusion just mentioned, the court, it seems to us, was dominated by equitable rather than legal considerations. That a will does not divide an ' estate equitably among those who are the natural objects of the testator’s bounty is not of controlling importance in determining the question of undue influence. Such a will is not to be considered in the light of what the court, in a particular case, deems just or unjust, but rather in the light of what the testator really desired. If a will expresses the
“Was the will such a one as the testator wanted to make? His reasons for so making it may be good or bad, or there may be no reasons whatsoever for the making of it. If it is clearly apparent that it was in fact his will, it is immaterial what reasons he had for the making of the will in the manner in which it is made. He is entitled to have his will carried out according to its directions.” Will of Lotwin, 186 Wis. 42, 49, 202 N. W. 151.
In view of- the numerous and well considered cases found in our Reports involving undue influence, it may be wholly unnecessary to review the established and governing law. Plowever, a brief review of the law as to undue influence in connection with the facts of this case may tend to make more clear the views of the court expressed herein.
One of the most important rights that a person of full age, mature mind, and disposing memory enjoys is the absolute right to dispose of his property by will as he may choose. Vance v. Davis, 118 Wis. 548, 95 N. W. 939; Ball v. Boston, 153 Wis. 27, 141 N. W. 8.
It is of course elementary that this right to make a will must be exercised when the testator has testamentary capacity and when he is not subjected to undue influence. The general characteristics of undue influence are stated by Mr. Justice Marshall, speaking for the court, in Ball v. Boston, supra, as follows :
“The actor is treated as a wrongdoer — one bent upon a reprehensible purpose; the other as his unwilling or unsuspecting, in any event under the circumstances, powerless victim of the purpose effected by ‘that subtle species of fraud’ — where such helplessness to resist direct or indirect*411 suggestion is produced by ‘insidious approaches, seductive artifices, or other species of circumvention.’ Undue influence is the very antithesis of right influence. It exists only where there is practical destruction of voluntary volition,— at least, is moral coercion for an ulterior purpose.”
Undue influence should not be confused with that highly proper influence which results naturally from . kindnesses done, or love and affection bestowed, which rightly and naturally give rise to feelings of esteem and gratitude. Ball v. Boston, supra. As was said in Mackall v. Mackall, 135 U. S. 167, 172, 10 Sup. Ct. 705:
“ ‘Influence gained by kindness and affection will not be regarded as ‘undue’ if no imposition or fraud be practiced, even though it induce the testator to make an unequal and unjust disposition of his property in favor of those who have contributed to his comfort and ministered to his wants, if. such disposition is voluntarily made. ... It would be a great reproach to the law if, in its jealous watchfulness over the freedom of testamentary disposition, it should deprive age and infirmity of the kindly ministrations of affection, or of the power of rewarding those who bestow them.”
In this state undue influence is considered as a species of fraud and must be established by clear, convincing, and satisfactory evidence. Ball v. Boston, supra; Duncan v. Metcalf, 154 Wis. 39, 141 N. W. 1002; Will of Skrinsrud, 158 Wis. 142, 147 N. W. 370; Will of Boardman, 178 Wis. 517, 190 N. W. 355; Will of Shaver, 187 Wis. 647, 205 N. W. 320; Will of Fortner, 188 Wis. 594, 206 N. W. 969.
“Undue influence ‘cannot be presumed from conjecture or suspicion without reasonable and satisfactory proof of facts establishing the contrivance and undue influence.’ ” Will of Wallace, 197 Wis. 323, 326, 222 N. W. 255.
The four elements necessary to be proved in order to establish undue influence are, as follows: (1) A person un
Since the court found that undue influence had been exercised and since findings of trial courts are not ordinarily disturbed on appeal unless they are against the great weight and clear preponderance of the evidence, a consideration of the evidence in connection with the elements constituting undue influence seems advisable.
(1) Was deceased, on the 13th day of April, 1928, unquestionably susceptible to undue influence?
While she was, at that time, about eighty-eight years of age, she was neither insane, feeble-minded, nor in an advanced stage of senile dementia. She was, to be sure, feeble and infirm, slightly stooped in posture, somewhat deaf, and partially blind so as to be unable to read without glasses. She seems, however, to have been in the possession of her mental faculties and undoubtedly knew what she herself wanted, with whom she preferred to live, and what she wished to do with her property. The evidence reveals that she was able to stand her ground and to insist on her wishes being respected. On March 26th, a little more than two weeks before the will was made, when the Wrights removed to their new home she was importuned to accompany them, but refused to do so. She manifested on this occasion rather unusual strength of character and refused to yield to the wishes of the Wrights. She wished to live with George and did not care to reside with the Wrights where he could not be. This desire to live with George did not suddenly arise as a result of anything that happened on the day in question. As early as December, 1927, she had given
(2) Was there an opportunity to exercise undue influence ?
It may be stated that such opportunity did exist. At the time the will was drawn deceased was living with the Coles, and almost every day between the 26th of March and the 13th of April George called upon her and visited with her. It therefore appears that George had an opportunity to exercise undue influence upon his mother to make a will in his favor.
(3) Was there a disposition on the part of George, clearly and satisfactorily shown, to exercise undue influence upon-his mother to make a will improperly favoring him?
The record is quite devoid of any actual evidence, either direct or circumstantial, bearing upon this issue. “Disposi
(4) Was there a result clearly appearing to be the effect of the supposed undue influence?
The trial court concluded that the will was unnatural in that no mention was made of Robert Ziebell. Under all of the circumstances we cannot so regard it. There is no evidence justifying the conclusion that any particular affection ever existed between the deceased' and. her grandson, Robert. Although the latter' and his wife called on the
By the Court. — Order reversed, with directions to admit the will to probate.