202 Wis. 1 | Wis. | 1930
The testator was eighty-one years of age at the time of his death. He had been for many years a resident of Milwaukee county. He owned some property in the city of Milwaukee consisting of a flat building or apartment house, the rents from which yielded him a monthly income. He also received a pension of $65 a month from the government. He was very frugal in his habits, and denied himself not only the comforts but the full necessities of life. He supplied himself sparsely with the plainest of food. He permitted his property to run down and deteriorate. He never carried insurance on his buildings because of his- indisposition to spend money in that behalf. When urged to do so, he said that if they burned down his pension would support him, and that if his children wanted them insured they could pay for the insurance.
The four contestants are his children. Until the 1st of July, 1928, the most natural and cordial relations existed between the testator and his children, the most conclusive evidence of which is that he executed one will on the 9th of February, 1928, and another on the 9th of June, 1928,' in both of which he left to them all of his disposable estate, share and share alike.
The testator had a serious illness in January, 1928, and remained in poor health thereafter. His daughter Katy, who was divorced from her husband, kept house for him. She had her children with her, one of whom was a boy, whose noisy and boisterous conduct greatly irritated the deceased. The boy’s presence finally became such an annoyance to the testator that, sometime during July, Katy took the boy to Chicago with the determination of turning him over to his father, the divorced husband. While she was gone, however, her daughter remáined to keep house for
On the 8th day of September, 1928, the testator executed a bill of sale of his car to Chris Monday for the expressed consideration of one dollar. On the 9th day of-September Chris Monday went to Milwaukee and got the car. On the 10th day of September the testator executed a will leaving his entire estate to Chris Monday and Mayme Monday. On the morning of September 20th he died. In the forenoon of September 20th, the petition for the probate of the will executed September 10th was filed in the county court of Winnebago county. The objections to the probate of the will were, that the testator had not sufficient mental capacity to make a will, and that the will was procured by undue influence exercised upon him by Chris Monday and Mayme Monday, the beneficiaries named in the will.
The county judge found that at the time of the execution of the will the testator was of sound mind, that no undue influence was exercised upon him to procure the execution
In view of the doubtful proposition of law declared, and in face of the disconsolate view expressed by the county judge as to the attitude of this court in such cases, and the very general, if not casual, treatment of the evidence in the case, it seems incumbent upon us to review the evidence somewhat in detail, and then to deduce the conclusions which a correct application of the principles of law seem to demand, to some extent at least, independently of the conclusions announced by the county judge.
First we may say that we agree with the conclusion of the county judge that at the time of the execution of the instrument the testator was of sufficient general mental
Chris Monday and Mayme Monday were children of testator’s deceased sister. Chris Monday was sixty-two and Mayme Monday forty-five years of age. Both were unmarried and they lived together. Prior to July 22, 1928, the intimacy between them and the testator was that of comparative strangers. Chris Monday testified that he saw the testator at his father’s funeral in 1922 and at his sister’s daughter’s funeral in 1925, and that he had never been intimate with him nor visited back and forth. Mayme Monday testified that she saw the testator in 1926 at her store. His son came into the store, but the testator did not come in. “Mr. Link said ‘Hello’ through the screen door to me. I couldn’t neglect my customers and take care of visitors. I didn’t shake hands with him, although I had not seen him for some time at that time.”
The relations existing between the testator and his sister’s children are well illustrated by the testimony of Emma Monday, the wife of a brother of Chris and Mayme Monday, who testified that she did not know testator’s children very well; that she had met just one daughter once.
With this understanding of the relations existing between the testator and his children, and the relations existing between him and Chris and Mayme Monday, we see that on July 22, 1928, Chris Monday and Mayme Monday journeyed to the home of the testator at Milwaukee and urged him to come and live with them. This prompts the inquiry of how
This indubitably reveals a most striking change in the attitude of the testator towards his children. It is possible that this change of attitude — great as it was — might have resulted naturally, and, if so, he had a right to disinherit his children. It must be appreciated that it might have been brought about by the exercise of undue influence on the part of Chris and Mayme Monday. It must also be appreciated that the new interest which Chris and Mayme Monday suddenly took in the testator may be attributed to kindly and benevolent motives. So, too,. it must be appreciated that such new interest could spring from sordid and mercenary motives. The evidence which will throw some light on these alternative situations, both with reference to the change of attitude on the part of the testator and the motives which inspired Chris and Mayme Monday to a new interest in his welfare, is in part as follows :
John Kluwin, Esq., of the Winnebago county bar, drew the will of September 10th. Mayme Monday went to his office in the morning of that day and told him that her uncle wanted to see a lawyer. He asked her what he wanted to see a lawyer about and she said she did not know. Although
That these expressions of the testator are not in accordance with the facts is established by the undisputed evidence. The daughter Frances whom, it was said, the testator termed a “whore,” was his favorite child, whom he had always loved, and who spent three weeks in January, at the peril of losing her position in Chicago, ministering to him during his sickness. There is no evidence to show that she was the kind of a woman which his statement imputed to her, nor is there any reason to believe that he thought so prior to the time he went to live with the Mondays. There was no truth in the statement that his children had gotten his papers and ran off and left him. His daughter Katy stuck by him, and left him only during the time when she was trying to find a.
It does appear to be true that the son William Link took the license plates off from the testator’s car and used them on his own car, and, while it appears that the testator did not like it, the incident occasioned nothing in the nature of a permanent rupture between them. After the number plates were taken, the testator made the will of June 9th, in which his son William was a beneficiary equally with his
There is much in the testimony of Chris and Mayme Monday to the effect that the testator was embittered towards his children, but there is no testimony on their part that they remonstrated against the testator’s unnatural feeling, or said anything to remind him of the natural relations existing between him and his children, of the duty which he owed them, or to urge him to forget his grievances, real or fancied. This would have been the natural impulse of high-minded and generous natures.
On September 8th a lawyer was summoned to the cottage to transfer the title to the automobile of the testator to Chris Monday. While Monday testified that he did not want the automobile, it was rather for the reason that he had no use for it and doubted whether it was worth taking. If he made any remonstrance to the testator about giving him the automobile, which is not very clear, he did not put it on the ground of testator’s duty to his children. On September 9th Monday went to Milwaukee and got the automobile. While at Milwaukee, Haussman said to Monday that the testator should remember him in his will. On September 10th an attorney is called to the cottage and a will is made. The testator expresses the view that his friend Haussman will be pleased with his disinheritance of his children. The only remark Haussman made to any one concerning the testator’s will was made to Monday the day before its execution. The testator died at 3 :30 in the morning of September 20th. In the forenoon of September 20th Chris and Mayme Monday called at the office of their attorney and, before any arrangements were made for the funeral, or to notify relatives, a petition for the probate of the will of September 10th is filed by Chris Monday'.
We do not intend to attach undue significance to this incident. It is probable that from the standpoint of the
That we have here two of the four elements considered necessary to establish undue influence is not disputed, namely, an opportunity for exercising undue influence and a result indicating its exercise. The evidence also clearly establishes to our satisfaction an easy subject of undue influence. The testator had a serious illness in January and, although his condition improved, he was nevertheless a sick man from that time until his death. His Milwaukee physician diagnosed his ailment as dropsy and cancer of the intestines. The Oshkosh physician who attended him just prior to his death testified that he had edema and severe asthmatic attacks which tended to weaken him a good deal. That he was physically weak is certain. A weakness of mind resulting from his physical condition was quite natural. The hallucinations which he entertained with reference to his children, positively indicate that he was far from his normal mentality. Such hallucinations either amounted to delusions which of themselves would be sufficient to set aside the will, or they indicate the result of undue influence exercised upon his mind.
We have then three elements necessary to constitute undue influence satisfactorily appearing. The only remaining element is a disposition on the part of the beneficiaries of his will to exercise undue influence upon the testator. As to this, there is no direct evidence. However, it is held that where three of the elements are established by clear and satisfactory evidence., slight additional evidence as to the fourth may compel the inference of its existence. Elliott v. Fisk, 162 Wis. 249, 155 N. W. 110; Will of Walker, 193 Wis. 264, 213 N. W. 626.
In Elliott v. Fisk the three elements essential to constitute undue influence were satisfactorily established, and as
By the Court. — The judgment appealed from is reversed, and cause remanded with instructions to deny the probate of the will.