166 Wis. 556 | Wis. | 1918
Lead Opinion
The following opinions were filed November 13, 1917:
Many decisions of this court relating to what •constitutes undue influence sufficient to avoid a will are cited
In Elliott v. Fisk, supra, this court said:
“While it is true that a testator susceptible to undue influence ; an opportunity for the exercise thereof; a disposition: to exercise it; and a result indicating its exercise must he established by clear and satisfactory evidence before a court is justified in setting aside a will, yet the clear establishment of three of these essential elements may with slight additional evidence as to the fourth compel the inference of its existence. This is especially true where the will is not what may be termed a natural one, such as relationship usually dictates.”
A great amount of testimony was offered on both sides- upon the question of undue influence. We shall not prolong this-opinion by a discussion of it. The questions involved as appear from the record are purely questions of fact, and both: the county and circuit courts were in far better position to determine these questions than this court, as has been often said by this and other courts.
There is ample evidence to support all the elements of undue influence, and this court has so held in cases where the evidence of undue influence was no stronger than in the instant case. Elliott v. Fisk, 162 Wis. 249, 155 N. W. 110; Will of Lynch, 163 Wis. 466, 157 N. W. 557; Baker v.
Much stress is placed by counsel for respondent upon Ball v. Boston, 153 Wis. 27, 141 N. W. 8. It will be seen, however, upon examination of that case that the controlling facts were quite different from the facts in the instant case, and moreover reversal was put in part at least upon the ground that the lower court did not apply correct rules of law to the facts found.
In view of the repeáted decisions of this court and the es- • tablished rule that the findings of the trial court will not be disturbed unless clearly wrong, we are not able to say that the decision of the court below should be disturbed.
The court below allowed $400 attorney’s fees to the contestants to be paid out of the estate. This is authorized by sec. 4041&, Stats.
By the Court. — Judgment affirmed.
Dissenting Opinion
(dissenting). In this case the testimony is to me clear, satisfactory, and convincing that the testatrix was competent to make a will and that the one propounded here v?as one that she wished to make and that it was not the result of undue influence.
Nothing would be gained by a recital of the facts which lead me to this conclusion and I shall do no more than thus register my protest against what seems to be a disposing of the property of the testatrix in a manner different from what she, having a right to declare her wishes and having freely declared them, willed that it should go.
The proponent and appellant Wallace J. Kircher moved for a rehearing.
In support of the motion there was a brief on behalf of the appellants by Frank II. Ilamiaford and Hubert O. Wolfe
Edgar L. Wood of Milwaukee, for tbe respondents.
The motion was denied, with $25 costs, on February 5, 1918.
