72 Wis. 22 | Wis. | 1888
Lead Opinion
The following opinion was filed March 27, 1888:
The correctness of the first and second findings of the jury as to the formal execution of the will has 'not been challenged.
1. -The first question that confronts us is as to the jurisdiction of the court. The jurisdiction of a county court extends to the probate of wills of all persons dying testate “ who were at the time of their decease inhabitants of or residents in the same county.” Sec. 2443, R. S. “ If a case be originally within the jurisdiction of the county courts of two or more counties, the court which first takes cognizance thereof by the commencement of proceedings shall retain the same throughout.” Sec. 2444, R. S. “ The jurisdiction assumed by any county court in any case, so far as it depends on the place of residence of any person,- or the location of his estate, shall not be contested in any other action or proceeding whatever, except on an appeal from the county court in the original case, or when the want of jurisdiction appears on the same record.” Sec. 2445, R. S. Here, it sufficiently appears that the testator was an inhabitant or resident of Sauk county at the time of his death
2. The jury found that, the testator was not of sound, disposing mind and competent to make his will at the time of making the will in question. The mere fact that a testator is, at the time of making his will, under guardianship as to his person and property, may not of itself incapacitate him to make a valid will, provided he is capable, at the time, of comprehending the conditions of his property, his relationship to the natural objects of his bounty, and the disposition actually made of his property by such will. Under the evidence, we are unwilling to say that the trial court was not justified in holding, in effect, that at the timo of making the will in question the testator had such comprehension, and hence mental capacity; so that the seventh finding of the jury, standing alone, might be fairly regarded as unsupported by the evidence.
3. This brings us to the last and most difficult question in the case, and that is whether the jury were justified in finding from the evidence, as they did, in effect, (8) that at the time of making said will the testator was under undue and improper influences, which deprived him of his free will. This court has held that “ undue influence, in such a case, is such an influence that the instrument is'not properly an expression of the will of the testator in regard to the disposition of his property, but rather an expression of the
The testator, Michael Slinger, was about seventy-two years of age when he died. The proponent and sole devisee and legatee, Tempest Slinger, was his brother, and nearly seven years younger, and at the time of making the will lived at Merrimack, Sauk county. They were both born in England. Michael married there, and had one daughter. Tempest married there, and had two or three children. Michael and Tempest came to this country together in the same vessel in the fall of 1844. Neither brought any of his family with him. Michael and Tempest both had the same trade, and Michael worked for Tempest for about eleven years. They worked together on jobs in this country, seven or eight yetirs, at Mineral Point, Spring G-reen, Eichland Center, etc. Then Michael did jobs for himself at Eoxbury, Lodi, and other places. "When he would get out of work he would, until more recently, stop and make his home
While in this wretched and destitute condition, and apparently some time in 1882, he suddenly inherited a considerable property, including the $2,000 said to be here involved, by the death of his daughter in England. He was then living with his nephew Stephen Calverly, son of this contestant, at the town of Pacific, Columbia county, Wisconsin. He had been living there, and with Stephen’s mother, most of the time for some years before. But during the year he was at Tempest's four or five weeks. December 29, 1882, Michael made a previous will, whereby he gave to his brother Christopher Slinger, then and since a resident of England, £100 of English money, in the form of a note for that amount which he had thus acquired and held against him; and all the rest, residue, and remainder of his “personal estate, of what kind or nature soever,” he thereby gave to his nephew, Stephen Calverly, Jr., who was therein appointed executor of said will. Thereupon, and upon the petition of said John Slinger, such proceedings were had in the county court for Columbia county (Hon. L. W. BardeN, county judge, presiding) that Michael was duly adjudged to be a spendthrift, and incompetent to have charge of his estate to manage the same properly; and thereupon, and on January 16, 1883, the said county court for Columbia county appointed William B. Currie, of that county, as guardian of said Michael Slinger, and thereby authorized and empowered him to take and have the custody of his person, and the care and management of his estate, until he should be discharged therefrom according to law. Cur-rie qualified as such guardian, and entered upon the duties of such trust. He was the husband of a niece of Michael’s. Michael remained with Stephen most of the time thereafter
In November, 1884, Michael expressed a desire to go to his guardian’s, who lived in the town of Arlington, Columbia county, and some fifteen miles distant from Stephen’s, to get some money, and requested him to take him to the train. Stephen did so, and let him have five dollars, but when he was about returning to his home he discovered that Michael was too much under the influence of liquor to be left alone, and so he took him back to his home with him. Two days afterwards the trip was repeated, but, as soon as they gol. to Portage, Michael got some liquor to drink, and then declined to go to the train, and so Stephen took him home again. Three days afterwards, Michael asked for more money, and proposed to go to his guardian’s alone. Stephen gave him four dollars more, and he got up before daylight on Monday morning, and started off on his own accord; but, instead of going to his guardian’s, he seems to have gone directly to the home of Tempest, in Merrimack, Sauk county. Just how he came to go there at that time a.nd under such circumstances does not appear. But it may be fairly inferred from his conduct and the testimony of Tempest that it was in pursuance of an understanding with, or invitation from, the latter, who testified that three months never passed by, when he was absent, without a letter passing between them. Besides, he says he used to go to see him; and that he had seen him not long before he came at that time,— might have been six or seven months. Just what time in November, 1S84, he left Stephen’s and went to Tempest’s is somewhat uncertain from the evidence. Stephen testified it was the Monday before Thanksgiving. This is corroborated by the testimony of Tempest’s son. Tempest swears that he came there in the early part of November, and this is corroborated by another witness. Certain it is that, as soon as he reached Tempest’s house, all
This sudden change from comparative abstemiousness, under such partial restraint, to the constant temptation of a depraved appetite w'hich had been uncontrollable for several years, with full opportunity for free indulgence, naturally had a controlling influence over the victim, and placed him under special subjection to the man who was expected to continue the debilitating and stupefying supply. The effect on Michael manifested itself soon after his arrival at Tempest's house by his repeated assertions to the effect that he should thereafter make his home with Tempest as long as he lived, with remarks reflecting on the treatment of those who had thus kept him under partial restraint, and that he should make his will and give all his property to Tennpest. The boldness and frequency of these assertions pretty clearly indicate, by implication, a previous invitation and assurance to that effect from Tempest. Such assurances seem to have been emphasized by the action of Tempest. prior to the making of the will, in fitting up a room especially for Michael by plastering and procuring furniture for the same, etc. True, Tempest claims to have paid for most of said furniture with money received from Michael. Whether Michael actually had the amount of money claimed at the time, in view of his want of funds when he started from Stephen’s, may well be doubted, but it is not of much significance. Whether Michael was at Tempest's house three weeks, or only one week, previous to the execution of the will, it would seem that much of the time was occupied by him in talking about making a will, the treatment he had
It is claimed by Tempest, in effect, that for a time he put off Michael’s proposition to make such will, generally with the remark that Michael would'live as long as he did, and that, upon his first taking him to Baraboo, he dissuaded him from making any will. Such hesitancy and delay on the part of Tempest seem to have stimulated Michael’s desire for immediate execution; and such may have been the purpose. However that may have been, nothing seems to have fallen from the lips of Tempest, during the time, inconsistent with his ultimately yielding, as he did, to accept of Michael’s bestowment. At first, Tempest testified that Michael was sober and refused to take wine on the day the will was made, December 2,1881; but on cross-examination he testified that he persuaded Michael to drink a glass of sour wine, and that he took a glass himself at the same time; that Michael would run to extremes, and either drink too much or too little, and that when he took too little he would try and persuade him to drink some, but that he did not generally succeed; that he had “ many a score of times ” persuaded him to take a glass. That afternoon, Tempest took Michael to Baraboo to have his will drawn. They at first went to the county judge, but he declined to draw it. Then they went to the house of Mr. Brown. He was not there at the time, and so Tempest went and got him, a,nd he drew and witnessed the will and retained it in his Custody, and then acted as attorney for Tempest on the probate thereof, and ever since. Mr. Brown had been acquainted with Tempest for some thirty years, and prior to making the will had been attorney for him in at least one case. "With the consent of Michael, Tempest went after the other witnesses to the will,— Mr. Stanley and Mr. Ruland. The will was drawn at the house of Mr. Brown about 7 o’clock in the evening. Mr. Stanley testified, in effect, that Michael
Such were the circumstances under which the will was executed. It appears from the testimony, in effect, that subsequently, and about April 1, 1885, Michael’s guardian went to see him at Tempest's house, and was there informed that he was sick; that Michael then agreed to go to Lodi with him; that somé three days afterwards he went after him again, with three men and a doctor; that Michael then said he did not feel like going; that he then called the doctor in to examine him; that Tempest then wanted to know of the guardian what- authority he had for taking him, and to show his papers; that when Mr. Currie told Tempest that he, was Michael’s guardian but had no papers with him, Tempest said he could not go; that he would die
Upon the testimony thus summarized, we cannot hold that the finding of the jury upon the question of undue influence is contrary to the evidence. The case is very peculiar. Michael was seventy years of age when he made this will. He left his family in a foreign land when he was only about twenty-eight years of age. Though alone, he never had the force of character requisite to accumulate any property by his own exertions. He had for several years been the victim of a,n uncontrollable appetite, which had grown into a burniúg passion. In this condition, he suddenly inherited a considerable property from a daughter whom he had not apparently seen since she was a child. To save him and his estate from being consumed by his own passion, his property and person were place under guardianship. A brother, seven years younger, with apparent self-control, listened with seeming approval to his story of ill-treatment from friends who had thus been trying to save him from his destroyer; and then, with a saloon in his house, deliberately offered him a home as long as he lived, with full and free opportunity to drink when and what he pleased, regardless of results. Too depraved in appetite and passion to fully realize the dangers of his environments, too weak to resist or retreat from the seductive temptations thus presented, with a gloomy remembrance of a recently unsatisfied appetite, with an eager desire to make such opportunities for debauch continuous, he responded to the insidious suggestions for a permanent home by making Tempest his sole legatee and devisee. It may fairly be inferred from the evidence that such assurances of a permanent home were repeatedly made before the will was drawn, and probably offered as an inducement for Michael to leave his former home and restraints.
It is well settled that where the party to be benefited
By the Oburt.— The judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment upon the verdict of the jury and in accordance with this opinion, rejecting probate of the will, and for further proceedings according to law.
Rehearing
Upon a motion fora rehearing there was a brief for the respondent by William Brown, attorney, and H. W. Chynoweth, of counsel, and a brief for the appellant by W. S. Stroud. The motion was denied June 20, 1888.
