Roberts v. Roberts ( 1900 )

Dodge, J.

The record is barren of any evidence of mental incapacity. The testator is shown to ¿ave managed his own affairs up to a period much later than the making of the will. Indeed, his mental capacity is not seriously challenged. The record is equally barren of any direct evidence of the exertion of any influence over him by any of the beneficiaries of the will. All that is urged in support of such undue influence is a vague suggestion that Richard 8. Roberts appeared to have a suspicious knowledge that there was a will, while he denied that he had any knowledge of its existence until after his father’s death. The vigor of argument is cast upon a suggestion that the testator was defrauded by the attorney, Maxwell, and supposed that he was devising the bulk of his estate to the contestant, John S., and disinheriting the proponent, Richard S. Of this there is no particle of evidence, except testimony of certain witnesses to the effect that they had heard the testator declare on many occasions that Richard should have no more of his property, and by the assertion that the testator was unable to understand enough English (he being a Welshman) to comprehend the will in question. Roth of these circumstances are met by much evidence to the contrary, but, even if they stood undenied, without more to aid them wé should be loath to say that thereby could a court be justified in believing in the perpetration of so gross and unprofessional a fraud by a member of the legal fraternity.

Error is assigned for that the court excluded from consideration the testimony of each of two of the daughters, heirs at law, as to statements made by their father to the other. It is perhaps not entirely clear from the record whether any of these statements were made so wholly with out participation by the witness as to enable her to testify, under the rule suggested in Goerke v. Goerke, 80 Wis. 516, 520, and Wollman v. Ruehle, 104 Wis. 603 5 but we deem it unnecessary in the present case to decide upon the admissibility of that testimony, for, upon a careful examination of the record, which contains it all, we are convinced that the evidence falls far short of justifying a finding adverse to the will on any of the grounds of attack, but, on the contrary, that the findings of the circuit court are supported by the overwhelming preponderance of all the evidence, and that the judgment should not be disturbed.

No abuse of discretion was committed by the circuit court in awarding costs against the appellant. We should be slow to review the discretion in any event, but in this case the facts, so far as apparent, hardly allow belief in the good faith of the appeal, save as appellant may have been rendered. unduly suspicious by his very apparent disappointment.

By the Oourt.— Judgment affirmed.