Quale v. White , 128 Wis. 112 ( 1906 )

Dodge, J.

Upon the issues of fact we find no clear or overwhelming preponderance of evidence against the findings, which, therefore, conclude us unless it appear that error was committed by wrong application of rules of law.

It is urged that the will cannot be valid, couched as it was in the English language which the testator did not understand. Out of some contrariety of authority this court has decided that such fact is not an insuperable obstacle to the validity of a testament. Will of Walter, 64 Wis. 487, 25 N. W. 538. Of course in such a case -it should appear clearly that the testator was otherwise accurately informed of the contents and meaning of the instrument in a language which he did understand, but that being established, as we consider to be the case here, there is no more doubt of his purpose and intention in executing it than if his knowledge of the contents were derived from reading or bearing read a document written in a language wbicb be did understand. How, otherwise,, could parties wbo understood no common language become mutually bound to any written contract ?

Appellant invokes tbe rule that proponent must show affirmatively that all the conditions required by the statute in the execution of the will were complied with, and contends that the oral evidence of the subscribing witnesses fails to establish any declaration by the testator of his purpose to execute a will or any request that the witnesses attest it or knowledge that it was being attested by Mrs. Hagestead. "While the rule of law is, undoubtedly, as appellant contends, the oral testimony of those present is not all the evidence. When it is established that testator affixed his signature to the instrument and that the persons whose names appear as subscribing witnesses signed a certificate which declares all the steps required by the statute for due execution, there arises a strong presumption that such steps were taken, and such presumption need not be supported by affirmative memory of witnesses, but, to defeat -the will, must be overeóme by evidence to the contrary. Gillmor's Will, 117 Wis. 302, 94 N. W. 32. In this case the oral testimony tends to establish that the will, which is in full testamentary form, was fully and correctly explained to testator, that he was asked if it was as he wished it and if he desired to execute it, and that he responded in the affirmative, with a request that Mr. Eorseth write testator’s name. Whereupon Eorseth aided testator in making his mark, afiixed his own name as a witness, and said to the other witness within hearing of testator, “Mrs. Hagestead, you sign this,” which she did in the same room, first remarking that the seat on the lounge was too low to write conveniently. We agree with the trial court that there was nothing in this state of the testimony to overcome the presumption above mentioned in favor of the assertions in the attestation clause to the effect that Arneson signed, sealed, published, and de-dared the instrument as his will and that they subscribed as witnesses at his request and in his" presence, although it might be believed that the testator’s eyesight was so dim that he did not actually see the act of' writing.

Appellant also invokes the rule that^iinder certain circumstances, although there is no direct proof of the exertion of undue influence, there will arise a presumption or inference to that effect so as to throw the burden upon the proponent to show that none was exerted. The more typical cases elucidating the application and limits of this doctrine are collected in Vance v. Davis, 118 Wis. 548, 95 N. W. 939. It is, however, rendered plain by the findings that the trial court was guilty of no mistake or oversight in this respect, and he finds as fact that the situation to arouse such a presumption was not established by the evidence. There being nothing to indicate that this rule of law was ignored or misapplied, we must abide by this finding of fact in the absence of any clear preponderance of evidence against it, which we have already declared.

We are persuaded that the concurring decisions of the two lower courts should have convinced the guardian ad litem of appellants that there was no such doubtful question or probability of a different result in this court as to make it his duty to appeal, and that respondent should recover costs in this court.

By the Court. — Judgment affirmed.

•Oassoday, O. J., took no part.