Donovan v. Hyde , 141 Wis. 41 ( 1909 )

The following opinion was filed October 5, 1909 :

Dodge, J.

The principal question presented is a pure issue of fact on which the cire.uit court has reached a conclusion. We do not feel justified in saying more about the evidence than that we fail to find any clear preponderance against such conclusion. '; “

. Error is assigned, and some argument indulged, upon admission of testimony of the Scrivener to personal transactions with the deceased, objectionáble by reason of asserted interest under the will; but the record discloses that such testimony was received merely de dene esse, and does not show that any part thereof relating to personal transactions was considered by the court. Hence no error affirmatively appears in that respect.

Another assignment of error is in the award of costs- against the contestant in circuit court. The circuit court was in better position than we can be to weigh any considerations for or against such award and to exercise sound discretion thereon. We cannot find anything in the record to persuade us that that discretion has been abused.

By the Court. — Judgment affirmed.

Winslow, C. J., took no part.

Upon a motion by the appellant the mandate was, on De'-cember 1, 1909, modified and amended so as to direct that the taxable costs of both parties be paid out of the estate, but that no costs be taxed for printing the case.