Will of Weber

Crownhart, J.

This is an appeal from an order admitting the will of Louise Weber, deceased, to probate. The appellants contested the probate on the grounds that the will was procured by undue influence of a son, Nicholas Weber, a beneficiary under the will, and that the testatrix was incompetent to make a will at the time because of senile dementia. A large amount of testimony was taken, and at the conclusion of the hearing the court made his findings of fact. The third and fourth findings are as follows:

“3. That at the time of the execution and publication of said instrument as aforesaid the said Louise Weber was of sound and disposing mind and memory and of full age to execute a will, and was in all respects competent to dispose of her estate.

“4. That at the time of the execution and publication of said instrument as aforesaid said Louise Weber was not under any undue restraint or influence, and that the said will is her free act and deed.”

An examination of the evidence convinces us that it amply sustains the findings of fact of the trial court. It is unnecessary to review the evidence, which is extensive and taken up largely with details.

The essential facts, briefly stated, are: Testatrix’s husband died in September, 1918. On October 22, 1918, at the age of seventy-six, testatrix made her will. At that time she was the mother of six living children. She lived on a small farm in Milwaukee county, and with her lived her daughter Lillie, who was incompetent. The other children, two sons and three daughters, lived at various places in Milwaukee and Waukesha counties. All were on friendly terms with the mother. Shortly before the will was made Nicholas told his employer, Lange, that his mother wanted to see Lange about drawing a will. Lange ryas a friend of her husband before he died, and had been to the farm home and was acquainted with the testatrix. Lange went out to the farm with Nicholas and saw the testatrix. He 'then went to Judge Sheeidan, of the Milwaukee county court, and requested him to draw a will for the testatrix. Judge Sheridan went to the farm with Lange, met the testatrix in the presence of Lange, and took a memorandum of how she wished her will drawn, went back to Milwaukee, drew the will in blank, and gave it to Lange. Lange, with two men working for him, and Nicholas, drove out to the farm. Nicholas did not go into the house; the others did. Lange read the will, paragraph by paragraph, asking testatrix after each if that was the way she wanted her will, to which she answered in the affirmative. Afterward she signed in the presence of the three witnesses, who each signed as witnesses in her presence and in the presence of each other, at her request. The will contains the usual attesting clause, including this statement signed by witnesses: “We further state that in our opinion the testatrix is of sound and disposing mind and memory.” Testatrix then gave the will to Lange, with the request that he take care of it. Lange placed it in his deposit box in a bank, without disclosing it to Nicholas or any one else, and there it remained until testatrix died in December, 1926.

The will, in view of the circumstances, was a natural one. Testatrix had only a small estate of some $7,000. She had an incompetent daughter, who could not take care of herself, and very naturally that gave her most concern. Her other children, while poor, could get along and care for themselves. Nicholas was the son who looked after his parents’ comfort more than the others, and to him the mother turned to look alter the incompetent daughter. She therefore gave each of her children one dollar, excepting Nicholas and Lillie. To Nicholas she gave in trust all the balance of her property, the income thereof to be used to support Lillie, and the remainder to Nicholas at Lillie’s death.

There is no satisfactory evidence that Nicholas brought any pressure to bear on his mother to prefer him in her will. He was not present when Judge Sheridan interviewed his mother for data to draw the will; he was not present when the will was signed; he never saw the will until after his mother died. Under the will Nicholas gets nothing during the life of Lillie, and Lillie may survive him.

The evidence of testatrix’s incapacity to make a will is based on details of her life and conduct, which might mean much or little according to the court’s view of the testimony as it came from the witnesses in court. The evidence was of facts and circumstances long gone by, and which might be greatly magnified in the.minds of witnesses in that time, or their memory might be fallible. The trial judge, who heard and saw the witnesses, could best judge of the weight to be given evidence of that kind.

The appellants complain that the court refused to admit in evidence a judgment of the circuit court, entered in 1926, to the effect that testatrix, in 1920, and “for a long time prior thereto,” was incompetent to make a deed of her property. The ruling of the court was correct. Presumptions do not run backward, and a finding of incompetency in 1920 is not evidence of incompetency in 1918. Small v. Champeny, 102 Wis. 61, 78 N. W. 407.

The appellants claim that the failure of Nicholas to testify on the hearing created an inference that he refrained from testifying because the truth, if made to appear, would not aid his contention. That is a general rule, which does not prevail here, for the absence of Nicholas from the witness stand was accounted for by his illness.

There is really no serious controversy over the law of the case. The contest is over the facts, and the findings of the trial court are sufficiently supported by the evidence so that they cannot be disturbed.

By the Court. — The order and judgment of the county court admitting the will to probate are affirmed.

Doerfler, J., took no part.