Fox v. Martin (In re Stickney's Will)

• Decision Date: 24 November 1899
• Citation: 104 Wis. 581,80 N.W. 921
• Parties: IN RE STICKNEY'S WILL. FOX ET AL. v. MARTIN.
• Court: Wisconsin Supreme Court

104 Wis. 581

80 N.W. 921

IN RE STICKNEY'S WILL. FOX ET AL.

v.MARTIN.

Supreme Court of Wisconsin.

Nov. 24, 1899.

Appeal from circuit court, Waukesha county; James J. Dick, Judge.

The will of W. H. Stickney, proposed for probate by Everett Martin, was contested by Ellen A. Fox and others. From a judgment of the circuit court reversing a judgment of the county court, and declaring the will void, proponent appeals. Reversed.

Appeal from a judgment of the circuit court for Waukesha county reversing a judgment of the county court of such county, respecting the validity of the will of Warren H. Stickney, and decreeing such will void on the ground of undue influence. Mr. Stickney was possessed of a small amount of personal property, a farm consisting of 190 acres in Waukesha county, and a tract of land in Dunn county, the latter supposed, from the consideration named in the deed, to have been worth about $900. He had three children, all adults,--two sons, Joseph Hollis Stickney and Percy Warren Stickney, and a widowed daughter, Ellen A. Fox, who had two children and was in very poor circumstances. The testator had eight brothers and sisters. Before making his will he made a deed and left it in possession of the person who drew it, conveying the Dunn county land to his son Hollis. He also made a bill of sale, conveying to Everett Martin, a brother-in-law at whose home he lay sick, his personal property. He willed his homestead to his three children, his brother-in-law Martin, and five of his brothers and sisters, including Mrs. Martin, in equal shares. Elva J. Nicolai, a sister living a short distance from the home of the Martins, Volney J. Stickney, a brother, and Alice M. Fraser, a sister, all living near, were not remembered by the testator in his will. On the trial the foregoing facts appeared, and the following, upon which the contestants rely to establish their claim that Everett Martin and wife unduly influenced the testator to make the will as he did. None of the testator's children or his brothers and sisters, outside of the Martin home, were notified of the making of the will so they could be present. Martin and his wife were present and were remembered to a much greater extent than the other relatives. The testator made statements during the later years of his life that he intended that his children should have his property. There was evidence tending to show that Mrs. Martin did not like the daughter Ellen, and had advised the testator, while Ellen and her children were living with him, to get rid of her if he could not get along otherwise. There was also evidence tending to show that when the daughter called to see her father after the will was drawn, Mrs. Martin told her that he was not in a condition to be seen. Mr. Martin, by direction of Stickney, procured the presence of Thomas F. Bayley for the purpose of preparing some papers for Stickney. Stickney was 57 years of age at the time of his death. He was divorced from his wife about 1885, the custody of his three children being awarded to the wife, with whom they resided most of the time thereafter. After the divorce the testator lived for about two years with his father and sister Ida (who afterwards became the wife of Everett Martin), on the father's homestead in Waukesha county, Wis. He then, under a deed from his father, took possession of the land devised by his will, and resided thereon alone till 1887. In the meantime his father died. In 1887 he induced his daughter Ellen and son Hollis to live with him, because of the fact that he was becoming too feeble to work his farm and get along alone, though he was at that time able to do considerable work. In March, 1898, he required his children to go away because he could not bear the presence and noise of the daughter's children. He lived alone on his farm thereafter till July 31, 1898. On that day he went to the home of the Martins for a visit. He was accustomed to make such visits and to take his washing to his sister to be done. At this time the testator, though able to do considerable work and all his business, was enfeebled physically by rheumatism caused by an old injury to his knee, and some other complaints. He walked by the use of a cane, and sometimes two canes. Soon after he arrived at the Martins on the date stated, he was taken quite ill. The next day he was worse, and, quite early, he sent Martin to procure Bayley to draw some papers for him. Bayley lived some three miles away. On the journey to procure Bayley, Martin stopped at Mr. Nicolai's, a brother-in-law of Mr. Stickney, with whom his son Hollis resided. Martin left word at Nicolai's that Stickney was dangerously ill and wanted Nicolai to come and settle for some potatoes for which he was indebted. There was some dispute in the evidence as to whether Martin inquired for Hollis or left word specially for him. Mr. Bayley arrived at Martin's place about 9 o'clock of the day mentioned and before seeing Stickney requested Martin to find out about the papers that were to be drawn. Martin then interviewed Stickney and thereafter gave instructions for a deed to be drawn conveying the Dunn county land to Hollis, but said nothing about a will. Bayley, after drawing the deed, conversed with Mr. Stickney about the will, no one being present but the two. After receiving Stickney's instructions he drew the will and read it over to him, no one else being present, and the testator expressed his satisfaction with its provisions. Martin and Charles Haese were then called in and the will was executed, the former knowing nothing about its contents. Mr. Stickney sat up in bed, getting to that position without help. Martin sat behind him so that he could steady his body by leaning back, and then, with a piece of board on his lap and the draft of the will on the board, he wrote his name to the paper. He then lay down and the piece of board was placed on the side of the bed, and, using that as a rest for the will, Charles Haese and Mr. Bayley, at the testator's request, signed as witnesses, each in turn kneeling down at the bedside when writing his signature. In the position they occupied when writing their names the testator could not see them write, which caused him to remark: “I suppose you are signing, but I could not swear what you are doing,” whereupon Mr. Bayley told him that it was not necessary that he should be able to swear to that fact; that it was sufficient that the witnesses were able to swear that they signed the will as witnesses in his presence. Mr. Martin, after consultation with Mr. Stickney, paid for drawing the papers, and told Bayley to keep the will. Mr. Nicolai, in response to the request to come over and settle for the potatoes, happened in during the time the papers were being drawn, and made such settlement, doing the business with Mr. Martin. Nothing was said to him about the will. The son Hollis visited his father in the afternoon but was not told about the execution of the papers referred to. No directions were given by Stickney as to what to do with the bill of sale or the deed. Martin took the former and Bayley kept the latter to perfect it for record by affixing thereto a revenue stamp, and to then deliver it to Hollis, which he did, after some delay on account of difficulty in procuring the stamp, but not till after Stickney's death, which occurred the eighth day after the papers were made. Stickney was a very eccentric man, who had his own peculiar notions and carried them out, customarily, in his own way. He was of sound disposing mind and memory when he made the will. The court, added to some advisory findings by the jury, found as facts that Mr. Stickney executed the will with full knowledge of its provisions, and was of sound mind and testamentary capacity; but that he was very ill, suffering from pain, and that the will was not his free and voluntary act, but an act performed by him under undue influence exerted upon his mind by Everett Martin and his wife to obtain special benefits to themselves to the detriment of the testator's children. Judgment was rendered accordingly.

Tullar & Lockney, for appellant.

Ryan & Merton, for respondents.

MARSHALL, J. (after stating the facts).

Is the finding of fact that the will was procured by undue influence, and for the benefit of Everett and Ida F. Martin, supported by the evidence? An answer to that is conclusive of this appeal.

The challenged finding, as indicated in the statement of facts, was primarily made by a jury. It became the decision upon which the judgment rests by adoption by the trial court. A careful reading of the evidence fails to disclose the foundation for it, keeping in mind that reasonable probabilities, arising from such evidence, excluding mere speculation and conjecture, must govern. Looking elsewhere than to the evidence for a solution of the inquiry as to where the jury went for the inference embodied in their verdict, the instructions given by the trial court seem to furnish a key to the situation. They cover some 24 printed pages, about half as much as the entire evidence in the case. On the particular question under consideration they are quite exhaustive, referring to almost every circumstance said in the books to be evidentiary of undue influence. In that regard the instructions indicate much learning and industry, but as a clear, concise statement of the law applicable to the particular question which the jury were called upon to decide on the evidence, they are very misleading. It is the better practice, in submitting questions to a jury, to observe the rule that instructions should be confined to such a statement of the law as to each question as is called for by the evidence, and necessary to enable the jury to answer it intelligently. A long, argumentative discussion of principles, full of suggestions as to evidentiary facts, pointing to their probable existence, though there be no evidence to support that view, is...