Allen v. Griffin

• Decision Date: 01 November 1887
• Citation: 69 Wis. 529,35 N.W. 21
• Parties: ALLEN v. GRIFFIN AND OTHERS.
• Court: Wisconsin Supreme Court

69 Wis. 529

35 N.W. 21

ALLEN

v.GRIFFIN AND OTHERS.

Supreme Court of Wisconsin.

November 1, 1887.

Appeal from circuit court, Winnebago county.

Chas. E. Pike, for appellant.

Gary & Forward, for respondent.

TAYLOR, J.

This is an appeal from the decision of the circuit court refusing to admit to probate a paper writing alleged to be the will of Charity S. Allen. A paper writing purporting to be the last will and testament of Charity S. Allen, deceased, was offered for probate in the county court of Winnebago county, by Edward Allen, the husband of the said Charity S. Allen, deceased. The probate was opposed by the said respondents. The objections made to the probate of the said alleged will were: (1) That the paper was not duly executed by the said Charity S. Allen, and attested as her last will and testament; (2) that at the time of the date of said instrument the said Charity S. Allen was not of sound mind; (3) that, if said Charity S. Allen signed and executed said paper, her signature thereto, and the execution thereof, were procured by fraudulent practices, and undue influence, exercised by Edward Allen, named as the principal legatee and executor in said paper. On the hearing in the county court, that court refused to probate the will, and from the order of that court refusing such probate the proponent duly appealed to the circuit court of Winnebago county, and upon the hearing of the case in that court probate was again refused, and the proponent appealed from the judgment of such court.

In the circuit court no evidence was offered by the contestant. After the proponent had produced his witnesses and testimony the contestants moved to reject the paper writing proposed as the last will and testament of Charity S. Allen upon the evidence of the proponent, for the reason that it is not established by the evidence that it is the will of a competent testatrix, and executed and attested as required by law to establish it as a will. The motion of the contestants was granted by the court and probate of the will was refused.

The circuit court made the following findings in the case: “(1) That said paper writing was not attested and subscribed in the presence of the said Charity S. Allen by two competent witnesses, as required by law. (2) That said paper writing is not the last will and testament of said Charity S. Allen, deceased.” And as conclusions of law: “(1) That said paper writing should be rejected and disallowed. (2) That the order of the county court of Winnebago county appealed from herein be affirmed.” These findings of fact and conclusions of law were duly excepted to by the appellant.

In this court the learned counsel for the appellant contends that the circuit court erred in finding that the said paper writing purporting to be the will of Charity S. Allen was not attested and subscribed by two competent witnesses, as required by law. And he further insists that this is the only question of fact decided by the circuit court. That which is stated as a second finding of fact is a mere conclusion of law, and not a fact. We are inclined to hold that the contention of the counsel for the appellant is sustained by the record in the case, and that the only material question raised by the testimony in the case, and upon the findings, is upon the execution and witnessing of the paper presented for probate. No evidence was given which in the least tended to show any fraudulent practices or undue influence on the part of the proponent, or any other person, and no evidence was given which tended to show that the said Charity S. Allen was not competent to make a last will and testament at the time she executed the paper writing in question.

The main question in the case, as disclosed by the record, is, was the paper writing executed by the deceased as her will, and was such execution witnessed and attested by two competent witnesses in her presence? After a careful consideration of the testimony, it is very clear to us that it was executed and attested as prescribed by the statute. The learned counsel for the contestant contends that the evidence does not conclusively show that the two persons whose names were placed upon the paper as witnesses at the time the deceased signed it, signed as such witnesses after the same was signed by the testatrix. We think the fair construction of the evidence shows that they did sign after the deceased had signed, and that they signed in her presence. To reject the probate of a will upon such evidence as was offered in this case, on the ground that it does not conclusively appear that the witnesses signed as such after the signature of the alleged testatrix, would jeopardize the probate of very many honest wills. We think, in the absence of clear proof that the witness or witnesses signed before the signing of the testator, it should be presumed that the testator signed first. This would be the usual order of signature. This view of the case seems to be sustained by the authorities below cited. Upon the proofs in this case, it would seem to us that it affirmatively appears that the two witnesses who first signed as witnesses signed after it was signed by the deceased.

If we understand the very able argument of the learned counsel for the respondents, he does not rely with any great degree of confidence on this point. The main argument upon which he justifies the rejection of the probate of the instrument in question is that the witness Hattie Wyman, whose name appears as the first witness to the will, had no knowledge that the paper she signed as a witness was the last will and testament of the said Charity S. Allen. And he has made a very able and elaborate argument to show that, unless the persons who sign, as witnesses, an instrument which is intended to be a will, know the fact that such is the nature of the instrument upon which they place their names as witnesses, they do not attest and subscribe as required by section 2282, Rev. St. 1878. This is a very old question, both in England and this country, and with all due respect for the learning and ability of the counsel for the contestants, we think it very clear that the great weight of authority is against the claim made by the counsel. The reason for holding that, under a statute like ours, the witnesses need not know the nature of the instrument to which they attach their names as witnesses to the signature of the person who has subscribed the same, is entirely satisfactory to us.

If the contention of the learned counsel is to prevail, then the fact that a will was duly witnessed as required by law would in all cases depend upon the memory of the persons signing as such witnesses; and the most honest will, executed in the most formal manner, would be defeated of probate if the witness should be unable to call...