Armstrong v. Armstrong (In re Armstrong)

• Decision Date: 28 April 1885
• Parties: IN RE LAST WILL AND TESTAMENT OF ARMSTRONG, DECEASED. ARMSTRONG, PROPONENT OF WILL, v. ARMSTRONG, CONTESTANT OF WILL.
• Court: Wisconsin Supreme Court

63 Wis. 162

23 N.W. 407

IN RE LAST WILL AND TESTAMENT OF ARMSTRONG, DECEASED.ARMSTRONG, PROPONENT OF WILL,

v.ARMSTRONG, CONTESTANT OF WILL.

Supreme Court of Wisconsin.

Filed April 28, 1885.

Appeal from circuit court, Green Lake county.Stroud, Armstrong & Stroud and I. C. Sloan, for appellant.

Lander & Lander and E. P. Smith, for respondent.

TAYLOR, J.

This is an appeal from the judgment of the circuit court of Green Lake county, reversing the order of the county court of Dodge county, admitting to probate the will of Margaret Armstrong, deceased. The evidenceon the trial shows that Margaret Armstrong executed the will in question on the thirtieth day of September, 1882, and that at the time of the execution of said will, and at the time of her death, the deceased had no children living, and no issue of any children except the contestant, who was her grandson,--a son of her deceased son,--then about 15 years old, living with his mother in Detroit, Michigan. She was again married and living with her second husband. This grandson was also the grandson of the husband of the deceased, to whom by her will she gave her estate. The deceased and the proponent of the will were husband and wife, having lived together as such for 30 or 40 years, neither having been married to any other person, and both were over 70 years old at the time the will was executed; and, so far as there is any evidence on the subject, it does not appear that their married life had been otherwise than pleasant and happy. The deceased died from the effects of a cancer with which she had been afflicted for several years. She left an estate valued between forty and forty-five thousand dollars, about half of which was real estate, situate in California. One-half of the California estate would have gone to her husband by the laws of that state had she died intestate. The following is a copy of the will of the deceased proposed for probate:

“I, Margaret Armstrong, of the village of Fox Lake, in the county of Dodge, and state of Wisconsin, being of sound mind and memory, and mindful of the uncertainty of human life, do make, publish, and declare this my last will and testament in manner following: (1) I give, devise, and bequeath to my husband, John Armstrong, my estate, both real and personal, of every name and nature whatsoever, and I desire my said husband to see that our grandson, Frederick James Armstrong, has a good collegiate education, and to furnish means for that purpose. (2) I hereby nominate and appoint Cassius B. Hawes the executor of this my last will and testament.

In witness whereof, I have hereunto set my hand and seal this thirtieth day of September, 1882.

MARGARET her X mark. ARMSTRONG. [Seal.]

Attest:

C. B. HAWES.

C. H. EGGLESTON.

The above instrument, consisting of one sheet, was signed, published, and declared by the said testator to be her last will and testament, in the presence of us, who have signed our names at her request, as witnesses, in her presence and in the presence of each other.

C. B. HAWES, Fox Lake, Wisconsin.

C. H. EGGLESTON, Fox Lake, Wisconsin.”

The will was admitted to probate by the Dodge county court, without contest, and an appeal was taken to the circuit court of Dodge county. The action was afterwards removed to Green Lake county, and in that court the case was tried by the court without a jury. The only witnesses sworn on the trial of the case in the circuit court were the two subscribing witnesses to the will and Mr. Banta, who drew the will and was present when the same was executed by the testatrix.

The substance of the testimony is as follows: Mr. Banta testified that “in the forenoon of the day on which the will was executed, the husband of the deceased called on me and wanted me to come down to his house, and stated that his wife wanted me to write her will. I told him I was very busy, and if he knew what it was to be I would write the main portion of it before I went down, at the office. He told me what his wife desired the will to be, and I wrote it in my office. He came again in the afternoon. I had then drawn it up, and I went down with him to the house, and went in with him. He then said he would go and get witnesses. I stayed until the witnesses came. Then Armstrong went up stairs where his wife was, and in a short time came down, and said his wife was ready, and we all went up together; and, after having a short conversation with Mrs. Armstrong, she being on the bed and propped up with pillows, I read the will over to her, and called her particular attention to the clause in the will regarding the education of her grandson, and asked her if that was what she wanted; and I understood her to say it was just as she wanted it, or ‘that is just as I want it.’ After reading the will to her, I asked her if it was just as she wanted her will. When reading the will to her, there was a blank in it for the name of an executor, and I stopped there, and asked her who she would have as executor. She looked towards her husband, and he suggested the name of Mr. Hawes. I asked her if I should put his name in, and she bowed her head in assent, and I put the name in. She took hold of the pen as if to write her name, in the first instance. I thought her hand trembled too much, and I wrote her name first, and then she took hold of the top of the pen and I made her mark. I then asked her if she wished Mr. Hawes and Mr. Eggleston, who were present, to act as witnesses to her last will, and she assented to it either by word or nodding, I could not say which, and they signed the will as witnesses in her presence.”

The witness to the will, Eggleston, testified that the will was plainly and distinctly read over by Mr. Banta in the presence and hearing of the testatrix, and, after reading it, “he asked her if that was her will, and if she made it voluntarily; if it was made out as she wished it; and she nodded assent, and said it was, in a feeble tone. Banta then wrote her name, and she made her mark, and I signed it as a witness in her presence.” Hawes testified to substantially the same thing. All the witnesses testify that she was of sound mind, but very feeble physically. After the will was executed, Mr. Banta carried it away, and kept it in his possession until after her death. He thinks he took it at the suggestion of her husband.

Upon this proof in the circuit court on the part of the proponent, no evidence being offered on the part of the contestant, the learned circuit judge made the following finding: “ First, I find as a fact in this case that Margaret Armstrong, the wife of John A. Armstrong, died at the village of Fox Lake, Dodge county, on the fourth day of October, 1882, leaving real estate and personal property owned by her, as stated in the petition for probate in said matter; second, I find that the instrument purporting to be the will of said Margaret Armstrong, attached to the petition of probate herein, was not the will of the said Margaret Armstrong, but was drawn in her absence by one Arie Banta, by the suggestion and dictation of John Armstrong, the principal legatee named in said will; third, I find that said instrument was not the will of the said Margaret Armstrong, nor executed or signed by her instruction or direction. As a conclusion of law I find that the said instrument was not duly or legally admitted to probate by the said county court of Dodge county; and, secondly, that said probate should be vacated and set aside, and probate of said instrument denied. Let judgment be entered accordingly, with costs in favor of the contestant to be taxed in this court, and paid out of the estate of said Margaret Armstrong.” Judgment was entered accordingly, and the proponent appeals to this court.

It will be seen by the findings made by the learned circuit judge that there was no question made as to the competency of Mrs. Armstrong to make a will at the time the one in question was made. That seems to have been conceded by all parties, including the learned judge, nor do we think that he intended to find as an absolute fact that...