Ball v. Bos (In re Ball's Estate)

Decision Date21 April 1913
Citation153 Wis. 27,141 N.W. 8
CourtWisconsin Supreme Court
Syllabus by the Judge.

Every person of mature years and sound mind has an inherent right to make a will, which neither the court can abridge nor the Legislature take away.

Regardless of the testamentary wish as to beneficiaries, if it be expressed lawfully, there is no right in law nor duty in equity other than to enforce it.

The testamentary is as ample as the contracting power, and courts should uphold exercise of the former as firmly as the latter, regardless of the wishes of disappointed relatives.

The charge that a will, good in form, and made by a person having testamentary capacity, is the will of another, produced by that other's undue influence, sounds in fraud.

In case of an inquiry as to whether a will, good in form, is void for undue influence, the rule applies that he who charges fraud, to prevail, must support his claim by clear and satisfactory evidence.

The rule that a trial judge's findings of fact are due to prevail, unless contrary to the clear preponderance of the evidence, has weight according to circumstances. Its ordinary efficiency is lessened where findings rest on inferences from conceded or established facts, and reduced to a minimum or displaced where the conclusions are reached by mistaken ideas of law.

A finding of fact, without due heed for the rule respecting its establishment, has little or no support in the presumption of correctness which requires a clear preponderance of evidence to displace it.

The distinction between clear and satisfactory evidence and mere preponderance of evidence is substantial, and may properly be the turning force in balancing conflicting inferences.

In an inquiry as to whether a will is the product of undue influence, the same as others sounding in fraud, the onus probandi, from first to last, is on the one charging the wrong, requiring clear and satisfactory evidence to satisfy it.

The rule that, in case of opportunity for the exercise of undue influence being clearly shown, a subject unquestionably susceptible thereto and clear indications, by direct or circumstantial evidence, of exercise thereof, the person to be benefited by the wrong is called upon to rebut the presumption against him by showing good faith, does not involve any shifting of the burden of proof.

In case of its appearing, prima facie, that preference by will was secured by undue influence, and defendant so weakens such showing that the essential evidentiary circumstances no longer rest on clear and satisfactory evidence, such showing will not warrant a recovery.

A testamentary preference secured by undue influence contemplates existence of a wrongdoer and perpetration by him of a fraud upon an unwilling or unsuspecting victim, rendered substantially powerless by “insidious approaches, seductive artifices or other species of circumvention,” disabling such other from acting of his own volition.

“Undue influence” is the antithesis of right influence. One may, in some circumstances, rightfully influence and persuade another to provide by will in his or her favor, especially in case of a wife or near relative, so long as the testator, in the end, acts upon his own judgment.

Opportunity to exert undue influence, spoken of among essentials of a prima facie circumstantial showing of the procurement of a will by undue influence, is not satisfied by the ordinary and natural seclusion and association in the domestic relations of husband and wife.

Neither the natural attentions of a wife to her invalid husband, nor her helpful efforts in caring for his business and property, nor efforts, at his request, to aid him in efficiently expressing his dying wishes as regards his property, are badges of fraud.

The natural characteristics of secrecy in making a will, either as to the fact of making or the contents of the paper, do not answer to that secrecy sometimes legitimately referred to as circumstantially bearing on the question of undue influence.

The onus probandi being on the person charging procurement of a will by undue influence, incidents in the lives of an alleged victim and wrongdoer being shown to circumstantially establish the charge, which might be regarded condemnatory or innocent according to circumstances, the latter should be taken as the true aspect in the absence of satisfactory indication to the contrary.

Setting aside that which purports to be a man's final testamentary wishes is of such serious nature that, in case of an alleged wrongdoer being so near to the testator as that of a wife, especial care should be exercised to avoid possibility of defeating the dying hope to have provided for his surviving spouse. No mere suspicious circumstances should have weight nor inference of wrong be raised from the natural incidents of the relations of husband and wife.

Appeal from Circuit Court, Oneida County; A. H. Reid, Judge.

Petition of Delia Orinda Ball for the establishment of the will of William Francis Ball, deceased, which Ida Boston and others contest. From a denial of the petition, proponent appeals. Reversed and remanded.

Winslow, C. J., and Barnes, J., dissenting.

Action involving the validity of a will.

In due proceeding in the county court of Oneida county for the establishment of an instrument proposed as the last will and testament of William Francis Ball to be such will in fact, the petition therefor was denied. An appeal from such decision was taken to the circuit court for such county, resulting in an affirmance thereof, based on findings to this effect:

1. September 24, 1911, Mr. Ball died, aged 70 years and past.

2. His wife survived, also a daughter, Ida Boston, and two sons, Roy and Charles, all being adults.

3. August 28, 1911, in his last sickness Mr. Ball made a will, good in form, giving all his property to his wife.

4. He had a livery business which he had conducted for some 20 years, was worth about $6,500, and owed about $2,000, secured on his real estate.

5. He first married Sarah Brown, who became the mother of the three children, the contestants herein, lived happily with his family until she died in 1905, and, during that time, accumulated substantially all his property.

6. He was uniformly kind to his children until he remarried; received from Roy, some 9 years theretofore, $600 in notes, and from Charles $400 in money, with the understanding that he should have an interest in the business; allowed the claims in favor of his sons to outlaw, but employed Roy in his later years to help run the business and left him in charge when he last visited the stable.

7. Soon after Sarah died, he employed Delia Orinda McKelvery as housekeeper and kept her some two years, when he sold his home and broke up housekeeping. She had been twice married, was of strong mind, about 50 years of age and acquired a strong influence over him while she was his housekeeper, he coming to rely and feel dependent upon her and resort to her house to be nursed in his sickness.

8. Mr. Ball was afflicted for 20 years with a progressive habit of indulging in intoxicants, resulting in his health being impaired and cirrhosis of the liver developing, which, complicated with stomach trouble and an open fistula, ended his life.

9. June 6, 1910, Mr. Ball married his previous housekeeper, went to live at her house some distance in the city away from his children and old friends, grew more and more estranged from the former, accepted active interest and advice of his wife in his business, ceased to consult with the children and tried to change a policy of life insurance which ran to his first wife and her heirs so as to run to his second wife. She purposely promoted his unnatural treatment of his sons by putting a two year laundry bill she had against one of them, without first demanding pay, in the hands of a lawyer with instructions to sue, causing Roy to be arrested and jailed on the charge of disorderly conduct and taking control of the business from him and putting another person in his place.

10. In general, after the second marriage, Mr. Ball was in such poor health as to weaken his mental faculties and render him more and more dependent upon his wife, with whom he lived alone, seldom communicating with his children.

11. Two days before making the will, he took to his bed in his last sickness and, thereupon, his wife increased her activity in looking after his business, secured her attorney, who was unknown to him, to draw his will and chose a friend of hers to witness it, kept the making thereof a secret, refused to allow his sons to see him alone until after the will was drawn, and had full opportunity to prejudice him against his children.

12. Mrs. Ball had opportunity, ability and disposition to unduly control the will of her husband in her own favor,--resulting in his making his will under her suggestion and expressing her desire rather than his voluntary purpose.

Upon such findings the conclusion was reached that the decision appealed from was right. Judgment was therefore ordered and rendered affirming the same with an allowance of $25 attorney's fees to the successful party, but without costs for or against the proponent.

Charles F. Smith, Jr., of Rhinelander, and John Van Hecke, of Merrill, for appellant.

Miller & Reeves, of Rhinelander, for respondents.


[1][2][3] As often, and not too often, said, the testamentary right is one of the most important of the inherent incidents of human existence. It has been so regarded since the dawn of civilization. As an eminent text writer put the matter, “It has been held sacred by all nations and under all conditions;” and, we may add, it has in no time or place or condition been more significantly upheld than during the period of development in the countries blessed with and characterized by civic growth, promoted by principles of the common law. It is not a mere...

To continue reading

Request your trial
54 cases
  • Patterson v. Jensen (In re Faulks' Will)
    • United States
    • Wisconsin Supreme Court
    • May 1, 1945
    ...190 N.W. 355,Will of Emerson, 1924, 183 Wis. 437, 198 N.W. 441;Will of Grosse, 1932, 208 Wis. 473, 243 N.W. 465. Since Ball v. Boston, 1913, 153 Wis. 27, 141 N.W. 8, it is the established rule in this state that in will cases fraud or undue influence must be established by clear, convincing......
    • United States
    • Wisconsin Supreme Court
    • July 12, 2001
    ...the evidence." 11 Wis. 2d 15, 29-30, 104 N.W.2d 138 (1960). ¶ 23. In Kuehn, Justice Hallows quoted from Will of Ball: Ball v. Boston, 153 Wis. 27, 35, 141 N.W. 8 (1913), to the effect that "in ordinary civil matters the person on whom the burden of proof rests may rely upon evidence establi......
  • Ebert. v. Ebert
    • United States
    • West Virginia Supreme Court
    • December 6, 1938
    ...105, 136 S. E. 683; Green V. Green's Exrs., 150 Va. 452, 143 S. E. 683; In re Ewart's Estate, 246 Pa. 579, 92 Atl. 708; In re Ball's Estate, 153 Wis. 27, 141 N. W. 8; Burney v. Torrey, 100 Ala. 157, 14 So. 685, 46 Am. St. Rep. 33; Cutler V. Cutler, 103 Wis. 258, 79 N. W. 240. Undue influenc......
  • Ebert v. Ebert, 8745.
    • United States
    • West Virginia Supreme Court
    • December 6, 1938
    ...105, 136 S.E. 683; Green v. Green's Ex'rs, 150 Va. 452, 143 S.E. 683; In re Ewart's Estate, 246 Pa. 579, 92 A. 708; In re Ball's Estate, 153 Wis. 27, 141 N.W. 8; Burney v. Torrey, 100 Ala. 157, 14 So. 685, 46 Am.St.Rep. 33; Cutler v. Cutler, 103 Wis. 258, 79 N.W. 240. Undue influence may be......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT