Enright v. Griffith

• Decision Date: 15 May 1917
• Citation: 165 Wis. 601,163 N.W. 138
• Parties: ENRIGHT v. GRIFFITH ET AL.
• Court: Wisconsin Supreme Court

165 Wis. 601

163 N.W. 138

ENRIGHT

v.GRIFFITH ET AL.

Supreme Court of Wisconsin.

May 15, 1917.

Appeal from a judgment of the Circuit Court for Jefferson County; George Grimm, Circuit Judge. Affirmed.

Proceedings were commenced in the county court for probate of an instrument purporting to be the last will of Agnes Griffith, deceased. It was refused. The proponent, Julia Enright, sister of the deceased, appealed to the Circuit Court. The result was that the decision of the County Court was reversed and judgment entered directing probate of the will. These, in substance, among others, were found as facts: About 7:30 P. M. April 9, 1914, Agnes Griffith, aged 49 years, died at her residence in Waukesha County, Wisconsin. She was survived by her husband, Henry Griffith, four minor children, William Enright, her brother, a married man of family, and Julia Enright, an unmarried sister, the proponent. The purported will, dated April 9, 1914, about 12 o'clock noon, at the residence of the testatrix, was duly signed by her by making her mark thereto in the presence of Thomas Palmer and Lydia Hillary, who then, by her implied request, attested her signature, as witnesses, in her presence, and in the presence of each other. The instrument was, in every respect, duly executed as the last will and testament of Agnes Griffith. She was not under the influence of any person. The instrument was her free and voluntary act and expressed her wish as to the disposition of her property. She had about $350.00 in value of personal property and a city lot on Van Buren Street, Milwaukee, Wisconsin, on the south half of which there was a double house, known as 488 on said street. She inherited the property from her mother. It was worth about $5000. She was of strong will and positive character. The sister was of middle age, having no special occupation and no means of support, nor property other than personalty of the value of about $400, and a lot inherited from her mother, on which was constructed one-half of the double house aforesaid, worth about $5000. She had, in part, supported herself by keeping boarders. Her relation with the testatrix had always been very close and affectionate. She had largely cared for the testatrix and her family in sickness. She and the children of the latter were mutually affectionate. The testatrix's husband was worth about $35,000, largely accumulated during their married life. He obtained $600 from her about the time of the marriage which was never repaid. It was incorporated into his property. At the time of her decease he was in middle age, in good health, and with fair prospects of accumulating more property. When the will was made, she was suffering from appendicitis, complicated with peritonitis from which she died a few hours after the transactions. She took to her bed April 3d, 1914. On each day from this time up to the time of making the will, she was in full possession of her mental faculties. In the morning of the day of her death, she said she left easier and requested her nurse, who was alone with her, to get pencil and paper, which was done. She then dictated what she wanted written and the nurse wrote. She did not own any acre property on Van Buren Street and knew that her property was known as 488 Van Buren Street in Milwaukee. By mistake the nurse wrote 480 acres instead of 488 on Van Buren Street. About an hour after the writing occurred, at her request, a doctor, she named, was sent for to perform an operation on her. Shortly after sending for the doctor, she was visited by Father Palmer, who administered to her the last rights of the Catholic Church, of which she was a member. Then she requested all who were present, except Father Palmer, to retire and the nurse to be sent for. The husband did not at once retire and she signified to him that she desired him to do so. He complied. When there were present with her only Father Palmer, and the nurse, she requested the writing to be produced and handed to Father Palmer. That was done. It was then executed as before stated. She then told Father Palmer to take it and see that it got into the proper hands. She then expressed a wish to have her children brought up in her religion. About 1:00 P. M. thereafter she kissed them goodby. She took no further active part in affairs while preparations were being made for the contemplated operation except to ask what was being done. Some hours later she recognized her brother and sister-in-law. She expired about 7:30 P. M. thereafter.

There was evidence produced as to all the matters referred to. The will was written by Miss Hillary on a paper she had for use as a nurse. There was testimony to the effect that she wrote what Mrs. Griffith requested her to. There was no proof that the writing was read to Mrs. Griffith. It was signed in due form, her name with her mark appearing below the writing and to the right, and the names of the witnesses a little lower down and at the left, indicating that they signed last. All occurred at one transaction, Father Palmer testified that he wrote her name and then she made her mark and that she delivered the paper to him after it was fully executed. The writing was as follows:

April 9, 1914.

I will Agnes Griffith will and bequeath to Sister Julia my real estate 480 acre on Van Buren Street, also all my person things, to have and to hold without restriction.

Agnes Griffith

her X mark

Witnesses:

Thomas Palmer

Miss Lydia Hillary

The conclusion of law reached was that the county court erred in disallowing the will and, as before indicated, judgment was rendered accordingly. The minor children by their guardian ad litem, appealed.V. H. Tichenor, of Waukesha, for appellants.

Hennessey, Hennessey & O'Boyle, of Milwaukee (Vincent D. Hennessey, of Milwaukee, of counsel), for respondent.

MARSHALL, J.

[1] It is first suggested that the will is fatally defective because of the witnesses not having signed at the request of the deceased. True, there was no evidence of an express request for the signing; but that was not essential. The court found that there was an implied request and that is amply sustained by the evidence and further, as is the fact, that the testatrix assented to the signing. Either is sufficient. Will of John Meurer, 44 Wis. 392, 399, 28 Am. Rep. 591;Skinner v. American, etc., 92 Wis. 209, 213, 65 N. W. 1037; Huff v. Huff, 41 Ga. 703; Coffin v. Coffin, 23 N. Y. 9, 80 Am. Dec. 235;Gross v. Burneston, 91 Md. 383, 46 Atl. 993;Burney v. Allen, 125 N. C. 314, 34 S. E. 500, 74 Am. St. Rep. 637;Savage v. Bowen, 103 Va. 540, 49 S. E. 668;In re Allen, 25 Minn. 39; 40 Cyc. 1115, note 89.

[2] It is next insisted that the finding as to the witnesses having subscribed their names to the instrument before it was signed by the testatrix is contrary to the evidence. There is some conflict on that matter, though considering all the circumstances, we should hesitate to hold that the finding is against the clear preponderance of the evidence. It is doubtful, at least, whether such a holding would be justified by the record. The will appears on its face to have been regularly executed. While there is not a formal attestation certificate or clause, that is unnecessary since the statute does not expressly require such. It merely provides that a will, to be valid, must be “signed by the testator or by some person in his presence and by his express direction and attested and subscribed by two subscribing witnesses in the presence of each other.” Section 2282, Stats.

The attestation and subscription feature is satisfied by the witnesses signing their names to the instrument to prove that it was signed by the testator as maker. As said in Skinner v. American Bible Society et al.: “Anything further, in mere form, is not contemplated, and would be mere supererogation.”

[3] The importance of conserving the constitutional right to dispose of property by will is such that the efficiency of an attempt to exercise such right should not depend on any “doubtful or inconclusive proof” as said in In re Michael Lewis' Will, 51 Wis. 101, 113, 7 N. W. 829. The appearance, on the face, of regularity should be regarded as involving a presumption of due execution so strong as to prevail, in the absence of clear and satisfactory evidence to the contrary. That presumption stands in this case, supported by some corroborating circumstances against some conflict in the oral testimony of the subscribing witnesses.

With what has been said, we may pass the question of whether the finding objected to has sufficient support in the evidence without definitely deciding the matter, since we have concluded that the order of signing is not vital, where that of the testator and that of the witnesses occur, as in the particular instance, when...