Fuller's Estate, In re

• Decision Date: 05 February 1957
• Citation: 81 N.W.2d 64,275 Wis. 1
• Parties: In re ESTATE of Vivian M. FULLER, Deceased, Leota ARCHER, Appellant and Respondent, v. Gertrude HENRY et al., Respondents and Appellants. (Two notices of appeal)
• Court: Wisconsin Supreme Court

Page 64

81 N.W.2d 64

275 Wis. 1

In re ESTATE of Vivian M. FULLER, Deceased,

Leota ARCHER, Appellant and Respondent, v. Gertrude HENRY et al., Respondents and Appellants. (Two

notices of appeal)

Supreme Court of Wisconsin.

Feb. 5, 1957.

Johns, Roraff, Pappas & Flaherty, Bosshard & Arneson, La Crosse, for appellants, defendants.

Ruediger & Joanis, Hale, Skemp, Hanson & Schnurrer, La Crosse, for respondent, plaintiff.

BROWN, Justice.

We recognize that the findings of the trial court must be affirmed unless contrary to the great weight and clear preponderance of the evidence and undue influence is not to be proved but by clear, convincing and satisfactory evidence. In re Estate of Miller, 1953, 265 Wis. 420, 425, 61 N.W.2d 813, and cases there cited. In re Will of Winnemann, 1956, 272 Wis. 643, 645, 76 N.W.2d 616. The credibility of witnesses and the weight to be given their testimony are matters for the trial court. Will of Winnemann, supra. So are the inferences to be drawn from the evidence.

Many witnesses testified that they considered Miss Fuller incompetent at times when they observed her in the hospital both before and after the execution of the will. The hospital records on the days surrounding July 5, 1955 have frequent entries that Miss Fuller was disturbed or disoriented. But, 'it is elementary that the question of competency is to be determined as of the time of the execution of the will.' In re Estate of Wegner, 1925, 185 Wis. 407, 201 N.W. 826, 828; In re Estate of Kesich, 1944, 244 Wis. 374, 383, 12 N.W.2d 688. The test of testamentary capacity has frequently been stated and was recently repeated In re Will of Klagstad, 1953, 264 Wis. 269, 271, 58 N.W.2d 636, 637:

'* * * the general rule recognizing that the test of mental competency is whether the testator had sufficient active memory to comprehend, without prompting, the condition of his property, his relations to those who might be beneficiaries, and to hold these things in mind long enough to perceive their relations to each other and to be able to form some rational judgment in relation to them * * *.'

The trial court filed a memorandum opinion quoting this test and analyzing the evidence which led him to the conclusion that at the time Miss Fuller executed her will, July 5, 1955, she had testamentary capacity. Significant extracts from that opinion, which we have checked against the record, are:

'* * * While the testimony of the nurses on duty at other times is not to be disregarded, nevertheless, more weight must necessarily be given to the testimony of those of the professional staff of the hospital that were on duty at the time of the execution of the disputed document on July 5th.

'In this regard, the Court must therefore consider the testimony of nurse Mrs. Genevieve Wrobel. It was the general conclusion of the Court from the testimony of this witness that she considered the deceased at the particular time in question competent. Her testimony was that the deceased was alert at that time. It would seem to the Court, although not mentioned in briefs, that one of the important factors was the fact that deceased had just rested prior to the arrival of Judge Ruediger and the subscribing witnesses. Shortly after 3:00 P.M. July 5th, this witness had rolled down the bed of the deceased and she had rested until shortly before the arrival of the subscribing witnesses. This rest undoubtedly contributed to the general mental competency of the deceased at this very important time. She had rested and after resting, was sitting up in bed awaiting the arrival of the necessary people that she might transact her last business. She was so mentally competent at that particular time that she knew Judge Ruediger whom she hadn't seen in many years * * *

'* * *

'It is true that there were some witnesses who visited the deceased who testified that upon such visit the deceased was incompetent. As a general proposition, however, none of these witnesses were as closely associated with the deceased as the subscribing witnesses and thus were not in a position to as accurately appraise the competency of the testatrix as were the subscribing witnesses. It is further noted that some of these were relatives and their testimony must obviously be considered in light of their interest in the outcome of this contest.

'It is, therefore, incumbent upon the Court to give considerable weight to the testimony of the subscribing witnesses in respect to mental competency of the deceased.

'The attorney who prepared the contested Exhibit #1 is an able, competent, experienced attorney. His extensive practice in probate court, his drafting and execution of fifteen hundred to two thousand wills, places his testimony in a position of being entitled to considerable weight on this question. His testimony was direct and positive to the effect that at the time the deceased executed the will in question, that she was of sound mind and memory. She was of such sound mind that she even recalled knowing the attorney whom she had not seen in many years. She was also of such sound mind that she was able to supply an apparent omission from the will which the attorney had neglected to read to her. It would seem that with an attorney of such extended experience that had such an attorney entertained any question as to the mental competency of the deceased, that he was in an excellent position to call in a couple or at least one doctor from the hospital staff where the will was executed to examine the testatrix upon the execution of such important document in order to have such evidence available at trial. The opinion of the attorney as to the competency of the testatrix obviously was so positive as to dismiss this procedure from his mind as being unnecessary. The testimony of the other two subscribing witnesses is also entitled to great weight. Both of these witnesses were old friends of the deceased and were frequently with the deceased for a period up to forty-five years. They were in an excellent position to know the deceased both during good health and compare such impressions of the deceased with their impressions of the deceased on her death bed and at the time of the execution of the contested will. They also had an opportunity, by several visits to the hospital, to become well acquainted with the condition of the deceased at that time. Both of these witnesses testified that the deceased was competent at the time of the execution of this document. It is significant that these two witnesses were not just two people who were called in for the purpose of witnessing a document but were instead two people who probably, more than any other persons in the world with the exception of Leota Archer, and the medical profession, who could appraise the condition of the deceased. Their judgment as to competency was based on the background of close companionship of many years. It is true that an attempt at impeachment of their testimony was made by one of the attorneys for the contestants, and certainly this evidence is entitled to consideration. However, the statements of the attorney were disputed and the Court is inclined to accept as the true beliefs of the subscribing witnesses, those statements made by such witnesses in the Court while...