Hawkinson v. Oatway

• Decision Date: 24 May 1910
• Citation: 143 Wis. 136,126 N.W. 683
• Parties: HAWKINSON ET AL. v. OATWAY.
• Court: Wisconsin Supreme Court

143 Wis. 136

126 N.W. 683

HAWKINSON ET AL.

v.OATWAY.

Supreme Court of Wisconsin.

May 24, 1910.

Appeal from Circuit Court, La Fayette County; Geo. Clementson, Judge.

Proceedings by Annie Oatway for the probate of the will of Christian Hawkinson, deceased. From a judgment of the circuit court affirming an order of the county court admitting the will to probate, Hawkin C. Hawkinson and others, heirs of the deceased, appeal. Affirmed.

Appeal from probate of alleged will of Christian Hawkinson, dated September 5, 1896, to which his name appears in the handwriting of the scrivener, Michael Doyle, who is also the first subscribing witness. The will bears a full attestation clause certifying, inter alia, the signing by Christian Hawkinson. His name as subscribed to the will is interrupted by a cross and the words “his mark.” There is no bill of exceptions, and the court made certain findings of fact, which in the main are mere recitation of the evidence. There is no finding of fact as to whether deceased was competent, as to whether undue influence was exerted upon him, as to whether he knew the contents of the instrument, nor as to whether he in fact signed the same by making his mark, or otherwise. It is found, however, that he died May 6, 1907; that his widow survived him about six months; that immediately after his death she made the usual petition for letters of administration, alleging intestacy; that on July 2, 1907, she, together with one of the daughters, petitioned for the probate of this instrument and filed it in county court; that Hawkinson was 81 years old at the time of his death, a native of Norway, came to this country before the Civil War, could read Norwegian, but could not write it, and could neither read nor write English, was a prosperous farmer and of average intelligence; that the subscribing witnessess both died before testator; that their signatures are authentic; and that the whole document, other than the signature of the other subscribing witness, is in the handwriting of Michael Doyle, the first subscribing witness, who was a man of good standing, resided in the same village with the testator for many years before the date of the will, and was or had been a justice of the peace, and drew conveyances and wills. As conclusion of law it is declared that the instrument is the last will and testament of Christian Hawkinson. From judgment affirming the order of the county court admitting the will to probate, certain of the heirs at law of the deceased appeal.Orton & Osborn and J. H. Clary, for appellants.

Carey & McDaniel, for respondent.

DODGE, J. (after stating the facts as above).

The judgment is prima facie erroneous because not supported by the findings. Before a will can be admitted to probate, and before there can properly be any conclusion of law that an instrument “is the last will and testament” of any one, it is essential that the court must be convinced that the testator signed it in the presence of witnesses, and that they attested with the formalities prescribed by law. The trial court is required by statute to make written decision declaring his finding on this subject. Young v. Miner, 141 Wis. 501, 124 N. W. 660. Why the trial court should have refrained from performing this duty, or counsel entering the judgment should not have at least requested a finding on this vital question, essential to the record validity of their judgment, is not apparent. Nevertheless, however erroneous the procedure, we may refrain from reversing a judgment based thereon if it is clear that justice has been done. Brown v. Griswold, 109 Wis. 275, 85 N. W. 363.

The concrete question is whether, upon proof of the authenticity of the signatures of deceased or necessarily absent attesting witnesses, there is a legitimate inference or presumption of fact that those acts which they purport to attest did occur. Those acts include the signing or acknowledgment by the testator in the presence of the witnesses, his declaration of his purpose, his request to the witnesses to attest, and their signing for that purpose in his presence and in presence of each other. It is undeniable that an affirmative answer to this question in its broadest scope has been repeatedly declared in words at least, by this court. Meurer's Will, 44 Wis. 392, 399, 28 Am. Rep. 591;Lewis' Will, In re, 51 Wis. 101, 113, 7 N. W. 829;Allen v. Griffin, 69 Wis. 529, 536, 35 N. W. 21; O'Hagan's Will, In re, 73 Wis. 78, 82, 40 N. W. 649, 9 Am. St. Rep. 763;Gillmor's Will, In re, 117 Wis. 302, 94 N. W. 32;Hanley v. Kraftczyk, 119 Wis. 352, 361, 96 N. W. 820;Arneson's Will, In re, 128 Wis. 112, 116, 107 N. W. 21. However, it is also true, as appellant urges, that in none of those cases was the effect of such evidence to prove the fact of signing by the testator necessarily involved, because in each of them the fact was either undisputed or otherwise established. As a result the conclusiveness of such utterances is perhaps open to debate; but when the court of last resort has persistently declared approval of a rule of law, it should not lightly be ignored, especially when, in presence of conflicting decisions in other jurisdictions, such declarations amount to adoption of the views of those courts approving the rule. In the light of what has been said, are we justified in departing from the rule and policy of the past?

Appellant contends that our cases overlook the fact that in case of wills their validity and existence depend on two facts, namely, execution by the testator and attestation with certain formalities by witnesses. He insists that proof of the authenticity of the witnesses' signatures justifies no inference further than that they wrote them with the proper formalities. In other words, that they merely attested. To this limitation are cited numerous very direct decisions by the New York courts. Such cases, however, are all predicated on statutes of that state to the effect that if subscribing witnesses are dead the will may be established on proof of handwriting of the testator and of the witnesses, and under such circumstances as would be sufficient to prove the will on the trial of an action. This is held to require, in the conjunctive, proof of authenticity of both the testator's and the witnesses' signatures, and thus to limit the inference or presumption to the regularity of other acts. Jackson ex dem. Hunt v. Luquere, 5 Cow. (N. Y.) 221;Jackson v. Vickory, 1 Wend. (N. Y.) 406, 19 Am. Dec. 522;Jackson v. Le Grange, 19 Johns. (N. Y.) 386, 10 Am. Dec. 237;Peck v. Cary, 27 N. Y. 9, 84 Am. Dec. 220; Burbank's Will, In re, 104 App. Div. 312, 93 N. Y. Supp. 866, affirmed 185 N. Y. 559, 77 N. E. 1183. The New York cases seem to have been followed, without noticing the statute, in Claflin's Will, In re, 73 Vt. 129, 50 Atl. 815, 87 Am. St. Rep. 693, where, however, there was no decision that the testator's signature could not be presumed from the attestation. Certain other cases cited by appellant declare a presumption in favor of due execution to arise upon proof of authenticity of signatures of testator and witnesses, but do not expressly negative such presumption from witnesses' signatures alone. Gould v. Chic. Sem., 189 Ill. 282, 59 N. E. 536;More v. More, 211 Ill. 268, 71 N. E. 988;Mead v. Trustees, 229 Ill. 526, 82 N. E. 371, 14 L. R. A. (N. S.) 255. In one case not cited is declared necessity of proof of a maker's signature in addition. It seems to be merely a ruling by a justice on a trial, and not a decision on review or after deliberate consideration. Collins v. Nicols, 1 Har. & J. (Md.) 399. The decisions in New York are, by reason of their statute, of little or no weight in Wisconsin, where we have no statute to...