In re Carroll

• Decision Date: 30 November 1880
• Parties: IN RE WILL OF CARROLL.
• Court: Wisconsin Supreme Court

50 Wis. 437

7 N.W. 434

IN RE WILL OF CARROLL.

Supreme Court of Wisconsin.

Filed November 30, 1880.

Appeal from circuit court, Waukesha county.

D. H. Sumner and T. C. Martin, for respondent.

A. R. R. Butler and Dey & Friend, for appellant.

ORTON, J.

The original will need not be returned to the circuit court on the appeal. The statute provides only for “a certified copy of the record and proceedings.” Rev. St. § 4033. It might be proper for the county court to transmit to the circuit court, as a part of the return, the original will, when objections to the validity are predicated upon the manner of its execution, and the inspection of the original is necessary. In re Wilson, 8 Wis. 172. But this was not such a case. It appears from the record returned to this court that all of the issues, upon which the contest of the probate was tried and determined in the county court, were, by the order of the circuit court, submitted to a jury, but upon the trial the court said to the parties: “You may confine your testimony to the questions of soundness of mind and undue influence. The others will be for the court.” This was a substantial modification of the order of submission, if not a revocation of it, and a new order informally made.

When the testimony had all been given the counsel of the proponent suggested to the court that there was no testimony whatever to show that the testator was of unsound mind, or made his will under undue influence, to be submitted to the jury, and the circuit court so held, and ruled that the whole question be taken from the jury, and thereupon found, as a question of law upon the findings of fact, that the will was entitled to probate, and the order of the county court to that effect was affirmed.

This disposition of the matter by the court was tantamount to a formal revocation of all orders of submission of any of the issues to a jury, and was clearly within the power and discretion of the court. Submitting special issues to a jury in such a case “is strictly analogous to the course pursued in courts of chancery when a feigned issue is awarded,” and “is subject to the discretion of the court. The court may, if it sees fit, determine all questions of fact, as well as of law, without the intervention of a jury,” and the verdict, when taken, is not conclusive and binding upon the judgment of the court, and is merely advisory, and may be entirely disregarded by the court in making its own findings of the facts, if the court, in its discretion, deems best to do so. Rev. St. §§ 2843, 2844. The statute authorizing such a submission, the analogous practice of courts of chancery, and the decision of this court in In re Jackson, 26 Wis. 104, fully confirm this view of the question. We find no error, therefore, in the course taken by the circuit court in ruling that there was no evidence to go to the jury upon the issues, and that the contestant had utterly failed in her proofs, and in discharging the jury from the case.

The remaining questions are those of fact: was the will duly and properly executed, and freely and voluntarily, and without undue influence? The evidencetending to prove the negative of these questions is very slight, if there was any at all; and, on the other hand, the evidence tending to establish the affirmative is clear, positive, and satisfactory. Thomas C. Martin, who drew the will and was one of the witnesses to its...