In re Valentine's Will

• Decision Date: 14 April 1896
• Parties: IN RE VALENTINE'S WILL.
• Court: Wisconsin Supreme Court

93 Wis. 45

67 N.W. 12

IN RE VALENTINE'S WILL.

Supreme Court of Wisconsin.

April 14, 1896.

Appeal from circuit court, Marquette county; Robert G. Siebecker, Judge.

Proceedings by J. N. Valentine and others to establish an alleged lost will of Jane Valentine, deceased. From the judgment allowing and admitting to probate a written instrument as the last will of the deceased, Dougal McDougal appeals. Reversed.John Barry and George E. Sutherland, for appellant.

Fowler & McNamara, for respondents.

CASSODAY, C. J.

It appears from the record that Jane Valentine died at her residence, in Buffalo, Marquette county, Wis., Monday, July 10, 1893, leaving, her surviving, no husband, child, father, or mother, but did leave, her surviving, nine next of kin and heirs at law, including her brother, Dougal McDougal, who brings this appeal. She also left about $2,500 worth of personal property, but no real estate. Her precise age is not stated in the record, but she seems to have been quite aged. Her husband died some three years before she did. It appears from the evidence that June 29, 1892, she made a will in writing, and signed it, and that the same was thereupon attested and subscribed in her presence by two competent witnesses, as required by the statute (section 2282, Rev. St.). The contents of that will appear to have been sufficiently established by the evidence. That will did not purport to give anything to any of her next of kin or heirs at law, but did purport to give $100 to Jacob H. Valentine, a nephew of her husband, $50 to a boy or young man who had lived with her and her husband, $200 to a church named, and all the rest, residue, and remainder of her property to Mary Morris, wife of William Morris, living in the same town with her, and who had lived with her and her husband, prior to his death, as an adopted daughter; and, in case of Mary's death before the death of the testatrix, then such residue and remainder was to go to Mary's little son, Henry N. Morris; and Andrew Reid, one of the trustees of the church mentioned, was named as executor therein. On the death of Mrs. Valentine no will was found, and thereupon Jacob H. Valentine, named in the will, petitioned the county court for Marquette county “to take proof of the execution and validity of such will, and to establish the same” as a will “lost or destroyed by accident or design,” as provided in the statute (section 3791, Rev. St.). Upon the hearing of that petition the county court, January 11, 1894, established, allowed, and admitted to probate, such written instrument, as the last will and testament of said deceased. From that judgment or decree the said Dougal McDougal, as such next of kin and heir at law, by leave and authority given by the county court, appealed to the circuit court. Upon the trial of said matter in the circuit court that court found, as the county court had, the due execution and contents of such will, and in addition the court found, in effect, that the will was in the possession of the deceased on the afternoon of the day previous to her death (being Sunday afternoon, July 9, 1893); that she died without destroying, canceling, or revoking the same; and that it was not, during her lifetime, canceled or destroyed by her authority, but was accidentally lost, or fraudulently destroyed or suppressed, previous to or subsequently to her death,--and thereupon affirmed the judgment of the county court establishing such will, and admitting the same to probate.From that judgment the said Dougal McDougal, as such heir at law, brings this appeal.

1. The first ruling of the trial court to which exception was taken is to the effect that the residuary legatee, Mary Morris, named in the will, was not a party to the action or proceeding. We are clearly of the opinion that such ruling was error. Not only were she and the other legatees named in the will parties to the proceedings, but the several heirs at law were also parties to the proceedings; otherwise an heir at law could not bring this appeal, as a “party aggrieved.” Section 3048, Rev. St.; Day v. Buckingham, 87 Wis. 219, 58 N. W. 254, and cases there cited. Undoubtedly, a proceeding to admit a will to probate is a proceeding in rem; but it is also, under our statute, a proceeding in personam, to the extent that when the will is duly proved and allowed in the county court as provided in the statutes, or on appeal in the circuit court, or in the supreme court, such probate and allowance is “conclusive” upon all legatees, devisees, and heirs at law, as to the due execution of the will, and that it was not obtained by fraud or undue influence. Section 2294, Rev. St.; Archer v. Meadows, 33 Wis. 166;Newman v. Waterman, 63 Wis. 616, 23 N. W. 696;Scott v. West, 63 Wis. 552, 24 N. W. 161, and 25 N. W. 18;Jones v. Roberts, 84 Wis. 465, 54 N. W. 917. In so far as the proceeding was to establish the written instrument as a will which had been “lost or destroyed by accident or design,” it was equitable in its nature; and so this court has held that even in the absence of section 3791, Rev. St., the circuit court would have had jurisdiction, under its general equity powers, to establish such lost or destroyed will. Hall v. Gilbert, 31 Wis. 691. It was there, in effect, held that in such an action the legatees and devisees were parties on the one side, and the heirs at law were necessary parties on the other side. Id. See Southworth v. Adams, 9 Biss. 521, 4 Fed. 1; s. c., 11 Biss. 256, Fed. Cas. No. 13,194. The logic of the decisions in this court pertaining to the matter is all to the effect that such legatees, devisees, and heirs at law are all parties to the proceedings; and in at least one case it is, in effect, so held. In re Estate of Fitzgerald, 57 Wis. 508, 15 N. W. 794;Wright v. Jackson, 59 Wis. 569, 18 N. W. 486;Leach v. Leach, 65 Wis. 284, 26 N. W. 754;Will of Silverthorn, 68 Wis. 378, 32 N. W. 287;Goerke v. Goerke, 80 Wis. 516, 520, 50 N. W. 345;Begole v. Hazzard, 81 Wis. 277, 51 N. W. 325. Obviously, such legatees, devisees, and heirs at law were and are parties to the proceedings.

2. Being parties, they were not disqualified by reason of their interest in the event of the action or proceeding, but were, by the statute, expressly made competent witnesses, except as otherwise provided in the statute (section 4068, Rev. St.). But as they each and all claim a share or interest in the property in controversy from and under the deceased, Mrs. Valentine, the statute expressly precluded each of them from being examined as witnesses “in respect to any transaction or communication” by him or her “personally” with the deceased, except as expressly provided in the statute. Section 4069, Sanb. & B. Ann. St., and cases cited in the notes. This sufficiently appears from cases already cited. Contrary to this rule of evidence, the residuary legatee, Mrs. Mary Morris, was not only allowed, against objection, to testify as to repeated conversations between her and Mrs. Valentine in respect to the alleged will and the disposition she had made of her property, but also as to such conversations between her and Mr. and Mrs. Valentine several years prior to the making of the will, in regard to the disposition they, respectively, proposed to make of their property. Such rulings were errors.

3. The finding of the trial court to the effect that the will was in the possession of Mrs. Valentine the day before she died was based entirely upon the testimony of William Morris, husband of the residuary legatee. His testimony was admitted against objection, and apparently on the ground, as indicated, that his wife, as such residuary legatee, was not a party to the proceedings. The admission of his testimony under such circumstances, and for such a purpose, is contrary to the well-established general rule which precludes a husband or wife from being a competent witness for or against the other in an action or proceeding to which such witness is not a party. Such exclusion is not on the ground of interest, but of public policy. Farrell v. Ledwell, 21 Wis. 182;Mountain v. Fisher, 22 Wis. 93;Butts v. Newton, 29 Wis. 632;Stewart v. Stewart, 41 Wis. 624;Blabon v. Gilchrist, 67 Wis. 38, 29 N. W. 220;Smith v. Merrill, 75 Wis. 461, 44 N. W. 759;Hoffman v. Joachim, 86 Wis. 188, 56 N. W. 636. There is no pretense that he was or could be an agent for such a purpose, and manifestly the facts do not bring the case within any exception to the general rule at common law. His testimony covers nine printed pages, and relates to numerous conversations with Mrs. Valentine,...