In re Walter

• Decision Date: 01 December 1885
• Citation: 64 Wis. 487,25 N.W. 538
• Parties: IN RE WILL OF WALTER, DECEASED.
• Court: Wisconsin Supreme Court

64 Wis. 487

25 N.W. 538

IN RE WILL OF WALTER, DECEASED.

Supreme Court of Wisconsin.

Filed December 1, 1885.

Appeal from circuit court, Sheboygan county.

An instrument in writing purporting to be the last will and testament of Minna Walter, late of the county of Sheboygan, deceased, was presented for probate to the county court of that county by George V. Whiffen, the executor therein named, and was admitted to probate by that court. The instrument is written in the English language. At the time of her death the estate of the testatrix consisted of her wearing apparel, some bedding, and about $1,000 in choses in action. It does not appear that she had any other property at her death. In her will she bequeathed her wearing apparel to Sarah Bolt, her neighbor, and the residue of her property to one Herman Millert, who, when the will was executed, was about 18 years of age, and with whom the testatrix lived. Neither of the legatees were relatives of the testatrix. She left surviving her three brothers residing in Wisconsin, and sisters and descendants of sisters residing in Germany. These were her nearest of kin. The brothers of the testatrix, Frederick, Martin, and Christian Schultz, appealed to the circuit court from the order of the county court admitting such instrument to probate as the last will and testament of their deceased sister. The issue devisavit vel non was tried by the court, and resulted in the following findings of facts:

“(1) That said Minna Walter died on the sixth day of February, 1884, at the town of Sheboygan Falls, in Sheboygan county, and an inhabitant of said county. (2) That the instrument propounded as the will of said deceased was, on this twenty-third day of November, 1881, signed by said Minna Walter by affixing her mark thereto in the presence of three witnesses, who subscribed the same, and her name was therein signed by Francis Williams in her presence and by her express direction. (3) That said will was written in the English language at the request and according to the directions of said Minna Walter, and she was a German and did not understand the English language; but said Minna Walter fully stated to Francis Williams, who draughted said instrument, through an interpreter who understood both languages, the objects and bequests therein written; and after said instrument was written it was read over to her, and explained in German by said interpreter; and said instrument fully expressed her purposes as there declared. (4) That said Minna Walter was at all of said times of sound mind, memory, and understanding, and of lawful age and under no constraint. (5) That said instrument so propounded for probate was by said Minna Walter then and there, in the presence of three subscribing witnesses, declared as her will; and said witnesses, at her request, and in her presence and the presence of each other, subscribed the said instrument under the attestation clause as subscribing witnesses, and said witnesses were competent thereto.”

From the facts thus found the court determined that the instrument in question is the last will and testament of the deceased, and that the same was duly and legally executed. Judgment was thereupon entered affirming the order of the county court, so admitting the instrument to probate. From that judgment the same three brothers of the testatrix have appealed to this court.Wm. H. Seaman, for respondent, George V. Whiffen.

Conrad Krez, for appellants, Frederick Schultz and others.

LYON, J.

The learned counsel for the appellants challenges the accuracy of each and every finding of fact except the first, which states the residence of the testatrix and the date of her death, and that portion of the third which finds she was a German and did not understand the English language. He argues with much ingenuity that the testimony fails to prove any of the propositions of fact thus challenged. After an attentive perusal of the testimony we find ourselves unable to agree with counsel. We think that every fact essential to the validity of the will was established by a fair preponderance of the testimony; or, at least, that there was no such clear preponderance of testimony against any material finding of fact as will authorize this court to set it aside. We do not deem it necessary, in this opinion, to set out the testimony or discuss it at length. The statement of our conclusions therefrom must suffice. Aside from the finding that the testatrix did not understand the language in which her alleged will was written, it cannot be doubted...