Loughney v. Loughney

• Decision Date: 23 February 1894
• Citation: 87 Wis. 92,58 N.W. 250
• Parties: LOUGHNEY ET AL. v. LOUGHNEY ET AL.
• Court: Wisconsin Supreme Court

87 Wis. 92

58 N.W. 250

LOUGHNEY ET AL.

v.LOUGHNEY ET AL.

Supreme Court of Wisconsin.

Feb. 23, 1894.

Appeal from circuit court, Waukesha county; A. Scott Sloan, Judge.

Petition by James Smith for the probate of the will of John Loughney, deceased, to which Marietta Loughney and others appeared and objected. From a judgment admitting such will to probate, contestants appeal. Affirmed.

The other facts fully appear in the following statement by CASSODAY, J.:

It appears from the record: That December 1, 1888, the testator, John Loughney, made a will, drawn by James Smith, and the attesting clause signed by him and W. F. Malone, M. D., as attesting witnesses, which will provided, in effect, that, after the payment of his just debts, funeral expenses, and costs of administration, he thereby devised and bequeathed to his brother James, residing in Waukesha, or to his heirs, the sum of $1,500; to the children of his brother Matthew, or to the survivor of them, the sum of $1,500, share and share alike; to the children of his brother Anthony, or to the survivor of them, the sum of $1,500, share and share alike; and all the rest of his estate he thereby devised and bequeathed to the children of his brother Anthony, share and share alike. That he therein nominated and appointed James Smith as executor of said will and testament, with such powers as are allowed by law, and therein directed him to see to his burial and all necessary affairs connected therewith, at such expense as he might deem prudent, and that he might pay, in addition to his funeral expenses, a sum not exceeding $50 for such religious purposes and uses as he might deem best for the testator's spiritual welfare. That about 6 or 7 o'clock on the evening of March 17, 1892, the said John Loughney made his last will and testament, drawn by the said James Smith, who wrote at the bottom thereof the words, “John his mark Loughney, [Seal,]” with an attesting clause signed by said Smith and Charles Deiner, in the words and figures following, to wit: “On this 17th day of March, A. D. 1892, the above testator, John Loughney, signed, sealed, published, and declared the foregoing instrument as his last will and testament in our presence, and we, at his request, and in his presence and in the presence of each other, signed our names as subscribing witnesses.” That said will provided, in effect, that, after the payment of the just debts, funeral expenses, and costs of administration of said testator, he thereby willed, devised, and bequeathed to the children of his brother James, residing in Waukesha, the sum of $1,000, share and share alike; to the children of his brother Anthony, residing in the town of Muskego, Waukesha county, the sum of $1,000, share and share alike; to the children of his brother Matthew, residing in the town of New Berlin, in said county, all of the remainder of his estate, share and share alike. That he therein nominated and appointed said James Smith, the executor thereof, as his last will. That about 4 o'clock on the morning of March 18, 1892, the said John Loughney died. That May 17, 1892, the said James Smith presented to the county court his verified petition, wherein he represented and stated, in effect, that said John Loughney died March 18, 1892; that he left personal estate amounting to about the value of $3,000, but no real estate; that he left, him surviving, neither widow nor issue, nor father nor mother, but the brothers and sisters mentioned, all of whom were of full age, as his next of kin and heirs at law; and said petition contains the following clauses: “Your petitioner further shows that deceased left a will duly made and executed, as petitioner is informed and believes, which is herewith presented to the court, and that James Smith, the petitioner, is named executor therein; wherefore your petitioner prays that said will may be proved and allowed as the last will and testament of said deceased, and letters testamentary to him be issued thereon according to law.” That June 14, 1892, after hearing the proofs of the respective parties, the said county court found as matters of fact, in effect, that March 17, 1892, the said John Loughney was of an unsound mind and memory, and mentally incompetent to execute the instrument offered for probate, purporting to be the last will and testament of said deceased; that said instrument was signed, and purported to have been executed, by the said John Loughney, deceased, March 17, 1892; that said instrument was not the last will and testament of said deceased, he being at the time incompetent to execute said instrument according to law,--and the same was accordingly disallowed, and probate thereof refused. From that decree the case was thereupon taken, by appeal, to the circuit court for Waukesha county, where the same was tried by the court and a jury. That at the close of such trial the court submitted to the jury this question: “Was John Loughney, on the 17th day of March, 1892, of sound, disposing mind and memory?” which the jury answered, “Yes.” The contestants thereupon moved the court to disregard said verdict of the jury, and to deny the probate of said will, but the court denied each and every part of such motion so made by said contestants. That December 10, 1892, the said court entered judgment therein, wherein it was recited, in effect, that the questions were whether said deceased was of sound mind and disposing memory at the time of the execution of said last will and testament and whether said deceased was under undue influence at said time; and, a trial thereof having been duly had with a jury, and both of said issues or questions having been found in the affirmative by said jury, which said findings of said jury were thereby made the findings of the court in said matter, it was therein determined, adjudged, decreed, and ordered, in effect, that said order of the county court be, and the same was thereby, reversed, and that the said last will and testament be duly admitted to probate, with certain directions therein as to costs; and it was therein further ordered that the cause be, and the same was thereby, remitted to said county court for further proceedings according to law, and for the due administration and settlement of the estate of said deceased. From such judgment, the contestants bring this appeal.D. J. Hemlock and Ryan & Merton, for appellants.

D. H. Sumner and Carney, Clasen & Walsh, for respondents.

CASSODAY, J., (after stating the facts.)

John Loughney died at the age of 77. He left no father or mother or widow or children, and was never married. His next of kin consisted of three brothers named in the will, and two married sisters,--one residing in Chicago, and the other in Milwaukee. For about 25 years prior to his death he had made his home at his brother Matthew's, except that he had made his home with his brother Anthony from some time in November, 1888, to about March 1, 1892, and except that prior to November, 1888, he had from time to time, for days or weeks, and sometimes for months, been absent from Matthew's, stopping with...