Luling v. Lewis (In re Lewis)

• Decision Date: 11 January 1881
• Citation: 51 Wis. 101,7 N.W. 829
• Parties: IN RE PROBATE OF THE LAST WILL OF LEWIS, DECEASED, LULING, ADM'R, ETC., v. LEWIS.
• Court: Wisconsin Supreme Court

51 Wis. 101

7 N.W. 829

IN RE PROBATE OF THE LAST WILL OF LEWIS, DECEASED, LULING, ADM'R, ETC.,

v.LEWIS.

Supreme Court of Wisconsin.

Filed January 11, 1881.

Appeal from circuit court, Manitowoc county.

On the fourteenth day of March, 1879, in the county of Manitowoc, Michael Lewis died, leaving an instrument, executed by him two days before his death, purporting to be his last will and testament. The instrument and the attestation thereof are as follows:

“I, Michael Lewis, of Lockport, state of New York, being of sound mind and memory, do hereby make, publish, and declare to be my last will and testament, thereby revoking and making void all former wills by me at any time made heretofore. First, I order and direct may executors, as soon as practicable after my decease, to pay off and discharge all the debts, dues, and liabilities that may exist against me at the time of my decease; second, I will and bequeath to my brother, John Lewis, Ransomville, Niagara county, New York state, one dollar, ($1;) third, I will and bequeath to my second cousin, Dennis Lewis, Miltown Castle, county Cork, Ireland, whatever property or moneys I may be possessed of at the time of my death.

I hereby nominate and appoint as my executors, James Peppard, Meeme, Manitowoc county, Wisconsin, and Patrick Burnes, Meeme, Manitowoc county, Wisconsin.

In witness thereof I have hereunto subscribed my name,

MICHAEL LEWIS.

This twelfth day of March, 1879, A. D.

The above and foregoing instrument was at the date thereof signed, sealed, and published, and declared by the said Michael Lewis for his last will and testament, in presence of us, who at his request, and in his presence, and in presence of each other, have subscribed our names as witnesses.

JAMES PEPPARD,

PATRICK BURNES.”

The instrument was offered for probate to the county court by the attesting witness Peppard, and probate thereof was contested by John Lewis, the brother, and probably the only heir at law of the deceased. The county court admitted the instrument to probate as the last will and testament of the deceased. Both of the persons named therein as executors having declined to act as such, the court appointed Charles Luling, administrator, with the will annexed, of the estate of the deceased. The contestant, John Lewis, thereupon appealed to the circuit court from the order of the county court admitting the instrument to probate and establishing it as a valid will. A hearing of the matter was had in the circuit court, which resulted in an order or judgment reversing the decision of the county court, and directing that court to refuse probate of the instrument.

The findings of fact and conclusions of law of the circuit court are as follows:

“ First. That the instrument propounded as the last will and testament of said deceased, particularly described in the order appealed from, was signed and attested by the witnesses Patrick Burnes and James Peppard, the subscribing witnesses thereto, prior to the signing of the same by the testator, Michael Lewis. Second. That said witnesses signed said paper, propounded as said will, in the presence of the testator, and the witnesses and the testator remained together from the time of signing said paper by said witnesses until after the same was signed by the testator. Third. That, at the time of the attesting and subscribing of said paper by said witnesses, the said testator was not conscious as to be able to understand and comprehend the acts of said witnesses, and that they were attesting and subscribing his will.

And I find as conclusions of law: That the said paper propounded as such last will and testament was not attested and subscribed by Patrick Burnes and James Peppard as subscribing witnesses, as required by law. Second. That said paper, propounded as such last will and testament, was not attested and subscribed by any witnesses in the conscious presence of Michael Lewis, the alleged testator.”

The testimony on the hearing is sufficiently stated in the opinion. This appeal is by the administrator from the order or judgment of the circuit court.

Nast & Schmitz, for appellant.

H. G. & W. J. Turner and Vilas & Bryant, for respondent.

LYON, J.

The judgment of the circuit court rests upon two propositions of fact found by the court. These are-- First, that the witnesses to the instrument propounded as the last will of Michael Lewis affixed their signatures thereto before it was signed by Lewis; and, second, that when the instrument was so signed by the witnesses, the alleged testator was unable to understand and comprehend what they were doing; that is to say, (as we understand the finding,) that he had not at that time sound disposing mind and memory.

1. The question of testamentary capacity will first be considered, and for that purpose we shall consider the findings of the circuit court as equivalent to a finding that the deceased had not testamentary capacity when he executed the instrument in qnestion,

The test of testamentary capacity, as stated by Judge Davies in Delafield v. Parish, 25 N. Y. 9, has been approved by this court in Holden v. Meadows, 31 Wis. 284;Burnham v. Mitchell, 34 Wis. 117;In re Will of Susan Jenkins, 43 Wis. 610;Ir re Will of Blakely, 48 Wis. 294. See, also, In re Chafin's Will, 32 Wis. 558. Judge Davies says: “It it essential that the testator has sufficient capacity to comprehend perfectly the condition of his property, his relations to the persons who were or should or might have been the objects of his bounty, and the scope and bearing of the provisions of his will. He must, in the language of the cases, have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and be able to form some rational judgment in relation to them.” This is the test by which the question of the capacity of the alleged testator to make a valid will must be determined. We come now to consider the testimony.

It appears that Michael Lewis was a bachelor, and was probably about 60 years of age when he died. He was born in Ireland, but had been in this country more than 20 years. About 20 years ago he came to Wisconsin from the state of New York, where his brother, the contestant, resided and still resides, and purchased 40 acres of land in Manitowoc county. He made some improvements upon this land and owned it at the time of his death. He traveled about the country considerably, stopping in Wisconsin but a small part of the time. He was a close, prudent man, not liberal with his money, and at the time of his death had, besides his land, between $2,000 and $3,000 in notes against various parties. He was a laboring man, with but little education, but possessed a fair degree of intelligence for one of his class.

Early in January, 1879, after an absence of several years, he returned to Manitowoc county, for the avowed purpose of selling his land. He also expressed an intention to return to his native country. From the time he so returned until about two weeks before he died, he lodged at the house of one Patrick Burnes. He then went to the hotel of one Michael Herr, a few miles distant, where he remained until he died. When he came to Burnes' he was suffering from a severe cold, and his health remained impaired to the time of his death.

During the afternoon of March 11th, while in conversation with some person relative to a sale of his land, he was suddenly seized with a fit and became unconscious. His malady was probably epilepsy. His consciousness soon returned, however, and in the evening Burnes, who had been sent for, conversed with him about making a will and sending for a priest. The deceased consented that a priest be sent for the next morning, and (as Burnes testifies) expressed an intention to devise his land to Burnes. The next morning Burnes brought to him the Rev. Father Butler, a priest of his church. The deceased was about the house and was apparently suffering from some injury to his mouth or tongue, received during his fit of the day before. Father Butler administered to him the rites of the church in the parlor of Herr's hotel, and the deceased then went to the dining-room and drank a cup of tea. He returned to the parlor and the instrument in question was drawn up and signed. The circumstances of those transactions and the mental condition of the deceased are so well stated by Mr. Butler that we can do no better than to quote somewhat at length from his testimony. He states that soon after he performed his priestly functions deceased retired to the next room for breakfast, and afterwards returned to the parlor.

The witness then proceeds as follows: “On his return I spoke to him about the advisability of settling his temporal affairs. I first ascertained about the amount of property he was possessed of, and, after finding out the amount, I told him it would be desirable to make his will, and, in the absence of a more competent person, that I would draw it up for him. The only item of any importance in the will about his temporal affairs was in regard to the amount of moneys and property, of which he informed me, with the exception of some small amounts. He showed me his notes: one for $1,800,--as near as I can think, that was the note,--and another note for a smaller amount, on some party in New York, and farm that he wished to dispose of--about 40 acres. Then I wished to know how he wished to dispose of his property. He said that he wished all of his property, and all that would be found, all that he was possessed of, to go to Dennis Lewis, of Milton, Charleville, county Cork, Ireland. He told me that Dennis Lewis was a second cousin of his. I asked him if he had any relatives in America, and he informed me that he had a brother, John Lewis, near New York. I asked him what was the reason he passed him by in...