Riordan v. O'Hagan

• Decision Date: 04 December 1888
• Citation: 40 N.W. 649,73 Wis. 78
• Parties: RIORDAN v. O'HAGAN.
• Court: Wisconsin Supreme Court

73 Wis. 78

40 N.W. 649

RIORDAN

v.O'HAGAN.

Supreme Court of Wisconsin.

December 4, 1888.

Appeal from circuit court, Rock county; JOHN R. BENNETT, Judge.Cornelius Buckley, for appellant.

J. G. Wickham, for respondent.

LYON, J.

Daniel Riordan, the respondent in this appeal, presented to the county court, for probate, an instrument in writing purporting to be the last will and testament of Peter O'Hagan, deceased, in which he devised and bequeathed all of his estate, real and personal, to his wife, Letitia O'Hagan. The instrument purports on its face to have been executed in the form required by the statute, and was attested in due form by J. A. Sherwood and P. Johnson. Probate of the instrument was opposed by the appellant, Joseph A. O'Hagan, a son of the testator by a former wife. The county court admitted the instrument to probate as such last will. The appellant, Joseph A. O'Hagan, thereupon appealed to the circuit court. After a hearing in that court, the order of the county court was affirmed. The contestant, Joseph A. O'Hagan, appeals to this court from the judgment of affirmance rendered by the circuit court.

The only question raised on this appeal going to the merits of the controversy is, did the attesting witnesses to the will subscribe the same as such in the presence of the testator, as required by statute? Rev. St. p. 650, § 2282. The will is in the handwriting of E. P. King, Esq., of Beloit, in which city the testator resided when the same was executed. It bears date September 12, 1881. There is no question but that it was signed by the testator, and by the two persons whose names appear thereon as attesting witnesses. It is understood that Mr. King died before the testator. After the signature of the testator, and before those of the attesting witnesses, is the following certificate: “The above instrument, consisting of one sheet, was, on the day of the date thereof, signed, published, and declared by the said testator to be his last will and testament, in the presence of us, who have signed our names, at his request, as witnesses, in his presence and in presence of each other.” Both the attesting witnesses were examined as witnesses on the hearing in the circuit court, and each disclaimed any recollection of attesting the instrument, yet each verified his signature thereto. The substance of the testimony of each of them is contained in that of the witness Sherwood, as follows: “I have no recollection of signing that instrument; not the least. I don't remember signing it. All I know is that it is my signature.” The theory of the defendant is that at the date of the will,--September 12, 1881,--the testator was sick, and unable to leave his house; and, because both of the attesting witnesses testified that they had never been in his house, they could not have been present when he executed the will, inasmuch as it must necessarily have been executed at his house. The testimony tending to show that the testator was seriously ill at the time is very inconclusive and unsatisfactory, depending, as it does, mainly upon the recollection of the witnesses of what transpired on a specific day six years before they were called to testify. Besides, they fail to disclose any facts or circumstances which would have a tendency to impress the precise date upon their recollections. The testimony of the appellant himself is a fair specimen of that of the other witnesses on the same subject. He had testified to having been at the testator's house, September 15, 1881, and that the testator was then very ill. When interrogated as to his means of knowing the precise date, he said: “I am able to say that it was the 15th that I was at my father's, because I was building a house at the time. I have the papers to show.” No papers were produced. The testimony tending to prove that the testator was able to go to Mr. King's office, in Beloit, on September 12th, is fully as strong and convincing as the testimony to the contrary. It is deemed unnecessary to state the testimony more fully.

In the case of Will of Jenkins, 43 Wis. 610, and Will of Meurer, 44 Wis. 392, it was held that, to authorize the probate of an instrument propounded as a will, it is not absolutely necessary that the attesting witnesses testify to all the facts essential to a valid execution of the will. In the Jenkins Case one of the attesting witnesses testified to the absence of at least one of those essential facts, yet it was held that such testimony did not necessarily defeat...