Skrinsrud v. Schwenn (In re Skrinsrud's Will)

• Decision Date: 21 May 1914
• Docket Number: No. 129.,129.
• Citation: 158 Wis. 142,147 N.W. 370
• Parties: IN RE SKRINSRUD'S WILL. SKRINSRUD v. SCHWENN ET AL.
• Court: Wisconsin Supreme Court

158 Wis. 142

147 N.W. 370

IN RE SKRINSRUD'S WILL.

SKRINSRUD

v.SCHWENN ET AL.

No. 129.

Supreme Court of Wisconsin.

May 21, 1914.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Application by Ole Skrinsrud for the probate of the will of Ole O. Skrinsrud, deceased. From a judgment in favor of the contestants, Susan Schwenn and others denying the probate, proponent appeals. Reversed and remanded, with directions.

Ole O. Skrinsrud died January 31, 1913, leaving a paper purporting to be his last will and testament, which was admitted to probate in the county court on April 10, 1913. The will provided that one half of the estate should go to the widow of the deceased and the other half to his son Ole Skrinsrud, with a provision that the son pay to Susan Schwenn, a daughter of the testator, $100. The respondents, who are daughters of the deceased, objected to the admission of the will to probate on the ground that the testator was not competent to make a will at the time in question; that the will was not executed according to law; that the testator was unduly influenced by his son; that the daughters of the testator were left out of the will by mistake and not by design; that the testator was unable to read English and did not know the contents of the paper; and that it was not read over to him and translated from English to Norwegian. From an order of the county court establishing the instrument in question as the last will and testament of Ole O. Skrinsrud, deceased, the contestants appealed to the circuit court. The questions of fact were submitted to the jury on a special verdict, and by their answers thereto the jury found that the testator was mentally incompetent to execute a will; that he was induced by undue influence on the part of his son Ole Skrinsrud to execute the instrument; and that the failure of the testator to provide for his daughters was because of mistake or accident. The circuit court adopted the findings of the jury on the question of testamentary capacity and undue influence. Judgment was entered reversing and setting aside the order of the county court, and, from the judgment of the circuit court, proponent appeals.Edward J. Reynolds and Henry T. Sheldon, both of Madison, for appellant.

F. K. Shuttleworth, of Madison, for respondents.

BARNES, J. (after stating the facts as above).

We are unable to find any testimony in the record which supports the finding of mental incompetency. Some expressions of opinion were given, but no fact at all persuasive was testified to which would indicate that the mind of the testator was not in a sufficiently sound condition to enable him to make a will. The evidence tending to show testamentary capacity was quite strong and convincing.

[1] The case is somewhat closer on the question of undue influence. The will was made a week before the testator died. He was 73 years of age. He had been ill for a long time from what the doctors diagnosed as cirrhosis or sclerosis of the liver and had become greatly emaciated. It is a fair assumption from the evidence that the testator's mind was considerably weakened by disease, so that his power to resist improper influences was not as strong as it would have been had he been well. His son was alone with him about the time the will was made and had ample opportunity to exercise undue influence, if he so desired. The son did not notify his mother or sisters of his father's intention to make a will, and, aside from the provision for the mother, he got practically all of the property.

The net value of the estate was about $5,000. One-half of it was given absolutely to the widow. With the exception of $100 given to one of them, no provision was made...