Walker's Will. Coe v. Walker

• Decision Date: 03 May 1927
• Citation: 193 Wis. 264,213 N.W. 626
• Court: Wisconsin Supreme Court
• Parties: IN RE WALKER'S WILL. COE (WISCONSIN METHODIST HOSPITAL & HOME ASS'N, RESIDUARY LEGATEE) v. WALKER ET AL.

193 Wis. 264

213 N.W. 626

IN RE WALKER'S WILL.^a1

COE (WISCONSIN METHODIST HOSPITAL & HOME ASS'N, RESIDUARY LEGATEE)

v.WALKER ET AL.

Supreme Court of Wisconsin.

May 3, 1927.

Appeal from Douglas County Court; William E. Haily, Judge.

Proceeding for the probate of the will of Francis C. Walker, deceased, wherein the Wisconsin Methodist Hospital & Home Association was residuary legatee. From a judgment denying probate, the executor, Arthur E. Coe, appeals. Affirmed.--[[[By Editorial Staff.]

The will of Francis C. Walker, deceased, was offered for probate in the county court of Douglas county by the Wisconsin Methodist Hospital & Home Association (hereinafter referred to as the Hospital Association), the residuary and principal legatee. The probate of the will was objected to by the brothers and sisters of the deceased. The county court denied probate of the will on the ground that it was procured by undue influence, and the executor named in the will brings this appeal.Coe Bros., of Barron, for appellant Coe.

Frank R. Bentley, of Madison, for residuary legatee.

Donovan & Gleiss, of Tomah (Grady, Farnsworth & Walker, of Portage, of counsel), for respondents.

OWEN, J.

At the time of his death on March 7, 1924, the testator was 63 years of age. He had acquired an estate valued in excess of $40,000. He was a farmer and owned considerable lands in Barron and Douglas counties. For a number of years he had lived near Chetek, in Barron county. During the latter years of his life he lived in Gordon, in Douglas county. He was thrifty and prosperous and a close business man. During the year 1922 it was apparent not only to himself but to his friends and neighbors that he was in failing health. During that year and the year 1923 he aged rapidly in appearance. In February of 1923 he made his will, in which he left all of his property to his relatives, principally his brothers and sisters.

In July of 1923 he made a visit to Sparta, where a number of his brothers and sisters resided. He spent July 4th with them. A day or two after July 4th he went to the Mayo clinic at Rochester in the hope that he might discover the nature of his ailment. It was there determined that he was suffering from pernicious anæmia. He returned to his home at Gordon and declined rapidly, both physically and mentally. From that time until the 1st day of November, 1923, he lived on his farm at Gordon. He was alone, except for the presence of certain hired help.

On November 1, 1923, he went to Chetek and procured a room in a hotel, where he stayed for about three weeks. During that time he was confined to his bed, or at least to his room, and was cared for by the proprietor of the hotel and his wife. Thereafter he secured living accommodations in the residence of Guy Williams, in the village of Chetek. He remained there about one week, during which time he was confined to his bed and during which time he was cared for by Mr. and Mrs. Williams. In the latter days of November he was taken to the home of one of his sisters in Sparta, where he remained until December 30, when he was removed to the hospital at Sparta. While in the hospital at Sparta, on January 7, 1924, he executed a will, leaving the bulk of his property to the Hospital Association. Within a few days thereafter he was caused to be removed from the hospital at Sparta by the Rev. J. W. Irish, executive secretary of the Wisconsin Methodist Hospital & Home Association, to the Methodist Hospital at Rice Lake, where he died on the 7th of March, 1924.

It will be noted that in February, 1923, the testator made his will in favor of his relatives. It will further be noted that on the 7th day of January, 1924, he made another will, by the terms of which practically all of his property was left to the Hospital Association.

The county court found that the second will was executed by reason of undue influence exerted upon the testator by J. W. Irish, executive secretary of the Hospital Association. This appeal challenges the correctness of that finding.

An examination of the record convinces us that this finding is well supported by the evidence, and that the judgment of the county court must be affirmed. In stating our reasons therefor we shall not review the evidence in detail. As usual in such cases, the evidence is voluminous, and is addressed to the physical and mental health of the testator for a period of two or three years prior to his death. We will simply state in the most general way the conclusions which this evidence, when brought together, weighed and considered, tends to support.

It is undisputed that the death of the testator was due to the disease known as pernicious anæmia. It is impossible to tell when the disease originated, but it is probable that he was suffering from it to some extent for a period of at least two years prior to his death. Distinguished medical experts also testified, such testimony being based upon hypothetical questions, that in their opinion the pernicious anæmia was accompanied by senile dementia. It was admitted by practically all medical experts who testified that in a certain percentage of cases pernicious anæmia is accompanied by mental disturbance, and that mental symptoms are often the first manifestations of pernicious anæmia. Neighbors and associates of testator testified to many irrational acts and manifestations on his part during the summer and fall of 1923. True, these witnesses testified to isolated instances of irrational conduct, no one of which standing alone would perhaps justify the conclusion that during that time he was failing mentally, but the testimony of all the witnesses taken together presents an accumulation of irrational conduct which easily justifies, if it does not compel, the conclusion that during the summer and fall of 1923 his mental faculties were perceptibly and rapidly diminishing. During that time his personal and business habits underwent a pronounced change. He became shiftless in business matters and profligate in the handling of moneys, checks, drafts, etc.

In this weakened condition he was taken to the hotel at Chetek. There he was introduced to Rev. J. W. Irish, executive secretary of the Hospital Association. Rev. Mr. Irish called upon him frequently while he was at the hotel and during the time that he was confined at the Williams residence. The testator did not welcome these visits of Rev. Mr. Irish. Rev. Mr. Irish concedes in his testimony that the objects of these visits were two-fold: First, to minister to his spiritual well-being; and, second, to secure a bequest in favor of the Hospital Association. During these times the testator expressed himself as displeased with the visits and importunities of Rev. Mr. Irish. He compared him to a buzzard hovering over a dead carcass. He expressed the fear that at some time he might be persuaded to change his will. Upon one occasion, when staying at the Williams home, he was called upon by Rev. Mr. Irish together with an attorney. They had a will prepared, which the testator refused to execute. There is evidence in the record that Rev. Mr. Irish expressed himself as being greatly disappointed by reason of the refusal of the testator to execute the will upon this occasion. After they left, the testator told Mrs. Williams of the efforts of Rev. Mr. Irish to induce him to sign the will. He told Mrs. Williams that he was then, and for some time had been very much afraid that Rev. Mr. Irish would prevail upon him to sign this kind of a will, because, he said:

“I am getting weaker and weaker; my body is getting weaker, and as my body grows weaker, my mind will grow weaker, and a big strong man like Mr. Irish, with a physique like that man has, talking to a poor, old, weak man like me, he is bound to finally break me down.”

After that occurrence Mrs. Williams wrote to Mrs. Nichols, a sister of the testator living at Sparta, advising her that Mr. Walker was at her residence and that he would be glad to see any of his relatives who could find it possible to come, if only for a few hours. She further stated:

“So far Mr. Walker's mental faculties are unimpaired, but he has expressed fears that should he become very weak the constant suggestion of several solicitors for a certain hospital might finally work on him to such an extent as to cause him to sign the will they have all ready drawn up leaving all his property to that institution.”

This letter was written on November 21st, and within two or three days thereafter his brother Charlie and two sisters came and removed him to the home of his sister, Maggie Starkey, at Sparta, where he remained until December 30th, when he was taken to the hospital at Sparta for a blood transfusion. Rev. Mr. Irish continued his visits...