#### Will of Nachtsheim.

*October 26, 1917*

February *5, 1918.*

*Wills: Validity: Undue influence.*

1. As to what constitutes undue influence sufficient to avoid a will, each case must rest upon its own particular facts; but in general, in order to establish undue influence there must be shown: (X) opportunity to exercise influence; (2) disposition to influence and motive therefor; (3) susceptibility of the subject to influence by the person having the opportunity; and (4) a re-*557suit indicating the exercise of undue influence by such person. The clear establishment of three of these essential elements may, however, with slight additional evidence as to the fourth, compel the inference of its existence.

2. Evidence in this case is *held*sufficient to show the existence of all the elements of undue influence, and to have warranted the refusal to probate an instrument propounded as the will of a woman who was physically and mentally very weak at the time of signing and who named as executor and made her chief beneficiary a man not related to her, but occupying a position of trust and confidence. *Ball v. Boston,*153 Wis. 27, distinguished.

Eschweilee, J., dissents.

Appeal from a judgment of the circuit court for Milwaukee county: Laweebtce W. Halsey, Circuit Judge.

*Affirmed.*

This is an appeal from a judgment of the circuit court affirming the judgment of the Gounty court denying probate to an instrument propounded as the last .will and testament of Maria Nachtsheim, deceased, upon the ground of undue influence.

The will was presented for probate by one *Wallace J. Kircher,*who is named in the instrument as executor and made chief beneficiary under the alleged will, and who was not related to the deceased.

Two nieces, heirs at law of deceased, filed objections to the probate of the alleged will on the ground, among other things, that the testatrix was not of sound mind and that the execution of the instrument was procured by undue influence exercised by said *Kircher*and one Catherine Bauman, a witness to the will.

The county court held the will void on the ground of want of testamentary capacity as well as undue influence. Upon appeal the circuit court affirmed the judgment of the county court and held the will void on the ground of undue influence and found substantially as follows: That the testatrix was of sufficient mental capacity to make a will; that she, at the time of signing said instrument, was suffering from extreme *558physical wealmess as a result of an incurable nervous disease ©f long standing aggravated by her continued use of alcoholic liquors, in consequence of which her mind was weakened and her power to resist improper influence thereby greatly diminished ; that by reason of her physical and mental weakness she was susceptible to undue influence; that the proponent, *Kircher,*occupied a position of trust and confidence in his dealings with the testatrix and was disposed to exercise undue influence over her for his own benefit, which he had ample ■opportunity to and did do; that Catherine Bauman had opportunity to exercise undue influence over the testatrix and ishowed a disposition to and did exercise such undue influence Tor the benefit of the proponent, *Kircher;*that the proponent, *Kircher?*and subscribing witness, Catherine Bauman, exercised fraudulent and undue influence over the testatrix in inducing and procuring the execution of said instrument, atnd that the instrument was signed by the testatrix as the result of such fraudulent and undue influence exercised upon tier by them.

The court found as conclusions of law that the instrument propounded for probate is not the will of said testatrix and is not entitled to be admitted to probate as such, and that the judgment of the county court should be affirmed.

Judgment was entered accordingly, from which this appeal was taken.

*Frank H. Hannaford*and *Hubert 0. Wolfe*of Milwaukee, ■attorneys fox proponent *Wallace J. Kircher,*and 17. *H. ■Churchill*of Milwaukee, guardian *ad litem*for *Appolonia Wolters*and *Catherine Mueller,*for the appellants.

*.Edgar L. Wood*of Milwaukee, for the contestant respondents.

The following opinions were filed November 13, 1917:

KeRWIb, J.

Many decisions of this court relating to what •constitutes undue influence sufficient to avoid a will are cited *559and relied upon by counsel on each side. An examination of these cases as well as others in this court will show that each case rests upon its own particular facts viewed in the light of well settled principles of law. This court in cases relating to will contests on the ground of undue influence has laid down some general rules respecting the elements necessary to exist in establishing undue influence as follows: (1) The opportunity to exercise influence; (2) the disposition to influence and motive therefor; (3) the susceptibility of the subject to influence by the person having the opportunity; and (4) the result indicating the exercise of undue influence by such person. *Elliott v. Fisk,*162 Wis. 249, 155 N. W. 110; *Ball v.*Boston, 153 Wis. 27, 141 N. W. 8.

In *Elliott v.*Fisk, *supra,*this court said:

> “While it is true that a testator susceptible to undue influence ; an opportunity for the exercise thereof; a disposition: to exercise it; and a result indicating its exercise must he established by clear and satisfactory evidence before a court is justified in setting aside a will, yet the clear establishment of three of these essential elements may with slight additional evidence as to the fourth compel the inference of its existence. This is especially true where the will is not what may be termed a natural one, such as relationship usually dictates.”

A great amount of testimony was offered on both sides- upon the question of undue influence. We shall not prolong this-opinion by a discussion of it. The questions involved as appear from the record are purely questions of fact, and both: the county and circuit courts were in far better position to determine these questions than this court, as has been often said by this and other courts.

There is ample evidence to support all the elements of undue influence, and this court has so held in cases where the evidence of undue influence was no stronger than in the instant case. *Elliott v.*Fisk, 162 Wis. 249, 155 N. W. 110; *Will of*Lynch, 163 Wis. 466, 157 N. W. 557; *Baker v.*
      *560
      *Baker,*102 Wis. 226, 78 N. W. 453; *Derse's Will,*103 Wis. 108, 79 N. W. 46; *Bryant v. Pierce,*95 Wis. 331, 70 N. W. 297; *Will of Slinger,*72 Wis. 22, 37 N. W. 236.

Much stress is placed by counsel for respondent upon *Ball v. Boston,*153 Wis. 27, 141 N. W. 8. It will be seen, however, upon examination of that case that the controlling facts were quite different from the facts in the instant case, and moreover reversal was put in part at least upon the ground that the lower court did not apply correct rules of law to the facts found.

In view of the repeáted decisions of this court and the es- • tablished rule that the findings of the trial court will not be disturbed unless clearly wrong, we are not able to say that the decision of the court below should be disturbed.

The court below allowed $400 attorney’s fees to the contestants to be paid out of the estate. This is authorized by sec. 4041&, Stats.

*By the Court.*— Judgment affirmed.

Esci-iweilee, J.

(dissenting). In this case the testimony is to me clear, satisfactory, and convincing that the testatrix was competent to make a will and that the one propounded here v?as one that she wished to make and that it was not the result of undue influence.

Nothing would be gained by a recital of the facts which lead me to this conclusion and I shall do no more than thus register my protest against what seems to be a disposing of the property of the testatrix in a manner different from what she, having a right to declare her wishes and having freely declared them, willed that it should go.

The proponent and appellant *Wallace J. Kircher*moved for a rehearing.

In support of the motion there was a brief on behalf of the appellants by *Frank II. Ilamiaford*and *Hubert O. Wolfe*
      *561of Milwaukee, attorneys for said proponent, and *Charles 8. Thompson*and *Henry Mahoney*of Milwaukee, of counsel, and by *W. H. Churchill*of Milwaukee, guardian *ad litem*for *Appolonia Wolters*and *Catherine Mueller.*

*Edgar L. Wood*of Milwaukee, for tbe respondents.

The motion was denied, with $25 costs, on February 5, 1918.

Owen-, J., took no part.