#### Will of Skrinsrud : Skrinsrud, Appellant, vs. Schwenn and others, Respondents.

*May 4*

October *6, 1914.*

*Wills: Undue influence: Evidence.*

1. A will should not be set aside as having been made under undue influence unless it be shown by clear and satisfactory evidence that the testator was subject to such influence, that the opportunity to exercise it existed, that there was a disposition to exercise it, and that the result appears to be the effect of such influence.

2. A will giving one half of testator’s estate, valued at about $5,000, to his widow, the other half to his son, and making no provision for his three married daughters except that the son was to pay $100 to one of them, is sustained in this case, there being no clear and satisfactory evidence of a disposition on the part of the son to exercise undue influence or that the will was the effect of such influence.

Appeal from a judgment of the circuit court for Dane ■county: E. Rat Stevens, Circuit Judge.

*Reversed.*

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 ad*143mission 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 0. 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*Shrinsrud, 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 questions 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.

For the appellant there was a brief by *Edward J. Reynolds*and *Henry T.*Sheldon, and oral argument by *Mr. Reynolds.*

*F. K.*ShuHleworth, for the respondents.

The following opinion was filed May 21, 1914:

Barnes, J.

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.

The case is somewhat closer on the question of undue in*144fluence. Tbe will was made a week before tbe testator died. He was seventy-three years of age. He bad been ill for a long time from wbat tbe doctors diagnosed as cirrhosis or sclerosis of tbe liver and bad become greatly emaciated. It is a fair assunxption from tbe evidence that tbe testator’s mind was considerably weakened by disease, so that bis power to resist improper influences was not as strong as it would have been had be been well. His son was alone with him about tbe time tbe will was made and bad ample opportunity to exercise undue influence if be so desired. Tbe son did not notify bis mother or sisters of bis father’s intention to make a will, and aside from tbe provision for tbe mother be got practically all of tbe property.

Tbe net value of tbe estate was about $5,000. One half of it was given absolutely to tbe widow. With the exception of $100 given to one of them, no provision was made for tbe three daughters. They were all married, but tbe evidence fails to disclose their circumstances. Tbe testimony showed that there bad been something of a quarrel between *Ole*and bis mother a short time before tbe will was made and that it was because of this quarrel tbe mother came to Madison to stay with one of her daughters for a short time. Tbe mother testified that *Ole*bad threatened to send her to tbe insane asylum, and one of tbe daughters testified to substantially tbe same effect. Tbe mother testified that tbe reason *Ole*was mad at her was because “be wanted to have everything alone and I wanted tbe girls to have something too. He wanted to have tbe farm and I wanted something and I wanted the girls to have something.” .This is tbe only testimony which directly tends to show a disposition on tbe part of *Ole*to unduly influence bis father in making tbe will.

One of tbe daughters bad resided in Madison for twenty years or more. Another bad been married for twelve years and resided within a few miles of her father. It does not appear just bow long tbe third one bad been away from home. *145
      *Ole*bad also been away from borne probably for tbe greater part of tbe time for fourteen years or more. It does not appear definitely bow mncb of tbe time be spent at borne and bow mncb away from borne, or to wbat extent be rendered assistance to bis father on tbe farm. Tbe evidence tended to show that tbe father was on good terms with all of tbe children. Tbe circumstances might have been such that tbe disposition made of tbe property by tbe testator was not an unreasonable one. Tbe widow bad been well provided for considering tbe amount of tbe estate. The sum left was not large. Tbe daughters may be comfortably well off. *Ole*may have assisted tbe father in accumulating tbe property to a greater extent than did tbe daughters. These circumstances all might very properly have been shown, but on tbe record as we find it, it is difficult to say that tbe distribution was such an unnatural one as to arouse suspicion that the testator bad been unduly influenced. One witness testified that be believed tbe testator told him at one time that be wished *Ole*would stay home, and that if be would come home and help support him be could have tbe farm. That was two or three years before tbe testator’s death. Tbe witness Tollef Lee testified to a statement made by testator about three weeks before tbe will was made which indicated that be was thinking of making at least a larger provision for *Ole*than for tbe others, but said that if be did “it will be kicked from tbe other party.” Tbe testator and *Ole*lived together in Lincoln county for two years. During that time the mother and one of tbe daughters were in tbe old country and tbe other two daughters lived near Springdale. Tbe evidence on tbe whole tends to indicate that tbe testator was more partial to *Ole*than to bis other children.

A case of undue influence is made out where it is shown (1) that tbe testator was subject to such influence; (2)- that tbe opportunity to exercise it existed; (3) that there was a disposition to exercise it; and (4) that tbe result appears to *146be the effect of such influence. As the law now is, these-facts must be shown by clear and satisfactory evidence. *Ball v. Boston,*153 Wis. 27, 141 N. W. 8; *Duncan v. Metcalf,*154 Wis. 39, 44, 141 N. W. 1002; *Boardman v. Lorentzen,*155 Wis. 566, 145 N. W. 750. Undue influence has not been established in this case by the required degree of proof. Opportunity was clearly shown, and the evidence is quite-clear that the mental and physical condition of the testator was such that his power of resistance was not very great. On the other two propositions involved, it cannot be said that the evidence to support them was clear and satisfactory.. The judgment therefore must be reversed.

*By the Court.*— Judgment reversed, and cause remanded with directions to affirm the order of the county court admitting the will to probate.

A motion for a rehearing was denied, with $10 costs, on October 6, 1914.