#### Will of Mullan: Fowler, by guardian *ad litem,*Appellant, vs. Crandall, Respondent.

*September 16*

October *5, 1909.*

*Wills: Mental capacity: Undue influence: Evidence.*

*£.*Evidence showing, among other things, that although the faculties of a testatrix were somewhat impaired by age she still had mental powers sufficient to call to mind the particulars of her business and to hold them in mind for such a time as to perceive and understand their obvious relations and to form a rational judgment in respect to them, is *held*to sustain a finding that she had sufficient mental capacity to make a will.

2. Evidence which, among other things, fails to show any solicitation by any one for the making of the will, or that the testatrix was susceptible to the influence of others in such matters, is *held*to sustain a finding that the execution of the will was not procured by undue influence.

*292Appeal from a judgment of tbe circuit court for Dunn county: E. W. Helm:s, Circuit Judge.

*Affirmed,.*

This proceeding was commenced in the county court of Dunn county by a petition for the probate of the will of Mary R. Mullan, deceased. A contest was filed to the probate in behalf of *Hattie Fowler,*an insane daughter and the sole heir at law of the deceased. The county court found that the testatrix did not have sufficient mental capacity to make a will at the time of the execution of the alleged will and that the execution of it was obtained by fraud and undue influence. Probate of the writing was denied. Upon appeal to the circuit court judgment was entered reversing the judgment of the county court and ordering the probate of the alleged will. This is an appeal from such judgment.

Mary R. Mullan died at Red Wing, Minnesota, February 13, 1908, aged seventy-four and one-half years: The alleged will was executed two months before at the residence of *B. D. Crandall*in Red Wing, to which the deceased had gone in the previous October from her home at Menomonie, Wisconsin. *Hattie Fowler,*a daughter and the sole heir at law of the deceased, is the contestant. She has been confined in a county insane asylum since 1892. The deceased also left surviving her three sisters and four brothers. Maggie Crandall, the wife of *B. D. Crandall,*was taken into the home of the deceased when she was seven years of age, and continued to live there until her marriage. She was never adopted, but is referred to in the will as the adopted daughter of the deceased. After providing for the debts of the deceased and for funeral expenses, the will gives *Hattie Foiuler*$3,000; $10 is given to each of the brothers and sisters of the deceased ; and the residue of the estate is then devised to Maggie Crandall and her husband. The deceased at the time of her death possessed about $100 worth' of personal property. The balance of her estate, between $26,000 and $28,000, consisted of real estate, about one half of which was situated in Minne*293sota and one balf in Wisconsin. Iler indebtedness, exclusive ■of $1,000 incurred as funeral expenses, was from $5,000 to $6,000. Tbe estate of tbe deceased bad been accumulated by-conducting a millinery store in Menomonie. Sbe bad been twice married; ber first busband dying some fifteen years before sbe did, and ber second busband four or five years before.

In bebalf of tbe contestant of tbe will it is claimed tbat tbe evidence introduced shows tbat tbe deceased was of insufficient mental capacity to make a will; tbat sbe was physically weak and feeble, and tbat ber mental faculties bad become impaired to such an extent tbat sbe was unable to comprehend and understand ber business affairs.; tbat sbe was unable to keep in mind ber relationship and natural obligations to ber daughter and relatives, and lost mental control of herself and ber property to an extent which evinced ber incapacity to transact business or to malm a will; and tbat this condition bad existed for a considerable time before tbe making of tbe will in question. It is also claimed tbat sbe was so unduly influenced by one Boardman and tbe Crandalls to make this will tbat it is not tbe expression of ber wishes and' desires in tbe final disposition of ber property, and tbat therefore it was a fraudulent proceeding by these parties for their personal gain and benefit. On tbe other band it is claimed tbat tbe evidence shows tbat tbe deceased bad never been a good manager of her property; tbat tbe feebleness of body and dullness of tbe senses were only tbe accompaniments of age, and tbat tbe insistence of tbe deceased for participation in ber numerous business transactions indicates tbat sbe retained an unusual and sufficient mental capacity to do business and to attend to ber affairs; tbat, far from being the victim of undue influence, she was a self-reliant and assertive person and always attended to ber affairs; tbat sbe fully comprehended and understood them, and acted freely in tbe making of tbe will and tbe disposition of ber property.

*294After a full bearing tbe circuit court beld tbat sbe bad sufficient mental capacity to make a will and that sbe was not induced to make it by tbe undue influence of others. Tbe court ordered tbe will admitted to probate.

*J. B. Mathews*and *B. E. Bundy,*for tbe appellant.

For tbe respondent there was a brief by *Freeman & Freeman,*and oral argument by *G. E. Freeman.*

Siebeoeeb, J.

It is argued tbat tbe trial court’s finding tbat tbe testatrix bad mental capacity to make tbe will is against tbe clear preponderance of tbe evidence. In passing on this question tbe fact tbat tbe trial court bad tbe fullest opportunity to observe tbe witnesses while testifying and to give proper weight to their evidence must not be overlooked. Its-, conclusions, therefore, are of weight and cannot be disturbed unless it is apparent from an examination of tbe evidence tbat they are against tbe clear preponderance of tbe evidence. It is strenuously asserted tbat tbe evidence clearly shows tbat Mrs. Mullan was so weak mentally at tbe time tbe will was-made tbat sbe was incapable of understanding and comprehending tbe nature of tbe act, tbe extent of tbe disposition-made by tbe will, who were tbe natural objects cf her bounty, and tbe manner in which sbe desired tbat disposition should' be effected. Reliance for this contention rests mainly on tbe evidence tending to show the change in her physical health and strength, her changed mental attitude, and her unsuccessful administration of her business and financial affairs in the-later period of her life. It is undisputed tbat she bad been an intelligent person of strong will and fair business ability-in tbe prime of her life. Sbe bad always evinced tbe characteristics of independence and self-reliance in tbe conduct of her affairs. An examination of .the evidence discloses tbat these characteristics were impaired in her old age, but there was not such a degree of impairment of her faculties and abilities in comprehending and understanding her busi*295ness affairs as constitutes mental incompetency to make a "will. It is shown that she still possessed mental powers sufficient to call to mind the particulars of her business and the affairs of life, and to hold them in mind for such a time as to'perceive and understand their obvious relations and to form a rational judgment in relation to them. This condition of her mental faculties evinced sufficient mental capacity to enable her to make a will.

As to whether the testatrix was unduly influenced to make this will, we are persuaded that the trial court in its opinion correctly expresses the state of the evidence on this issue. He found that the evidence was devoid of anything showing any solicitation by *Crandall*or his wife or any other person for the making of this will, that the evidence is well-nigh barren of facts tending to show that she was susceptible of being influenced in dealing with her property, and that her acts and conduct refute the claim that she was susceptible to the influence of others in these matters. Her attitude toward the Crandalls and others dealing with her was that of a self-willed and self-reliant person. While the transaction of the settlement with her tenant and the giving of the powers of attorney to *Crandall*and Boardman show a want of good business management and may indicate a want of fair dealing with her by all of these persons, it is not sufficient to show that she was in fact unduly influenced by them to make this will. We must hold that the trial court’s conclusion on this question cannot be disturbed by this court, and that the judgment admitting the will to probate was correct.

*By the Court.*— Judgment affirmed