#### Will of Muellenschlader: Trieloff, Executor, Appellant, vs. Muellenschlader and others, Respondents.

*April 18*

May *8, 1906.*

*"Wills: Mental capacity: Undue influence.*

1. A finding by a jury, approved by tbe trial court, to tbe effect tbat tbe testator, at tbe time be executed tbe instrument in question, bad not sufficient mental capacity to make a will, is *held*to be contrary to tbe clear preponderance of tbe evidence, wbicb showed tbat be bad sufficient capacity while tbe instrument was being drawn by an attorney, to wbom be gave full directions therefor, and tended strongly to show tbat be consciously and understandingly participated in tbe final execution thereof, although bis death followed in a few minutes.

2. The evidence (showing, among other things, that a partner of the testator, to whom he bequeathed a considerable sum, had visited the testator frequently during his illness and did so four times on the day of his death, and that such partner had in his possession at tbe time tbe certificates of deposit mentioned in the will and the bank book of the testator) is *held*insufficient to create a presumption of undue influence.

Appeal from a judgment of the. circuit court for Nock ■county: B. E. DuNwiddie, Circuit Judge.

*Reversed.*

This is an appeal from a judgment of tbe Nock county circuit court affirming tbe judgment of tbe county court, wbicb denied probate to tbe writing propounded as tbe will of Herman Muellenschlader, deceased. It appears tbat tbe deceased resided in Nock county at tbe time of bis death and left an ■estate. Tbe writing now propounded as bis last will was submitted for probate to tbe county court. Tbe widow and tbe ■guardian *ad litem*of tbe infant children of tbe deceased filed objection to its probate upon tbe grounds tbat it was not bis will, tbat be was not of sound and disposing mind when it is alleged to have been made, and tbat, if made and signed by him, it was procured by tbe undue influence of *Charles Triel-off,*one of tbe persons named as a beneficiary in tbe instrument.

*365After a trial of tbe issues before tbe county court it awarded judgment denying probate to the instrument. Upon appeal from tbis judgment to tbe circuit court tbe issues were tried there by tbe court and before a jury. In answer to tbe one question submitted to them tbe jury found tbat tbe deceased was not of sound mind at tbe time be executed tbis written instrument. Tbe court made its findings of tbe facts and refused to probate tbe instrument as tbe will of tbe deceased. Among its findings of fact material to tbe consideration of tbis appeal are these:

'“9. Tbat it is a peculiarity of peritonitis tbat tbe suffering-it causes has less effect upon tbe mental powers, and tbat persons who die therefrom retain usually their mental faculties longer, stronger, and clearer than 'in any other disease; tbat they usually retain consciousness up to a short time before death, and often to tbe very last; that in tbe case of tbe deceased bis weakness was such at the time of tbe making of bis mark by him to said instrument, and tbat bis death followed so immediately upon tbe signing of tbe instrument by said witnesses, tbat it is impossible to determine certainly whether deceased was fully conscious of what be was doing when be made said mark, and whether or not be was conscious of tbe fact of tbe signing by tbe witnesses, and for tbat reason tbe court approves tbe finding of tbe jury.

“10. Tbat tbe deceased and tbe legatee, *Charles Trieloff,*were, at tbe time of tbe execution of tbe said instrument offered for probate, copartners and 'bad been such for a number of years prior thereto', and tbat a confidential relation existed between them as such copartners; tbat no explanation has been made or suggested as to why tbe deceased should have given said legatee the legacy specified in said instrument; tbat said legatee, said *Trieloff,*visited tbe deceased frequently during bis sickness, and was there some four times on the day of bis death; tbat when be was called into tbe room to assist in determining what tbe names were, which were in doubt, and tbe spelling thereof, tbat be bad in bis possession, mid in bis pocket, tbe several certificates of deposit mentioned in said instrument, and also -the bank book belonging to said deceased, and that no explanation has been made *366or offered as to bow be obtained possession of the same; that the circumstances surrounding the giving of said legacy by the deceased to said legatee are such as to call upon him for explanation and a showing that the same was a free, voluntary, and intelligent act of the deceased, which has not been done.”

The instrument bears date January 26, 1904, the day of the death of the deceased. In this instrument the estate of the deceased is bequeathed as follows: (1) To *Charles Trieloff*$2,000; (2) to his son and daughter, equally, the avails of two cei’tifieates of deposit in designated banhs amounting to about $3,000; (3) to his wife and these children in equal shares a bequest of property in Weld, Germany, stated to be about $3,500; (4) to his brother Charles, of Janesville, Wisconsin, the amount due his estate from August Marx, stated to be $2,000; and (5) the rest of his property to his wife and two children in equal shares.

It appears that at the time of his death he was engaged in the saloon business in partnership' with *Charles Trieloff*and that he had been so engaged for a number of years immediately preceding it. He was about forty years of age. He was taken sick on the 24th day of January, 1904, with intestinal trouble. Dr. Woods was called to attend him and had charge of him. On Tuesday, January 26th, Dr. Woods last' saw him at about 11 o’clock in the forenoon, and left him in a condition indicating nothing extraordinary or dangerous. At about 1 o’clock of this day his condition had become worse, and Drs. Palmer and Gibson, being called, found him suffering from peritonitis, which they believed to be incident to a bowel perforation. It was not then deemed advisable to undertake an operation. Dr. Palmer saw him thereafter a.t about 4 o’clock, when he had great difficulty in breathing. There was more distention in the abdominal region and weaker heart action. His appearance was cyanotic, indicating impaired oxygenation of the blood and causing profuse *367perspiration. These symptoms were accompanied by restlessness, vomiting, and much pain. The doctor bad a conversation with him with reference to his property, and he informed the doctor that he had money in banks and some cash in his pocket. In response to the doctor’s inquiry as to whether he wanted to make a will he said, “Yes,” and upon being told that he had better get a lawyer he replied in the affirmative. In compliance with his wish the doctor caused a lawyer to be called, and Mr. Sutherland, an attorney, soon arrived at the house, and at the deceased’s request the doctor also sent for *Mr. Trieloff.*Mr. Sutherland arrived a few minutes after 5 o’clock, and Dr. Palmer informed him that the deceased desired to make a will.- In response to Mr. Sutherland’s inquiry: “Is this man of sound mind?” the doctor replied, “Yes.” Thereupon Sutherland proceeded to write the will. *Mr. Trieloff,*who was then present, left the room at Sutherland’s suggestion. The deceased gave Sutherland the names of his partner, *Trieloff,*his wife, children, and his brother, and enumerated his properties, and directed, as specified in the instrument, the amounts and kinds to be given to each. It appears that in doing this he experienced some difficulty on account of his impaired breathing and his suffering and great pain. Dr. Palmer and *Mr. Trieloff,*who was called into the room after a part of the instrument had been written, gave some assistance .in correctly getting from the deceased the names of the persons and some foreign places- which ' were to be written in the paper. Each provision was written and read separately, and assented to by him. When the paper had been written it was placed for signature on a book before the deceased, while he was in a sitting posture in bed. On account of his weakness and difficult breathing, upon the suggestion of Mr. Sutherland, he made his mark instead of writing his name, which he requested Mr. Sutherland to do.

Dr. Palmer testified that the paper was then removed, and that Sutherland placed it on a table and wrote, while he, the *368doctor, gave the deceased a hypodermic injection or heart stimulant; that he then observed that he was very weak, and stated, “Mr. Sutherland, the man is going; you will have to hurry,” and that Sutherland then pushed the paper to him, saying “Sign here;” that he signed it, and then gave his attention to the deceased; that he is not certain whether Sutherland had signed it; that he did not see him sign it, hut that he heard him writing; that the deceased dropped into short breathing, commenced to vomit, and that death followed in a few moments.

Mr. Sutherland and *Mr. Trieloff*testify that before the deceased appended his mark to the paper it was read to him in full; immediately after signing it he spoke to Mr. Sutherland, saying that “no administrator” (meaning executor) had been named, and telling Mr. Sutherland that he wanted *Charles Trieloff*named; when asked by Sutherland who that was, he pointed at Trieloff, saying, “It is that man there, my partner;” that he then declared it as read to be his will, and desired Palmer and Sutherland to sign as witnesses; that he was lying in a reclining position in his bed when the witnesses signed it on a table near the bed in his immediate presence and in the presence of each other; that thereupon the paper was folded, and that Sutherland stated to the deceased, “•You can have this filed with the county judge, or I will keep it and put it in my safe;” and that he replied, “You keep it.”

At the conclusion of Ur. Palmer’s evidence on direct examination he states that when the deceased executed the will he was, in his opinion, of sound mind. Sutherland and *Trieloff*testify to the same effect. Upon cross-examination Dr. Palmer states that by a sound mind he meant a mind not diseased; and in reply to a question based on his knowledge he answered that in his opinion the deceased had not sufficient actual memory to collect in his mind, and comprehend without prompting, the condition of his property, his relation to his children and others who might properly be his *369beneficiaries, and to bold these things in his mind sufficiently to perceive their relation to each other, and to form a rational judgment in relation to them. In response to a hypothetical question Drs. 'Gibson and Buckmaster express the same opinion. ■ Drs. Woods and Pember expressed a contrary opinion on substantially the same hypothesis.

*William G. Wheeler,*for the appellant.

Eor the respondent *Anna Muellenschlader*there was a brief by *Fethers, Jeffms & Mouat,*and oral argument by *M. G. Jeffris.*

To the point that the law casts upon the appellant the burden of showing that the making of the will was untainted with undue influence and was the intelligent and deliberate act of the grantor, they cited *Davis v. Deem,*66 Wis. 100, 110; *Gole v. Getzinger,*96 Wis. 559, 513; *Will of Slinger,*72 Wis. 22; *Doyle v. Welch,*100 Wis. 24; *Small v. Ghampeny,*102 Wis. 61; *Baker v. Baker,*102 Wis. 226; *Disch v. Timm,*101 Wis. 179; *In re Derse’s Will,*103 Wis. 108; *In re Downing’s Will,*118 Wis. 581.

*John Cunningham,*guardian *ad litem*for *Glara*and *Herman Muellenschlader,*

contended, *inter*alia, that as to signing and witnessing testator must be mentally observant of the specific act in progress. *Aikin v. Weckerly,*19 Mich. 482, 504; *Maynard v. Vinton,*59 Mich. 139, 150, 151. “In presence of” means conscious presence. *Dunlop v. Dunlop,*10 Watts, 153; 29 Am. & Eng. Ency. of Law (1st ed.) 175. Testator’s mind must hold up to the last. Gassoday, Wills, § 447.

SiebeokeR, J.

On its face the paper writing, propounded as the last will of the deceased, presents all the legal formalities requisite to a proper execution of a will, but the circuit court denied probate to it, assigning as one of the grounds “that it is impossible to determine certainly whether the deceased was fully conscious of what he was doing when he signed it (made his mark), or whether or not he was conscious of the fact of the signing by the witnesses.” The facts *370established by tbe evidence are set forth in the foregoing statement of facts. The court evidently concluded that the deceased had the mental capacity and was capable of making a will at the time Mr. Sutherland arrived and conferred with him concerning his property, the provisions of the will, and the persons to whom he wished to bequeath it. The evidence clearly shows that immediately after the arrival of Dr. Palmer on his 4 o’clock visit the deceased conveyed his wishes and instructions concerning this subject to him in a perfectly intelligent and rational manner, indicating clearly that he then had a full understanding and comprehension of this suU ject. Respondents contend that from the time the' doctor saw him at 4 o’clock it is apparent that the deceased was so weakened from pain and suffering, and that his mental strength had so rapidly waned, that he had not “sufficient ac ■ tive memory to collect in his mind, and comprehend without prompting, the condition of his property, his relation to his children and other persons who might be the beneficiaries, and the scope and bearing of his will, and to hold these things in his mind for a sufficient length of time to perceive their obvious relations to each other, and be able to form some rational judgment in relation to them.” The direct evidence on this question is limited to that furnished by the three witnesses who were present when the proposed will was prepared and executed. Their evidence as to what occurred and as to what the deceased said and did is in accord up to the time of the signing of the instrument. It is clearly established that he freely communicated with Mr. 'Sutherland in the presence of Dr. Palmer and *Mr.*Trieloff, gave directions as to the disposition of his property, named the beneficiaries, designated the amounts he wished to bequeath to each, and •described the specific property of each bequest. He informed them, in a clear and positive manner, of what property he had, its nature and whereabouts, and expressed approval separately of each bequest after it had been written and read to *371•him. Upon these points, in the transaction of the making of this instrument, the evidence of these witnesses is in accord and as to what actually occurred-and as to deceased’s participation in them. There seems but one inference which can be drawn from all the facts and circumstances, namely, that up to the point of the signing and attestation of the instrument the deceased was possessed- of sufficient mental capacity to make a will. The court, however, held that it was not shown that this state of his mind persisted to the conclusion of the transaction and that he consciously and understandingly participated in the final execution of the instrument.

We must turn to the evidence of these witnesses as the only -direct testimony on this branch of the case. The witnesses Sutherland and *Trieloff*testify positively that the will was fully written and completed as directed by the deceased; that it was then read to him as a whole; that he understood it and •declared that it expressed his will; that he signed it by making his mark in the manner described by them and Dr. Palmer; that he called Mr. Sutherland’s attention to the fact that no one had been designated in it as executor, and that he thereafter indicated that he wished his business partner, *Trie-lojfj*named as executor, and that he pointed him out as present in the room; that *Trieloff’s*name was then inserted and the will was signed by Dr. Palmer and Mr. Sutherland on a table placed near his bedside, and in the immediate presence •of the deceased; that Mr. Sutherland then inquired of him whether he should deposit the instrument for safe-keeping with the county court or keep it in his safe, and that the deceased then directed him to keep it in his custody. Most of these material facts are not expressly denied by Dr. Palmer, but he states that after deceased had attached his signature he immediately reclined upon the bed, manifested no active participation in what transpired when he and Mr. Sutherland signed, that the deceased was then very weak and low, *372and that death followed in a very few moments. On direct examination he expressed it as his opinion that the deceased was of sound mind. Upon cross-examination he gave it as his opinion that during the time the transaction took place he had not sufficient mental capacity to make a will. In addition to the direct evidence of these three witnesses there is the opinion evidence of the physicians who testified as experts in support and denial of the fact of the deceased’s testamentary capacity. An examination of the evidence given by Dr. Palmer shows that he took an active part, at the request of the deceased, in having the will made and drawn, assisted him in procuring an attorney, and discussed with him the nature of his property and the disposition he wished to make of it. He detailed facts and circumstances showing that the deceased gave him a comprehensive understanding of his purpose, that the deceased directed all the provisions of the proposed will, and that he declared it to be and signed it as his will, and that he (the doctor) signed his name as an attesting witness in the presence of the deceased and. the other witness. He also stated to Mr. Sutherland at the commencement of the transaction that the deceased was of sound mind, and upon the trial he stated that he believed his mind was sound when this writing was drawn and signed, but that, in his opinion, the deceased had not sufficient mental capacity to make a will, and that he took no conscious active part in the attestation of the document. The facts and circumstances, as detailed by him, clearly contradict his opinion statements that deceased had not sufficient testamentary capacity and took no conscious part in the attestation. As indicated in *Winn v. Itzel,*125 Wis. 19, 103 N. W. 220: “Certainly such testimony is thoroughly impeached by the witness himself.” *Loughney v. Loughney,*87 Wis. 92, 58 N. W. 250. All the other evidence, except that of the experts, points clearly and directly to the one conclusion that the deceased' was possessed of testamentary capacity, and that he consciously, participated in the *373completed execution of the instrument, and thereafter gave express direction for its safe-keeping and custody.

It is urged, however, that the fact of testamentary capacity is sufficiently rebutted hy the opinions of the experts as to his mental incompetency, and hy the facts and circumstances tending to show that the deceased was so weak from sickness that he was in a condition “almost reaching that of profound shock.” We do not find these circumstances and the opinion testimony of sufficient weight to throw any uncertainty upon this fact. The opinions expressed by the experts were predicated on conditions, many of which we have shown did not exist, and they therefore are of slight weight in face of the actual facts upon which the contested issues must be determined. A consideration and study of the evidence leads us to the conclusion that this finding of the trial court is against the clear preponderance of the evidence.

The court also found that the circumstances surrounding the giving of the legacy to *Charles Trieloff*were “such as to call upon him for explanation and a showing that the same was a free, voluntary, and intelligent act of the said deceased, which has not been done.” This determination of the court is preceded hy a recital of facts, stating that the legatee, *Charles*Trieloff, and the deceased were and for a number of years prior to the making of the propounded will had been co-partners in business, and as such a confidential relation had existed between them; that *Trieloff*visited the deceased frequently during his sickness, and did so four times on the day ■of his death; that he had in his possession the several certificates of deposit and the bank book of the deceased; and that nothing is shown suggesting any reason why deceased “should have given said legatee the legacy specified in said instrument.” It is apparent that the trial court regarded these facts and' circumstances as a *prima facie*showing that this legacy was procured hy the-undue influence of *Trieloff.*There is no other evidence on which such an inference can *374rest. If no sncb inference is justifiable, tben *Trieloff*was not called upon to explain and sbow that this bequest was a free and voluntary one by the deceased.

> “The field for the operation of undue influence or fraud being shown, together with satisfactory indications that the operation has taken place, then from that situation springs the presumption of fact that the person charged with the wrongdoing must meet and overcome by showing affirmatively that there was no wrong. A presumption against a person charged does not exist from the mere fact that there is such a charge, but because of facts and circumstances appearing which satisfactorily suggest wrong, and it is not till such facts and circumstances appear that it can properly be said the burden of proof to disprove wrong is on the person charged.” *Small v. Champeny,*102 Wis. 61, 78 N. W. 407.

A consideration of all the evidentiary facts and circumstances material to this finding fails to show or suggest that *Trieloff*did, or attempted to do, anything to induce or persuade the deceased to make a will or to make him a beneficiary, should one be made. All the facts suggested by the court as the basis for such an inference cannot only readily and naturally be explained as in perfect harmony with *Triel-off s*exemption from wrongful conduct in the respect charged, but, when considered in the light of what actually took place, there is an entire absence of any wrongful purpose or the actual doing of any act indicating that he was attempting to influence the deceased in disposing of his property. Considerable stress is laid on the fact that *Trieloff*called on him four times on the day the instrument was drawn and that he held confidential interviews with him. True, he called; but it appears that he did so in response to requests from the deceased and from persons at the house, and there is nothing to show that the act of making a will was considered or spoken of by them, or that *Trieloff*had an opportunity before his last visit, when the will was about to be prepared, to communicate with the deceased concerning the making of a will. So *375far as shown, he first learned of this after the deceased had conferred with Dr. Palmer on the subject and had told him that he wished to leave some of his property to *Trieloff.*The conduct of the deceased when he made this instrument and directed its provisions in *Trieloff s*absence indicates that he was free from all restraint or compulsion and was acting freely, voluntarily, and deliberately.

It is contended that the provisions of the will for the widow and children indicate that he was unduly influenced to deprive them of what he would naturally have bestowed upon them had he acted freely and voluntarily. We are unable to find any sound basis for this contention. He seems to have made such provision for them as in his 'judgment seemed just and proper. This leaves the conclusion that a *prima facie*case of undue influence is shown. against *Charles Trieloff*without support in the evidence, and the court erred in holding that he was called upon to meet and overcome such a showing.

*By the CouH.*— The judgment is reversed, and the cause is remanded with directions that the -court enter judgment admitting the instrument propounded as the will of Herman Muellenschlader to probate, and for further proceedings according to law.