In re the Last Will & Testament of Wilson

8 Wis. 171

• Court: Wisconsin Supreme Court
• Decided: June 15, 1859
• Status: Published

Opinion

By the Court,

Cole, J.

A careful consideration of the testimony in this case, and more particularly an inspection of the will itself, have led us to the same conclusion as that arrived at by the probate court, which is that the will has been altered in a material part since its execution, and this alteration not being explained, must avoid the instrument. The principle of law has not been controverted by the counsel, who supports the validity of the will, that if there has been a material alteration by a person claiming under it, the will is thereby invalidated. He concedes that this rule of law is well established by many well adjudicated cases, and rests upon the soundest principles of morality and public policy. We only have then to examine the evidence, to see if it shows that the will has been altered.

To our minds, the clearest and most satisfactory proof that the will has been altered, is derived from an examination of the instrument itself The words “ and these articles to be delivered to my friend Henry Durbin, immediately after my decease,” which are written up along the margin and over the top of the will, the page being inverted, and' also the words “Joel Hayman,” in the body of the will, are unquestionably written with different ink, and with a much steadier hand, than the body of the will. It appears that the will was written by the testator himself, a man over seventy years of age. The character of the hand writing is very tremulous and unsteady, such as we would expect in an old person, while as before remarked, the words in the margin and the words “Joel Hayman,” are written with a more steady hand, and a different ink, and, we think, must have been written by a different person. This dissimilarity in the character of the hand writing, and in the color and appearance of the ink, throws the greatest suspicion on the will. The attesting witnesses saw the will, and did not notice the writing on the margin or on the top of the page, a circumstance going strongly to show that this writing was not there when they signed the paper, or they must have observed it. This will was in the custody of Durbin ; he offered it for probate, and he should be prepared to show that the alteration was properly made, and clear up every suspicious circumstance about the instrument This he has not satisfactorily done.

The counsel -who argues in support of the validity of the will, insists that the will bears upon its face incontrovertible evidence of its own authenticity, since, on reading the will without the alteration, the name Henry Durbin first occurs as “the aforesaid Henry Durbin;” thus showing that the writing must have been in the margin in which the name of “ Henry Durbin ” is found, and to which the words “ aforesaid Henry Durbin ” must relate. But we do not see how this explains the great dissimilarity which evidently exists in the character of the writing, and the appearance of the ink. Who wrote the words in the margin ? Where were they written ? This position assumes that they were written by the testator himself, when he wrote the rest of the will; and for the reasons which we have already assigned, and for others, which might be given if necessary, we deem this position untenable.

It follows, from the views we have expressed, that the order of the circuit court, reversing the order of the probate court, must be reversed, and the order of the probate court, refusing to admit the will to probáte, be affirmed.