In re Will of Hoppe

78 N.W. 183, 102 Wis. 54, 1899 Wisc. LEXIS 18

• Court: Wisconsin Supreme Court
• Decided: January 31, 1899
• Status: Published

Opinion

Dodge, J.

1. William Hoppe, the son, to whom no bequest was made, was a competent subscribing witness. Secs. 2284, 2285, R. S. 1818, evidently contemplate attestation of wills by heirs and others interested in the estate, provided they are not beneficiaries under the will in excess of their rights independent of it. Beneficial interest under the -will is the test. In re Lyon's Will, 96 Wis. 339.

He was not incompetent under sec. 4069. True, he was a party. The legatees and devisees are parties on the one side, and the heirs at law the parties on the other side, in probate proceedings. In re Valentine's Will, 93 Wis. 45, 51, quoting Hall v. Allen, 31 Wis. 691. He was, however, called by the proponents of the will — the adverse parties, — the only ones who had any right to object to his competency. It is always in the discretion of the adverse party to waive the protection afforded by sec. 4069, either by refraining from objection, or by offering testimony of another witness; and he may equally waive it by calling his opponent and examining him as a witness to personal transactions. Becker v. Foster, 64 Ill. App. 192; Taylor v. Ainsworth, 49 Neb. 696.

2. The finding of the court, either as to mental competency, or as to absence of undue influence, is not against tbe preponderance of the evidence. Even should the testimony of the son William Hoppe be not considered, there would remain sufficient evidence to support the findings.

The taxable costs of both parties should be paid out of the estate.

By the Court. — Judgment affirmed.

Baedeen, J., took no part.