Wells v. Chase

105 N.W. 799, 126 Wis. 202, 1905 Wisc. LEXIS 252

• Court: Wisconsin Supreme Court
• Decided: November 14, 1905
• Status: Published

Opinion

KeRwist, J.

1. Objection was made to the testimony of Marcia Wells, proponent, and May Freeman, as to declara■tions of the testatrix, and their testimony admitted over such objection; and this, it is claimed, was error, on the ground that the witnesses were interested and therefore their testimony not admissible, under sec. 4069, Stats. 1898. But the objection was to the competency of the evidence, and not to the competency of the witnesses to testify. The objection, ■therefore, was not sufficient to exclude the evidence. McCormick v. Herndon, 67 Wis. 648, 31 N. W. 303.

The most important assignment of error concerning the admission of evidence is that respecting the admission of the reporter’s notes of the testimony of Mary Wells and May Freeman, taken upon the former trial. Counsel for respondent argues at length the question of whether the testimony of these witnesses produced upon the former trial was competent, they being nonresidents of the state at the time of the last trial; but it becomes entirely unnecessary to consider this question, since counsel failed to offer proper proof of the testimony taken on the former trial. He produced the reporter and proved by him that he took the testimony on the first trial. He testified: “This is a correct copy, made by myself, of my notes of the testimony of Mary Wells, compared by myself.” ProjDonent then offered in evidence “the original copy of the minutes of the reporter, pages 11, 12, 13, and 14, which in-cludes the testimony of Mary Wells.” This was objected to as incompetent, irrelevant, and immaterial, and the court reserved its ruling, to which the contestant excepted. Eespect-ung the testimony of May Freeman, the official stenographer was called and testified: “That copy, made by myself, is a ■correct copy of the minutes of the court as taken by me on the former trial.” The testimony of May Freeman was, upon this proof, offered in evidence and admitted under the contestant’s objection that the same was incompetent, irrelevant, and immaterial. It is clear that this evidence was not admissible upon the proof made. Sec. 4141, Stats. 1898, pro-rides that the minutes of evidence and proceedings, or of any specific part thereof, on the trial of an action or proceeding, taken by the official phonographic reporter of the court, being certified by such reporter to be a true and correct transcription in longhand of all the testimony on the trial, or of a particular witness, carefully compared by him with his original notes, and to be a •correct statement of the evidence and proceedings had on such trial so purporting to be taken and transcribed, shall be received in evidence with the same effect as if such reporter were present and testified to the facts so certified. It does not appear that this statute was complied with. The evidence offered was not certified to by such reporter, as required by this statute, nor was proof made of tbe facts required to be so certified. It follows, therefore, that tbe testimony of.lVIary Wells “and Hay Ereeman, taken on tbe first trial, was improperly admitted.

2. Tbe controlling question upon tbis appeal, and tbe one principally discussed by counsel on both sides, is tbe question of residence of tbe testatrix. Tbe court below found that she was, at tbe time of her death, a resident of tbe city of Neenab, and after a careful examination of tbe testimony we are satisfied that there is ample competent testimony in tbe case to-support tbe findings. Aside from tbe testimony of Mary Wells and May Ereeman, improperly admitted, there is competent, credible testimony to tbe effect that prior to 1881 tbe testatrix_had lived for upwards of eighteen years at Neenab, and, when she left Appleton, she intended to establish her residence at Neenab, and actually located there and remained about two months, during which time she sought a permanent place of residence, thereafter living with her brother at Eond du Lac a short time, and then taking a trip to California, always asserting that Neenab was her residence and tbe place to which she expected to return. In her will and other written documents she referred to Neenab as her place of residence. She also bad her burial lot there, and was a member of tbe church at Neenab. Shortly after leaving Appleton, and while at Neenab, she said Neenab was her home, her heart turned to Neenab, there her dead were buried, and there she preferred to live tbe remainder of her life, and be laid at rest by tbe side of her loved ones. After leaving Appleton and in October, 1903, she joined tbe'cburcb at Neenab, and gave as her reason for so doing that she felt at home there and wanted to have her membership where she felt at home. In tbe fall of 1902 she stated that she lived at Neenab, and signed and swore to a petition describing her residence as Neenab. ' Tbe facts found by tbe court below on tbe question of residence clearly establish that tbe testatrix’s residence was at'Neenah. It cannot be said that these findings are so clearly against tbe preponderance of tbe evidence as to warrant tbis court in disturbing them.

3. On tbe question whether tbe will was contingent upon tbe death of said Lucy A. Smith on her journey from California, little need be said. Tbis point was not pressed by counsel, either in their brief or upon oral argument, and we assume it has been .abandoned. It is not necessary to consider tbe effect of tbis provision, because tbe testatrix’s home being Neenah, and having died at Eond du Lac before arriving at Neenah, she died on her journey, within the contemplation of this provision 'of the will. However, had she died after arriving home, there is abundance of authority to the effect that such provision would not defeat the will. ,

Other errors assigned we do not deem of sufficient importance to merit special consideration, and, there being sufficient competent evidence to support the findings of the court below, the judgment must be affirmed.

By the Gourt. — Judgment affirmed.