Will of Nachtsheim

164 N.W. 997, 166 Wis. 556, 1918 Wisc. LEXIS 1

• Court: Wisconsin Supreme Court
• Decided: February 5, 1918
• Status: Published

Opinions

The following opinions were filed November 13, 1917:

KeRWIb, J.

Many decisions of this court relating to what •constitutes undue influence sufficient to avoid a will are cited and relied upon by counsel on each side. An examination of these cases as well as others in this court will show that each case rests upon its own particular facts viewed in the light of well settled principles of law. This court in cases relating to will contests on the ground of undue influence has laid down some general rules respecting the elements necessary to exist in establishing undue influence as follows: (1) The opportunity to exercise influence; (2) the disposition to influence and motive therefor; (3) the susceptibility of the subject to influence by the person having the opportunity; and (4) the result indicating the exercise of undue influence by such person. Elliott v. Fisk, 162 Wis. 249, 155 N. W. 110; Ball v. Boston, 153 Wis. 27, 141 N. W. 8.

In Elliott v. Fisk, supra, this court said:

“While it is true that a testator susceptible to undue influence ; an opportunity for the exercise thereof; a disposition: to exercise it; and a result indicating its exercise must he established by clear and satisfactory evidence before a court is justified in setting aside a will, yet the clear establishment of three of these essential elements may with slight additional evidence as to the fourth compel the inference of its existence. This is especially true where the will is not what may be termed a natural one, such as relationship usually dictates.”

A great amount of testimony was offered on both sides- upon the question of undue influence. We shall not prolong this-opinion by a discussion of it. The questions involved as appear from the record are purely questions of fact, and both: the county and circuit courts were in far better position to determine these questions than this court, as has been often said by this and other courts.

There is ample evidence to support all the elements of undue influence, and this court has so held in cases where the evidence of undue influence was no stronger than in the instant case. Elliott v. Fisk, 162 Wis. 249, 155 N. W. 110; Will of Lynch, 163 Wis. 466, 157 N. W. 557; Baker v. Baker, 102 Wis. 226, 78 N. W. 453; Derse's Will, 103 Wis. 108, 79 N. W. 46; Bryant v. Pierce, 95 Wis. 331, 70 N. W. 297; Will of Slinger, 72 Wis. 22, 37 N. W. 236.

Much stress is placed by counsel for respondent upon Ball v. Boston, 153 Wis. 27, 141 N. W. 8. It will be seen, however, upon examination of that case that the controlling facts were quite different from the facts in the instant case, and moreover reversal was put in part at least upon the ground that the lower court did not apply correct rules of law to the facts found.

In view of the repeáted decisions of this court and the es- • tablished rule that the findings of the trial court will not be disturbed unless clearly wrong, we are not able to say that the decision of the court below should be disturbed.

The court below allowed $400 attorney’s fees to the contestants to be paid out of the estate. This is authorized by sec. 4041&, Stats.

By the Court. — Judgment affirmed.