Proceeding to determine which of two documents is the last will of Edward Niesen, deceased, or whether he died intestate. The trial court found in favor of the earlier instrument. The appeal is by devisees who would take only under the other document, and by parties who take, if at all, by an intestacy.
The question here is whether the court's findings of fact have sufficient support in the evidence.
Edward Niesen died in a fire which burned the farmhouse in which he lived and destroyed much of the contents. In a search of the ruins his will was discovered, dated April 29, 1948. The execution of this will appears to be in order and conforms to the statute. No one contends that it was invalid in any respect at the time it was executed. It gave $200 to Niesen's niece Mamie Heinz and $200 to his niece Emma Weiker. The residue was devised and bequeathed to Lucy Kammel and it nominates her executrix.
Edward Niesen employed Attorney L. E. Sheehan to prepare another will at some time during the first three months of 1954. The unexecuted original (or what is at least a draft of such a will) and one copy were found by Mr. Sheehan in his file after Mr. Niesen's death. These drafts are not dated and are not signed by Niesen or by witnesses. They purport to bequeath the farm and $2,000 to the Nicolais, appellants, $500 apiece to Mamie Heinz and Emma Weiker, and the residue to Lucy Kammel, respondent, who is also nominated executrix.
Mr. Sheehan's records show that on March 30, 1954, he gave Niesen a receipt reading: "Received of Edward Niesen Five No/100 Dollars for services in drawing will." A further document, Exhibit 18, is in evidence and reads as follows:
"To Arvel Nicholi and Betty Nicholi, his wife or the survivor of them, who now live in the old Niesen homestead farm at Route 2, Coon Valley, Wisconsin, and who have furnished me with the food I require and with a place to live on said farm and who have furnished my washing and other necessaries, I give and devise the farm known as the old Niesen farm which was my parents' homestead, and on which said Arvel Nicholi and Betty Nicholi now live, and I further give them the sum of $2,000.
"This is part of the will which Edward Niesen requested me to draft this 30th day of March, 1954.
"L. E. Sheehan Attorney-at-Law La Crosse, Wis. "Edward Niesen"
The Nicolais testified that Exhibit 18 was given them on March 30, 1954, by Mr. Edward Niesen in Mr. Sheehan's office and had been in their possession ever since. They claim that on or about March 30, 1954, a lost will, of which there is a copy, was properly executed and became the will of Edward Niesen, thereby revoking the 1948 will. No executed original nor a copy tending to prove the original was executed has ever been found, but the Nicolais contend that there was an executed original which was destroyed by accident in the fire which burned Mr. Niesen and much of his property or which was found and suppressed by Mrs. Kammel. There is no evidence identifying any such will in the debris left by the fire.
Lucy Kammel, respondent, contends first, that there was no execution of such an instrument, and second, if one ever was executed it was revoked, by its intentional destruction by Mr. Niesen.
The two appellant heirs-at-law contend that the 1954 document was properly executed and became the Edward Niesen last will, thereby revoking the 1948 one and thereafter Niesen revoked the 1954 will by intentionally destroying it, thereby dying intestate.
The trial court determined that the 1954 instrument was not executed as a will. Further, it determined that the April 29, 1948, document was so executed and admitted it to probate. The appeal followed.
Further facts will be stated in the opinion.
BROWN, J.
No one testified that he saw Edward Niesen execute the will or that he, himself, acted as witness. A Mr. Wachlin, who was interested in a possible loan on the farm, testified that he inquired from Mr. Niesen whether the Nicolais had a written lease of the farm on which they lived. Mr. Niesen said they had something better and showed to Wachlin a two-page document bearing Niesen's signature and entitled "Last Will and Testament of Edward Niesen." Wachlin said the first paragraph devised the farm to the Nicolais on condition that they would run the farm and keep him. The actual paragraph does not make the devise conditional, but recites those services as already rendered. Mr. Wachlin did not see, or did not remember, whether there were any other names signed to the paper. He said he was not interested in other names. He was shown Exhibit 18 containing the same information about the devise and legacy and signed by Niesen and Sheehan and he would not state and could not recall whether that paper or one just like it was what Niesen showed him rather than a will itself.
Another witness testified that Niesen told him that he had fooled the Nicolais and had never signed the will containing the devise to them.
Neither Mr. Sheehan nor his secretary had any recollection that Mr. Niesen executed the will which Mr. Sheehan prepared for him. Since the original, unexecuted, will remained in Sheehan's file it supports an inference that there was no execution.
The Nicolais stress the attestation clause of the draft which recites that the things necessary to the execution of a will have been done, and they say that from such recitations a presumption arises that these things were done. This contention has no merit until it is established that subscribing witnesses signed the attestation clause.
The court found that the so-called will of March 30, 1954, had not been executed. It found that the will of April 29, 1948 was executed according to law and had not been revoked. It granted probate to that instrument.
We must sustain the trial court. We consider there was a failure of proof of due execution of the 1954 "will," but even if there was sufficient evidence to permit a finding of due execution it is far from being so strong as to compel one. At the most an issue of fact was raised and the trial court's determination is not against the great weight and clear preponderance of the evidence. Therefore, it must stand. Estate of Fuller (1957), 275 Wis. 1, 81 N.W.2d 64.
This leaves the 1948 will as a valid, unrevoked, last will, as found by the court and embodied in the judgment.
There was a great deal of preliminary controversy over the right of Lucy Kammel to propound the 1954 document and later to appear as an objector to it and some space in the appellants' brief and appendix is devoted to it. Inasmuch as the trial court held with the appellants and struck out Kammel's objections no prejudice resulted to them, anyway. Kammel's original petition propounded both the 1954 instrument and the will of 1948 and asked first for the admission of the 1954 one or, in the alternative, for the probate of the 1948 will. We do not find her procedure was improper.
By the Court. — Judgment affirmed.