Will of Carroll

Oetost, J.

The original will need not be returned to the circuit court on the appeal. The statute provides only for “a certified copy of the record and proceedings.” E. S., sec. 4033. It might be proper for the county court to transmit to the circuit court, as a part of the return, the original will, when *440 objections to its validity are predicated upon tbe manner of its execution, and the inspection of the original is necessary. In re Wilson, 8 Wis., 172 . But this was not such a case.

It appears from the record returned to this court, that all of the issues upon which the contest of the probate was tried and determined in the county court, were, by the order of the circuit court, submitted to a jury, but upon the trial the court said to the parties: “ You may confine your testimony to the questions of soundness of mind and undue influence. The others will be for the court.” This was a substantial modification of the order of submission, if not a revocation of it, and a new order informally made.

When the testimony had all been given, the counsel of the proponent suggested to the court that there was no testimony whatever to show that the testator was of unsound mind, or made his will under undue influence, to be submitted to the jury; and the circuit court so held, and ruled that the whole question be taken from the jury, and thereupon found, as a question of law upon the findings of fact, that the will was entitled to probate, and the order of the county court to that effect was affirmed.

This disposition, of the matter by the court was tantamount to a formal revocation of all orders of' submission of any of the issues to a j ury, and was clearly within the power and discretion of the court. Submitting special issues to a jury in such a case “is strictly analogous to the course pursued in courts of chancery when a feigned issue is awarded,” and “is subject to the discretion of the court.” “The court may, if it sees fit, determine all questions of fact, as well as 'of law, without the intervention of a jury;” and the verdict, when taken, is not conclusive and binding upon the judgment of the court, and is merely advisory, and may be entirely disregarded by the court in making its own findings of the facts, if the court, in its discretion, deems best to do so. R. S., secs. 2843, 2844. The statute authorizing such a submission, the analo *441 gous practice of courts of chancery, and the decision of this court in In re Jackman's Will, 26 Wis., 104 , fully confirm this view of the question. ' We find no error, therefore, in the course taken by the circuit court in ruling that there was no evidence to go to the jury upon the issues, and that the contestant had utterly failed in her proofs, and in discharging the jury from the case.

The remaining questions are those of fact: "Was the will duly and properly executed, and freely and voluntarily, and without undue influence? The evidence tending to prove the negative of these questions is very slight, if there was any at all; and, on the other hand, the evidence tending to establish the affirmative is clear, positive and satisfactory. Thomas 0. Martin, who drew the will and was one of the witnesses to its execution, was and is a gentleman of intelligence, and of un-impeached character and credibility. His testimony is clear and explicit, that the request to him to draw the will came directly from the testator while in the possession of all of his mental faculties unimpaired; that the testator, gave directions as to the drawing of his will, unprompted by any one; and that he, Martin, made a memorandum of such directions and drew the will according thereto, read the will to the testator, and, in the presence and hearing of the other witness, saw the testator make his mark within his signature thereto, and took charge of the will when executed. This evidence was substantially the same as to both wills, and the testimony of the other witness, Cornelius McMahon, was substantially the same. It is true that McMahon stated that he could not tell which was the first will or the last, but he was certain that he witnessed the execution of both. The testator was old and feeble, but his testamentary capacity was abundantly proved by the testimony of both these witnesses, as well as that of the Hon, Wm. Blair, who had at that time the very.best means of knowing it.

*442 The evidence tending to show undue influence comes partly from the contestant, a daughter of the testator, and consists of certain casual remarks made 'by the testator that he should make, or had made, certain provisions in her behalf, or which encouraged her to think that he would do so or had done so. This witness, however, testified that the testator informed her at one time that he had made his will, but he did not intimate what it contained, and she did not inquire. The other facts bearing on this question were, that -William Carroll, the son of the testator, and who is the principal legatee of the will, had for a long time lived with the testator, and had much to do with the management of his property, and had great influence with him; and that Mr. Martin, who drew and witnessed the will, had once been a partner with William in some kind of business, and was his special friend. But there was not a particle of proof that either William or Martin ever dictated, counseled, advised or directly influenced the testator to make such a disposition of his property; but even if they had done so, unless such influence in some degree destroyed the free agency of the testator, it would not be undue influence. “ It is not enough that the testator is dissuaded by solicitations or argument from disposing of his property as he had previously intended; he may yield to the persuasions of affection or attachment, and allow their sway to be exerted over his mind; and in neither of these cases would the law regard the influence as undue. To amount to this, it must be equivalent to moral coercion; it must constrain the subject to do what is against his will, but which, from fear, the desire of peace, or some other feeling, he is unable to resist; and when this is so, the act which is the result of that influence is vitiated.” This is the language of one of the many authorities cited and approved by Mr. Justice Cole in the Jackman Will Case, supra, whose opinion in that case is so full, able and exhaustive on this question that further reference to authorities here is unneces *443 sary. Giving the evidence in this case all possible weight, it falls infinitely short of this standard in establishing the fact of undue influence.

Holding, as we do; that there was no legal ground for resisting the probate of this will, and scarcely any probable cause for such resistance, and that such appeals ought not to be encouraged by the allowance of costs out of the estate, yet, in tender consideration of the evident good faith of the contestant, and of her firm belief that the will of her father had been unduly influenced by her brother William, and of her painful disappointment in not realizing her expectations, we think her taxable costs in this court may properly be paid out of the estate.

By the Gowf.— The judgment of the circuit court is affirmed; the taxable costs in this court to be paid out of the estate of Patrick Carroll, deceased.