Winn v. Itzel, 125 Wis. 19. by fraud and undue influence, there was no direct testimony of fraud or undue influence, or of words of abuse or blandishment, but the circumstances under which the deed was actually signed were relied upon as being sufficient to justify a finding of actual fraud, under the rule that, when a person charging fraud and undue influence had proved certain facts, he had made a prima facie case, though he might not have produced any direct evidence of fraudulent acts or words, and might then rest his case, and the defendant must then rebut the inference of fraud so raised by affirmative proof of good faith. Held, that it was error to rule that thereupon the burden of proof shifted to defendant to show the fairness of the transaction, notwithstanding plaintiff had affirmative evidence still in reserve. 10. In such case it was nevertheless incumbent on plaintiff to make his case in the first instance, and to present all the proof which he had and wished to present tending to prove fraud, whether circumstantial or direct. 11. In such case it was the duty of the court, at the close of plaintiff's case, to decide whether a prima facie showing of fraud had been made, if raised by proper motion. 12. In such case, if the trial court held that a prima facie case of fraud had been made, the defendant could either stand upon plaintiff's proofs and challenge their sufficiency on appeal, or he could introduce his own proofs tending to rebut plaintiff's case and establish his innocence. 13. In actions to set aside instruments on the ground of fraud and undue influence it is practically impossible to lay down any exact rule or rules for determining what circumstances, when proved, will raise an inference of fraud. 14. In such cases, in a general way, there must be shown a subject unquestionably susceptible to undue influence, either as the result of old age, mental weakness, or both; also some clear evidence of opportunity and a disposition on the part of the beneficiary to exercise such influence. 15. In such case "opportunity" does not mean mere physical propinquity or possibility of personal contact, but the fact that interviews or personal transactions between the parties were had, followed by the accomplishment of the desired end. 16. In an action where the issues were on the question of whether a deed from a decedent was obtained by fraud and undue influence, under the evidence, stated in the opinion, it is held that, considering a prima facie case of fraud was established, it was fully and fairly met by the testimony of the grantee, and it was error to award judgment setting aside the deed. Winn v. Itzel, 125 Wis. 19. APPEALS from a judgment of the circuit court for Milwaukee county: LAWRENCE W. HALSEY, Circuit Judge. versed. Re This is an action in equity brought by a trustee of certain real property to obtain from the court direction as to his duty with regard to the transfer of the title of said property. The plaintiff, Winn, in June, 1897, was made trustee under a deed of trust executed by Matilda O. Abbey of certain real estate in Milwaukee, and, among other duties, he was required to convey said property to such person or persons as Mrs. Abbey, by instrument in writing or by last will, should appoint. Mrs. Abbey died September 4, 1898, having made the respondents Taylor and Mathews residuary devisees under her last will. The defendant Itzel claimed the title to a certain piece of said real property, known as the Eighth street property, and being a part of the land covered by the trust deed, by virtue of a deed to her claimed to have been executed by Mrs. Abbey two days before her death. The defendants Mathews and Taylor answered by way of cross-complaint, and claimed that the deed to the defendant Itzel was obtained by fraud and undue influence. The defendant Itzel answered, claiming her right under said deed and denying alleged fraud. The defendants O'Keeffe and Harkins were interpleaded as judgment creditors of the defendant Itzel, and they claimed their judgments to be valid liens. The action was tried by the court, and the facts that were undisputed may be stated as follows: Mrs. Matilda O. Abbey, the testatrix, was for many years a resident of Milwaukee, Wisconsin. Her first husband was named Burchard, by whom she had a son, Harvey Burchard, and from whom she received a considerable amount of property. After the death of Burchard she married one Abbey and survived him a considerable number of years. Her son, Harvey, died in 1892, and Mrs. Abbey herself died September 4, 1898, leaving as her nearest relatives the defendant Annie Mathews, a half-sister, and the defendant Taylor, a nephew, Winn v. Itzel, 125 Wis. 19. both of whom lived in the east. At the time of her death Mrs. Abbey was aged and feeble. The trial court found that she was eighty-two years of age, but the testimony is not very definite on this point. Prior to the death of her son, Harvey, one Carl Braunschweiger had been his valet, and after the death of the son Braunschweiger was retained in the employ of Mrs. Abbey as a steward and so remained to Mrs. Abbey's death, looking after the household affairs, employing servants, and paying bills. The defendant Anna Itzel was a music teacher in Milwaukee, and in the summer of 1896 went to live with Mrs. Abbey as a companion, and lived with her until Mrs. Abbey's death. These three people constituted the household, and they remained living in Milwaukee until early in the year 1897, when they moved to Waukegan, Illinois, at first boarding and afterwards keeping house for about a year before Mrs. Abbey's death. Mrs. Abbey's property interests in Milwaukee amounted to about $140,000, including the lot in question in this litigation, which was appraised at $9,000. From 1890 to 1896 Mr. A. B. Geilfuss conducted her business affairs, at which latter date the plaintiff took charge of the same. In June, 1897, Mrs. Abbey made a trust deed conveying all her real and personal estate to the plaintiff, to look after and care for the same, and provide therefrom for Mrs. Abbey during her lifetime, and upon her death to convey and assign the said property and all the proceeds thereof to such person or persons as Mrs. Abbey, by instrument in writing or by last. will, should appoint. In September, 1896, Mrs. Abbey executed her will, in which, among other legacies, she gave $2,000 to Braunschweiger, $1,000 to Anna Itzel, and one fourth of the residue of the estate to the defendant Annie Mathews, and the rest to the defendant Taylor. In June, 1897, she executed a codicil to the will, in which she increased the legacy to Braunschweiger to $3,000, added $1,000 to the legacy of the defendant Anna Itzel, and also gave her a considerable amount of jewelry and household furniture, made a legacy of $3,000 Winn v. Itzel, 125 Wis. 19. to the plaintiff, John E. Winn, and disposed of the rest of her estate practically as before. In the spring of 1898 the plaintiff, Winn, went to Europe and did not return until about September 1st of that year, and upon his return received word that Mrs. Abbey was quite sick in Waukegan. He went to Waukegan on the 1st day of September and found Mrs. Abbey quite ill. He submitted to her his accounts as trustee and returned to Milwaukee. On the following day Mrs. Abbey executed a deed of the property in controversy to the defendant Anna H. Itzel. This deed was signed by her mark and was witnessed by C. T. Heydecker, an attorney at law at Waukegan, Clara D. Pettifoe, a trained nurse and attendant on Mrs. Abbey, and Carl Braunschweiger. The court found, in effect, that Mrs. Abbey was incompetent to execute a deed at the time when the same was signed and that the same was never in fact executed and delivered by her, and that it was the result of fraud and undue influence on the part of the defendant Itzel and said Braunschweiger, acting in confederation, and thereupon declared the same to be void and of no effect, and adjudged that the defendants Mathews and Taylor were entitled to a conveyance of said property from the trustee in the proportions given them by the will, and further adjudged that the defendants Mathews and Taylor recover costs from the defendants Itzel, Harkins, and O'Keeffe. The appellant Anna H. Itzel appealed from the entire judgment. The defendants Harkins and O'Keeffe appealed from that part of the judgment holding them liable for costs. For the appellants there was a brief by McElroy & Eschweiler, attorneys, and J. E. Roehr, of counsel, for Itzel, and E. J. Ludwig, attorney, and McElroy & Eschweiler, of counsel, for O'Keeffe; a separate brief by J. A. Eggen, for Harkins; and oral argument by Mr. F. C. Eschweiler and Mr. Eggen. On the appeal of Harkins there was a brief by Turner, Pease & Turner and Hoyt & Olwell, for the respondents Winn v. Itzel, 125 Wis. 19. Mathews and Taylor; and on the appeal of Itzel and O'Keeffe, by Turner, Pease & Turner for Taylor, and Hoyt, Doe, Umbreit & Olwell for Mathews. There was a separate brief signed by W. J. Turner, for the respondent Taylor. The cause was argued orally by F. M. Hoyt and W. J. Turner. WINSLOW, J. In the present action a deed of valuable real estate, purporting to have been executed by an old and feeble woman upon her deathbed, in favor of her companion, is attacked as obtained by fraud and undue influence. These charges were found true by the trial court and the deed was declared void, and from this judgment the grantee appeals. Before proceeding to the consideration of the merits of the case we shall consider certain questions raised as to the rulings of the trial court upon the admission of evidence. The deed in question bears date on the 2d day of September, 1898. Mrs. Abbey was then very sick and confined to her bed and died two days thereafter. The deed was prepared by Mr. C. T. Heydecker, an attorney residing and practicing at Waukegan, at the request of Miss Itzel and Mr. Braunschweiger. The certificate of acknowledgment certified that Mrs. Abbey acknowledged that she signed, sealed, and delivered the instrument as her free and voluntary act for the uses and purposes therein set forth, and was signed by Mr. Heydecker as notary public. Upon the trial of the action, after the examination of the plaintiff, Winn, Mr. Heydecker was called as a witness and was allowed to testify, against objection, in substance, that Mrs. Abbey did not speak, nor express by look or act any consciousness whatever of the character of the transaction at the time the deed purports to have been executed; that she could not sign her name; and that he wrote it, and Braunschweiger lifted her hand and put it on the pen while he (Heydecker) made the mark. Thus the officer was allowed to falsify his own official certificate, and this ruling is assigned as erroneous. The question has not been directly |