I am not in accord with the opinion of the Chief Justice.
The evidence is persuasive that plaintiff was to have the house and furnishings by will and was content therewith, until she was informed that payment of debts of the deceased came ahead of her devise.
Plaintiff and her mother presented the will for probate and, upon hearing, it was admitted to probate.
The executor of the estate testified:
"Apart from the home and contents I have not found enough property in the Joseph Davis estate to pay the debts which have now been filed against it."
Mr. Davis died April 23, 1933. The will was executed October 21, 1932.
The attorney who drew the will testified:
"Mr. Davis said he wanted me to draw his will and I had, or received then, a piece of paper with a pencil and he told me what disposition he wished made of his property. Miss Zack was present during the entire time and aided him in giving me the names and addresses of the various several beneficiaries. In the course of that he said that he wanted to leave to her the house and contents. * * * I *Page 94 drew the will and went back there to his residence the second day afterwards with the will already drawn and ready for execution. I had the original and two carbon copies of the will as drawn. I gave one to him, one to her and read the third. I read it through as it was executed, including 'after the payment of my just debts and funeral expenses;' everything in the will from start to finish. As I started to read it I said to him, 'If there is anything here which isn't now just the way you want it, stop me as I read it over; do not wait until I get through; and if necessary the will will be redrawn, for I want to have it express your present wishes as to the disposition of your property.' When I finished reading it all through he said, 'I think that is all right.' He said to her, 'Wasn't that it?' and she said, 'It is exactly the way you told Mr. Waples when he was here.' * * * Miss Zack did not make any claim or say anything to the effect that the house or contents were already hers. There was no claim made by her at that time that she owned the house. Mr. Davis did not say anything to me in her presence to the effect that she owned the house or its contents."
Plaintiff testified that she was not present when the will was discussed or when it was executed.
I think Mr. Davis at one time intended to give plaintiff a deed but, after talking with the attorney from Milwaukee, concluded to devise the property by will.
I am of the opinion that plaintiff must take under the will and may not have specific performance of the alleged contract and consequent exclusion of creditors of the deceased.
The decree should be reversed and the bill dismissed, with costs to defendant.
NORTH, FEAD, and BUSHNELL, JJ., concurred with WIEST, J. *Page 95