(concurring). By an entirely different process of reasoning I have finally reached the same conclusion as that stated by Mr. Justice Bobinson, who is joined by Justices Holt and Millwee. Since my vote is necessary to make the Constitutional requirement of four Justices voting for the same result, I think it incumbent on me to state my course of reasoning.
I. Mental Capacity Of Mrs. Alice Love. The evidence convinces me that — absent any fraud or undue influence ■ — • Mrs. Alice Love was mentally capable of executing a will at any time from May 30th to June 27th. Neither her grief, use of drugs, age, or anything of that kind, impaired her mental faculties so as to prevent her from executing a will if she was at such time free from fraud and undue influence. The evidence convinces me: (a) that Mrs. Alice Love’s will of May 30th was her free and voluntary act without any undue influence or fraud of any kind; (b) that when she executed the instrument of June 1, 1953, she was under the undue influence of her daughter-in-law; and (c) that Mrs. Alice Love was a victim of fraud when she executed the will of June 27th.
II. The Fraud In The Will Of June 27th. This is a most serious charge, but I am convinced of the correctness of my position. After the death of her only son, George, Mrs. Alice Love was anxious to let her estate go to the educational enterprise that he favored. Iii her attempted will of June 24th she said: “If any of estate is left then it shall he used to promote my son’s education proposition. . . Mrs. Elaine Love knew of Mrs. Alice Love’s desire that her estate go to the “education proposition.” On June 8th Mrs. Alice Love wrote Mrs. Elaine Love: “When you come bring me lots of data of George’s instructional. ... I thought Vol Lindsey would be interested and I would like to know more myself.” Again Mrs. Love wrote her daughter-in-law: “I don’t remember much of will either — only he didn’t put in that trust clause”.1 In another letter, Mrs. Love wrote her daughter-in-law: “I wonder if that will is good even if William scratched some of the school trust;” and in another letter Mrs. Alice Love wrote her daughter-in-law: “Have your lawyer make us a will . . . and give name and object of George’s project.” The foregoing excerpts — and there is much other testimony to like effect — show that Mrs. Alice Love was interested in the “education proposition” that her son George had started.
But does the will of June 27th accomplish what Mrs. Alice Love wanted? Does it give her estate to the “educational proposition?” The answer to these questions is in the negative. The June 27th will leaves her estate to the George R. Love Trust instead of to the George R. Love Educational Fund; and the fraud consists in making Mrs. Alice Love believe that the George R. Love Trust was in fact the George R. Love Educational Fund. The George R. Love will was never shown to Mrs. Alice Love.2 She was led to believe that the “George R. Love Trust,” as mentioned in her will of June 27th, was the Education Fund ‘which her son had established in his will. In truth and in fact, the ‘ ‘ George R. Love Trust ’ ’ was vastly different.
The George R. Love will introduced in evidence in this case shows that he set up two trust funds. The first was the “Elaine Love Trust,” which consisted of a large portion of his estate. The second was the “George R. Love Trust” and it provided: (a) that Elaine Love should receive the entire annual net income of the George R. Love Trust as long as she lived; (b) that after her death the net income of the George R. Love Trust would go to Mrs. Alice Love and to Mrs. Elaine Love’s mother, Christiana Lundblad, and to Mrs. Elaine Love’s father, Oscar Lundblad, as long as any of them lived; and (c) that, upon the death of Mrs. Elaine Love and the parents of George R. Love and the parents of Mrs. Elaine Love, the Trustees would transfer the residue of the “George R. Love Trust” to the “George R. Love Educational Fund,” which was to he administered by the Board of Regents of the State of Wisconsin. In short, the will that was drawn and presented to Mrs. Alice Love on June 27th gave all the income of her estate to Elaine Love aiid Elaine Love’s parents as long as any of them lived and then the residue of Mrs. Alice Love’s estate would go to the George R. Love Educational Fund.
Mrs. Alice Love was led to believe that when she executed her attempted will of June 27th her estate was going' to the George R. Love Educational Fund and certainly not to Mrs. Elaine Love’s parents. The actual information was withheld from her, and so she executed an instrument on representations which amounted to fraud. Fraud vitiates everything it touches. In 57 Am. Jur. 267, in discussing fraud as an independent ground of will contest, the holdings of the many cases are summarized in this language:
“A will procured by fraud or deceit is void, except where there has been a valid re-execution or republication of the will. Fraud in the sense of deceit is a ground of contest separate and distinct from that of undue influenee. To make a case of undue influence, the free agency of the testator must be shown to have been destroyed; but to establish a ground of contest based on fraud, the free agency of the testator need not be shown to have been destroyed. Fraud is present to invalidate the will if by misrepresentations and deception the testator is led into making a will different from what he would have made but for the misrepresentation and deception. ’3
So I conclude that the will of June 27th was void because of fraud, even if the language in the instrument was sufficient to incorporate by reference the provisions of the will of George R. Love. It is unnecessary for me to dwell on this matter of incorporation by reference.
III. Directive On Remand. This is the point that has given me most serious concern. Justice Robinson’s opinion concludes with this directive:
"The judgment is reversed with directions to set aside probate of the June 27th will and to admit to probate the will of May 30th.”
I have wondered if the May 30th will was not destroyed sufficiently to constitute revocation; but I have concluded that the appellees have nothing to gain on that score, so this question can be answered in the negative. The will of May 30th was proved as validly executed. The will of June 1st fails because it was executed under the undue influence of Mrs. Elaine Love. The will of June 24th was never proved by the attesting witnesses. In the oral argument before this Court I repeatedly questioned counsel for appellees as to why no effort was made to prove this June 24th will as an alternative to the June 27th will. I received no satisfactory answers. The fact remains that one of the attesting witnesses of the June 24th will never testified in the case and the other attesting witness was not interrogated as to the facts surrounding the attestation of the June 24th will. The will of June 27th fails because of fraud.
In the light of all the above, the will of May 30th remains as the last valid will of Mrs. Alice Love. In the Trial Court the issue was sharply drawn between the May 30th will and the June 27th will; and a transcript containing over 1,000 pages is before us in this case. The printed abstracts and briefs in this Court contain 1131 pages, besides typewritten briefs agreed to be furnished at the time of the argument here. To remand the case “for further development” would be wrong, in view of the full development that has already been made. Therefore I concur with the directive on remand, as contained in Mr. Justice Robinson Is opinion.
This evidently referred to the fact that Mr. Vol Lindsey had stated that he didn’t know enough about the George R. Love Educational Fund to incorporate its provisions in the will.
In the oral argument before this Court one of the three attorneys who spoke for the appellees said that Mrs. Alice Love never saw her son’s will and that she would not have understood it if she had seen it. Furthermore, Mrs. Elaine Love testified on Tr. 931: “Q. Now, Mrs. Love, didn’t you feel that sometime, even when you came down here on the 27th of June that it would he a most nice favor, an expression of love and affection, for you to take the will of her only son and read it to her, paragraph by paragraph, didn’t you feel that you should have done that? Didn’t you? A. No, sir, I didn’t, Mr. Duty. Q. She never saw a copy of it, did she? A. No, sir.”
There are annotations in 28 A. L. R. 787 and 92 A. L. R. 790 containing the cases from which the quoted rules above have been formulated.