Sherwood v. Redfield, 171 Wis. 91. there is a judgment with a number of provisions, some affecting one party and some another, some of which could be reversed while others could be affirmed. In such case it may well be that notice of entry of judgment should be given by each party having a separate interest to protect (although we do not decide the point now), but no such considerations are present here. There is here but a single judgment, and a single proposition in dispute. On one side of that proposition stands the appellant insisting on reversal, on the other side stand the Commission and the claimant insisting on affirmance. The statute (sec. 3042) limits the time to thirty days from the date of the service "by either party upon the other" of the notice of entry. We hold that in the case of a single indivisible judgment like the present in favor of two litigants, a notice served by one of them upon the adverse party is to all intents and purposes a notice served by one party upon the other, and sets the thirty-day period running in favor of both. Any other construction would lead to absurd results. Take the present case, for instance. Suppose the appellant had allowed the thirty-day period to pass by and served no notice of appeal on the Commission, but afterward concluded to serve notice of appeal on the claimant. Under. the contention of the appellant he could do so and prosecute his appeal to a judgment of reversal, and the situation would then be that there would be no award so far as the claimant is concerned, but there would be a robust and full-grown award so far as the Commission is concerned, which never could be affected because the time for appealing had expired. We have found little authority which throws any light on the subject and have preferred to decide the question upon the evident intent of the statute. By the Court.-Appeal dismissed without costs. A motion for a rehearing was denied, without costs, on March 9, 1920. Will of Keenan, 171 Wis. 94. WILL OF KEENAN: HAYDEN, Appellant, vs. Nuzuм and others, Respondents. January 13-March 9, 1920. Wills: Testamentary capacity: Evidence: Charities: Trust providing free medical dispensary: Certainty as to beneficiaries: Trial: Advisory verdict: Withdrawing issue from jury: New trial: Testimony which would not change result: Appeal: Harmless error: Excluding cumulative evidence: Error in instructions on advisory verdict. 1. In a proceeding for the probate of the will of an aged widow, the evidence is held to sustain the conclusion of the court that testatrix was of sound and disposing mind when she executed the will and the codicils attached thereto. 2. The verdict of the jury in this case being advisory only, the court was not bound by it, and could change the answers of the jury to special questions when it found they were not supported by the preponderance of the evidence, and was not required to submit the issues of fact to another jury. 3. Since the questions litigated were ultimately decided by the court contrary to the verdict of the jury, alleged errors in instructions need not be considered. 4. Where there was much testimony of the same nature by persons having had personal transactions with testatrix, the exclusion of the testimony of a witness as to the loss of mind of testatrix and her inability to understand and comprehend ordinary details concerning business and property was not prejudicial. 5. There being no evidence to sustain the claim that the will was the result of undue influence, the court properly withdrew the inquiry on this issue from the jury. 6. Excluded testimony and newly discovered testimony bearing on the testamentary capacity of testatrix are held not such as to call for a different finding on the subject. 7. The residuary clause of the will giving the residue to trustees who were to establish and carry on one or more free medical dispensaries, etc., is not subject to the, objection that it was uncertain as to beneficiaries, contradictory in terms, and conferred on the trustees powers in conflict with the law, so as to remove them from the supervision and control of the courts. APPEAL from a judgment of the circuit court for Milwaukee county: W. J. TURNER, Circuit Judge. Affirmed. Will of Keenan, 171 Wis. 94. This is an appeal by Mortimer M. Hayden, contestant of the proposed will of Antoinette A. Keenan, from a judgment affirming a judgment of the county court of Milwaukee county admitting to probate the alleged will, with two codicils, of the above-named testatrix. On July 25, 1915, a petition for the probate of this will and codicils was presented to the county court by R. Franklin Nuzum, who is named as executor by the first codicil. Mortimer M. Hayden filed objection to the probate of the alleged will upon the following grounds: (1) That Mrs. Keenan had not testamentary capacity to make the will and codicils when they were executed; (2) that the execution of the will and codicils was procured by undue influence exerted by Nathan Pereles, Jr. On the trial the contestant also objected to the probate of the will upon the grounds that the provisions attempting to create a trust are void and hence the whole will is invalid. The will was probated in the county court without a trial of the issues raised by the objections to its probate. Mrs. Keenan is the widow of Mathew Keenan, who had resided in Milwaukee for many years and died there in 1898. He died intestate and left no children. Mrs. Keenan as his sole heir inherited his estate, which was valued at $276,513.24. When Mrs. Keenan died the estate had increased in value to over $403,000. Mrs. Keenan was about ninety years of age when she died. Her heirs at law consisted of a brother, who died before the trial in the circuit court, nephews, nieces, grandnephews and grandnieces, most of whom lived at long distances from Milwaukee. She manifested a high regard and respect for her husband, and after his death managed the estate she inherited from him through agents and controlled its investment and use up to the time of her death. During her widowhood she manifested a desire and expressed an intent to devote the estate she and her husband had accumulated to perpetuate his memory in the form of a charitable bequest. From the Will of Keenan, 171 Wis. 94. time of her husband's death in 1898 to 1907 she gave her business affairs close personal attention. In 1907 she suffered a severe illness which impaired her physical capacity to an extent that she was then dependent on others to assist her in her business matters and thereafter required the attendance and service of others to provide her with bodily comforts. She continued to participate in the control of her estate and in the investment and expenditure of her moneys. She maintained her membership in church and club organizations and contributed to religious and charitable organizations in which she was interested. In her personal characteristics she was domineering and critical of those about her or in her service; she was acquisitive in money matters to an extent that made her penurious and avaricious, except on occasions when she gave to public benevolences in which she had a personal interest. In her intercourse with persons about her during the latter part of her life she was irritable, cross, and subject to fits of violent anger without seeming grounds for provocation. But she maintained her business and household relations with practically the same persons during her widowhood and persisted in retaining them as trusted agents, counselors, and friends. After 1907 she was unable to leave her bed or walk about the house without assistance, and was at times confined to her bed for periods of days and was physically weaker than she had been before; her mental powers had grown weaker as a result of her loss of physical strength and health. She came of a family who lived to an extreme old age, but who in their later years suffered from mental breakdown and insanity. Some years before she made this will she showed that she was subject to illusions which manifested themselves in such ways as seeing decorations on a neighbor's house when there were none, hearing birds sing in winter when there were no birds about, and by steadily refusing to eat fruit given her by her brother because it might be poisonous. On some occasions she Will of Keenan, 171 Wis. 94. manifested a suspicion concerning the honesty of her trusted female attendant. These acts and conduct did not persist for any length of time nor show a constant condition of mind, and when they passed her normal mental processes resumed control and enabled her to continue in control of her property up to the time of her death. Mrs. Keenan made several wills before the one involved here. Some of them were executed prior to 1911; the contents of these is not known. In 1911 she executed one drawn by T. J. Pereles at her direction, in which she made similar bequests to relatives and to religious and charitable institutions as in this will, and gave the residue, which constituted the greater part of her estate, to the Wisconsin College of Physicians and Surgeons of Milwaukee, Wisconsin, to be used by it in carrying on the work of its free dispensaries in Milwaukee. It appears that Mrs. Keenan was informed by Miss Yorgey, who attended to her domestic and personal affairs under her direction, that this College of Physicians and Surgeons had gone out of existence and had transferred its property to Marquette University. At Miss Yorgey's earnest solicitation Mrs. Keenan requested an interview with Nathan Pereles, Jr., who called at her home in the early part of 1913, bringing with him the will of 1911. This was his first business interview with the deceased. He had known her for many years when his father acted as her legal adviser. At this interview the will of 1911 was read to her in detail; she indicated what changes were to be made in some of the personal bequests, and directed that the residue be given as a fund for the care of the sick, and asked him to draw up a will embodying her suggestions. Mr. Pereles made a draft of the residuary clause, which gave the residue of her estate for the relief of persons afflicted with tuberculosis, and sent it to her house with a letter under date of February 13, 1913, addressed to her as follows: "Dear Mrs. Keenan: Inclosed you will find draft of the VOL. 171-4 |