Griffiths v. Cretney, 143 Wis. 143. authenticity of an apparent autograph hold it unnecessary for a mark, which has no individual characteristics, because of the impossibility of authenticating the latter by any but an eye-witness. Howard v. Snelling, 32 Ga. 195; Shiver v. Johnson, supra; Tagiasco v. Molinari's Heirs, supra; Chaffe v. Cupp, supra. The fact urged by appellant that testator could not read or write the English language, qualified by the further facts that he had lived in this country thirty years, served in the Civil War, and was a prosperous farmer of average intelligence, neither prevents, nor in our opinion suffices to overcome, the inference that he executed the will with due understanding of its purport. Walter's Will, 64 Wis. 487, 25 N. W. 538; Arneson's Will, 128 Wis. 112, 115, 107 N. W. 21. Our conclusion is, therefore, that from the evidentiary facts found by the trial court arises prima facie an inference in favor of the ultimate fact that the deceased executed the will as required by law. Such inference, being without contradiction, constitutes a preponderance of evidence and therefore supports the judgment. By the Court.-Judgment affirmed. GRIFFITHS and another, Respondents, vs. CRETNEY and another, imp., Appellants. SAME, Respondents, vs. JONES, imp., Appellant. April 28-May 24, 1910. Equity: Cancellation of instruments: Retaining jurisdiction to award damages: Exchange of property induced by fraud: Mental incapacity: Value of lands: Evidence: Joint wrongdoers: Appeal: Costs: Printing case. 1. Where, in an action to set aside a conveyance of lands on the ground of fraud, it appeared that one of the defendants had title to the lands when plaintiffs demanded a reconveyance, but before the action was commenced had, without plaintiffs' knowl Griffiths v. Cretney, 143 Wis. 143. edge, conveyed to other persons, so that no cancellation and rescission could be awarded, it was proper for the court to retain the action and award damages for the fraud. 2. Evidence in this case tending to show, among other things, impaired mental capacity and lack of business intelligence on the part of plaintiffs and that they reposed trust and confidence in one of the defendants, who had been their adviser and who chiefly brought about the exchange of lands in question, is held to sustain findings that the plaintiffs relied upon false representations as to the value of wild lands taken by them in exchange for their farm and were induced thereby to make the exchange, and that they were incompetent to transact the business and did not fully comprehend it. 3. The preponderance of evidence, including conflicting opinions of witnesses, as to the value of certain wild lands is held to show that at the time in question they were worth $12 per acre, instead of $6 and $8 as found by the trial court. 4. It appearing that two of three defendants who had exchanged lands for plaintiffs' farm were partners dealing in real estate and had induced the third defendant to exchange his farm for an interest in that of the plaintiffs; that he put his farm into the exchange at a fair price and did not participate in or know of the false representations made by the other defendants as to wild lands which they put into the deal and in which he had no interest; and that he afterwards paid his codefendants full consideration for their interest in the plaintiffs' farm, it is held that such third defendant was not a joint wrongdoer with the others so as to be liable for the damages resulting from the fraud. 5. Costs are not allowed in this case for the printing of a case and briefs which violate Suprème Court Rule 6. APPEALS from a judgment of the circuit court for Iowa county: GEORGE CLEMENTSON, Circuit Judge. Reversed. Plaintiffs bring this action alleging that defendants, through misrepresentation and undue influence, fraudulently obtained an exchange of properties on September 12, 1905, and praying for cancellation of their deed of transfer of their farm to the defendants, for a reconveyance thereof to them by the defendants, and for damages in the sum of $1,000. The plaintiffs are farmers who were born and raised on the farm of 193 acres which they acquired from their father Griffiths v. Cretney, 143 Wis. 143. at his death and to which they added 168 acres. They were unmarried, and as partners, under the name of Griffiths Bros., farmed these 361 acres of land. For a period of years they raised blooded stock and ran a thresher, a sawmill, and a shredder. The principal business transactions of the firm were carried on by William T. Griffiths, the elder of the brothers. John at times attended to some of the smaller business dealings of the firm. In 1900 their property was worth about $30,000, consisting of the farm, worth $27,000, $14,600 in the bank, their stock, and personal property. They were then in debt in about the sum of $12,000. The defendants Cretney and Collins are partners and are in business as dealers and brokers in real estate. The defendant Jones is a farmer and dealer in real estate. In 1895 or 1896 William T. Griffiths had an attack of nervous prostration. Morphine was administered to him to relieve him from pain, and he became addicted to its use. In 1905 he was accustomed to take five or six grains of it three times a day. After such nervous attack he was weak and infirm of body and unable to do hard work. There was evidence of the effect of morphine upon him and that he was of much less mental power than he was before his illness; that he had at times wandered from home unconscious of where he was going, unmindful of what was occurring about him; that at times he was in a dreamy state of mind; that he did not remember having paid accounts, and at one time. attempted to pay an account twice. The court, who observed him at the trial and on the witness stand, at the close of the testimony, speaking of his condition, stated: "The effect of the morphine habit upon him is manifest from observing him. The twitching of his hands, the twitching of his face, his constant motion, the closing of his eyes, has been continuously apparent while he has been in court. A casual observer would assume that he was incapable of doing anything that required intellectual effort. But upon the witness stand he has seemed quite bright, and much of his VOL. 143-10 Griffiths v. Cretney, 143 Wis. 143. talk has been connected, and his memory in reference to many transactions has been good. On the whole, however, his testimony has not been satisfactory, in this: he has not been able to give a lucid account of any particular transac tion from beginning to end. His own testimony shows, and I do not doubt it, that when he is not under the influence of morphine he is listless and incapable of effort, and under the influence of morphine he feels much better and when interested in a subject seems bright-is bright and talks intelligently. The testimony in this case convinces me, coupled with the observation of the man, that in this business transaction now under consideration he did not have a clear comprehension of the situation." John Griffiths, the other plaintiff, as above stated, had but little to do with the management of the large and important business of the firm. The evidence shows that he cared for the stock, attended to the running of the thresher, and performed manual labor connected with their business. In 1898 he lost an arm in a shredder, and on this account was thereafter less active as a worker. It is clear from the evidence that their business was managed by his brother. The court concluded as to him thus: "I am satisfied from the testimony in this case and from my observation of the parties that John Griffiths is a man of hardly ordinary business intelligence a man who has done very little of the business of the Griffiths Bros." The plaintiff William T. Griffiths testified that he became intimate in a business way with the defendant Collins in 1903. At that time they went together to Bruce, Wisconsin, and together purchased some property. This property was afterwards sold by Collins, and most of the proceeds belonging to the plaintiffs were paid by Collins on their indebtedThis plaintiff also testified that the plaintiffs had been partners with the defendant Collins in the several purchases of property and that they had not as yet received any of the profits from the sale of these properties. One transaction in land in the northern part of the state had netted $200 in com ness. Griffiths v. Cretney, 143 Wis. 143. mission which was still wholly retained by Collins. Plaintiffs obtained a land contract on some lands in Canada as partners with Collins on the latter's recommendation, and he obtained commissions which he retains. This witness also testified that they had purchased a farm of about 200 acres in Rusk county because Collins recommended and advised him to do so. The defendant Collins denies that there ever was a partnership between him and the plaintiffs except as to the property at Bruce, Wisconsin. At the time of the exchanges of properties in question plaintiff's farm was listed with Collins and Cretney for sale. The evidence tends to show that after 1900 the business operations of the plaintiffs were not successful, and that at the time the transactions took place between them and the defendants they had become financially embarrassed. In September, 1905, the incumbrance upon their farm had become $15,500; their money in the bank had been spent and they were in debt for some machinery; a creditor had obtained judgment for some $700 for feed furnished to them and had seized upon execution and taken from their farm blooded stock worth $3,000 or $4,000. William T. Griffiths had tried to borrow money to meet their obligations, but had been unsuccessful. The condition of the plaintiffs was known to the defendants. On the morning of September 12, 1905, the plaintiff William T. Griffiths had gone to see the creditor who had taken some of their stock on execution to satisfy his judgment against the plaintiffs. Meanwhile the defendants had been. talking with the plaintiff John Griffiths regarding this exchange of properties and arranged with him to meet with the plaintiff William T. Griffiths after dinner, at a bank in the city of Dodgeville. They so met, and late in the afternoon an agreement was reached for a transfer of properties. Plaintiffs transferred by deed their farm at the agreed price of $27,000 and were to receive an equivalent for the value |