¶1 {dissenting). I think that upon the full and very fair statement of the evidence given in the opinion of the court the judgment so far as it denies probate to the will propounded by Dr. Patterson should be affirmed, in view of the familiar fact that undue influence can seldom if ever be proved by direct evidence, and the rule of Will of Stanley, 226 Wis. 354, 276 N. W. 353, which is stated in Syllabus 1, as follows:
“The four elements necessary to establish undue influence in the making of a will are a person unquestionably subject to undue influence, another’s opportunity to exercise such influence and effect the wrongful purpose, a disposition to influence unduly for the purpose of procuring an improper favor, and a result clearly appearing to be the effect of such supposed influence; and where three of the elements are satisfactorily proven, very little evidence of the fourth is required.”
¶2 That Mrs. Faulks was subject to undue influence is clear from the readiness with which on four occasions she let Dr. *369 Patterson have money, aggregating $14,700, without any security except a mortgage of $4,000, which she afterwards satisfied, all without any reason or excuse, but what the trial court was justified by the evidence in inferring to be a silly infatuation for her “dear Doctor.” The opportunity of the Doctor to exercise undue influence is plain. The Doctor’s disposition to exercise such influence to secure improper favor is manifest from his successive applications for money and his taking Mrs. Faulks to the register of deeds’ office for her to satisfy the $4,000 mortgage. The legacy to the Doctor is clearly such as to be effected by undue influence if such influence was in fact exercised. The situation was therefore such that only “very little evidence” was necessary to establish to the satisfaction of the trial judge that the Doctor exercised undue influence, and the circumstances, in my opinion, afford the quantum of evidence essential to justify that conclusion. The Doctor’s performance of service outside and beyond the calls of duty might justify the bestowing of a medal, but the bestowal of $14,700, to say nothing of $40,000 or more, can hardly be accounted for except by inference that his such service was rendered with the purpose of securing benefactions as a result of it. The Doctor knew of the woman’s wealth, and after getting the first $1,100 from her he knew that she was an “easy mark.” The conclusion that he took advantage of the confidential relation that exists between physician and patient to induce the manifold favors can hardly be avoided. The Doctor clearly did not take his patient up in an airplane for her health. That he did this for his own rather than her good, went with her to Yellowstone park, gar^e her two hundred forty-nine days hospitalization, paid for an eye operation which he himself was unable to perform, and made countless unnecessary calls, all beyond the requirements of professional duty and his contract to render her professional service during her life, and poisoned her mind against Mr. Jensen, all as *370 means of influencing benefactions to himself, was not an unreasonable inference for the trial judge to draw.
¶3 The same considerations that lead me to approve the trial judge’s rejection of the 1942 will of Mrs. Faulks leads me to think that the probate of the 1941 will should have been denied also. By that will the “dear Doctor” was to receive a gift of $13,600 besides the benefit that accrued to him by the agreement that for the first $1,100 received he was to render professional service for Mrs. Faulks during her life. The circumstances are cpiite as potent to lead to the inference that that will was induced by undue influence as that the 1942 will was. This would lead to the probate of the 1940 will. As the Doctor would receive nothing by that will it cannot be held to have been induced by the exercise of undue influence by him.
¶4 I think also that the 1942 will was an unnatural one for Mrs. Faulks to make and that this is of some significance. The quarrel with the Jensens that the court considers explains cutting them off from the provisions theretofore made for them in the joint will and the wills of 1936, 1940, and 1941 previously made does not apply to their daughter Lorraine. There was no quarrel with or misconduct by her who by all said previous wills had been given $10,000. Cutting off Lorraine in favor of one for whom only a foolish infatuation existed, was unnatural and indicates some mental abnormality or impairment. So of not making provision theretofore made in all the wills mentioned for Mrs. Alice Faulks, her deceased husband’s indigent sister. It would also seem that1 something must have been done by the Doctor between the making of wills of Mrs. Faulks in 1940 wherein the Doctor was given nothing and the will of 1941, wherein he was forgiven debts of $13,600. The conclusions of fact drawn by the trial judge from the circumstances of this case are not, in my opinion, brushed aside by the discussion in the opinion of the court of the rule as to burden of proof, which is logically *371 correct, or by the suggestion that kindness is not undue influence. The crucial question of the case is — Do all the circumstances justify the conclusion clearly reached by the county judge that Dr. Patterson used the influence incident to the confidential relation existing between physician and patient to induce the benefaction granted to him by the 1942 will? The relation between the Doctor and his patient, was manifestly very close. The influence attributable to the confidential nature of that relation that the Doctor might exert upon his patient in view of her age and physical condition is very great. But for that confidential relation the view of this court would be correct, but that relation existing, I think that the conclusion of the' county court that undue influence was exerted by Dr. Patterson is justified.
¶5 I am impelled to say further that the testimony indicates that the husband of Mrs. Faulks died in 1934 leaving a will by which he left to his wife the use of his property during life and several legacies to others. I am unable to understand why that will was not offered for probate in view of what has been said by this court in Will of Dardis, 135 Wis. 457, 115 N. W. 332; Will of Rice, 150 Wis. 401, 406 et seq., 136 N. W. 956, 137 N. W. 778; and Graef v. Kanouse, 205 Wis. 597, 238 N. W. 377. In these cases the wills were admitted to probate and attempt was made to evade their provisions by agreements between the beneficiaries, while in the instant situation the attempt was apparently made by the wife to evade her husband’s will by not offering it for probate and as a result acquiring the whole of the husband’s estate by descent instead of a life estate therein under the will or the part given her by election under secs. 233.12 and 233.14, Stats. A will of a testator should no more be frustrated by not offering it for probate than by probating it and then agreeing upon a distribution different from that provided in the will. Sec. 310.02 makes the delivery of a will to the county court mandatory upon those having its custody and knowledge of the testator’s *372 death, and upon an executor having knowledge of his appointment and of such death. Sec. 346.58 makes it a criminal pífense to suppress a will with intent to defraud. It would appear from the testimony herein that these statutes were violated. It was the duty of the trial courts in the cases above cited to refuse to countenance the attempts of the interested parties to circumvent the wills, although no party at the time objected to it. Was it not the duty of the trial court in the instant case, although no one at the time objected to it, to see that the will of the husband, if there was such, was not suppressed? Should not the county judge under the provisions of secs. 310.02, above cited, and 310.10, relating to probate of destroyed will, when it appeared from the testimony that the husband left a will and that' Will Jensen was the executor named in it, have required Jensen to offer it for probate as a destroyed will, if proof of it as such could be produced? I think this should have been done. If this were done, the effect of the proceeding would apparently greatly affect the distributions under the wills of 1940, 1941, or 1942 if either were admitted to probate. The property of George Faulks should be distributed according to his will, if he left one. I perceive no reason why the husband’s will, if he left one duly executed, cannot now be probated, if its terms may be established. Of course it may be that under the facts and the law — neither of which is now before us and neither of which we can now decide or intimate opinion concerning— the will of the husband for some reason not now apparent, cannot be probated. But as the executor named in that will was before the court, it appears to me that the court might properly, have required him to make full disclosure of provable facts to the end of protecting the public interest in having the inherent right of a person to dispose of his property by will protected.
¶6 In my view, the judgment of the county court, so far as it denied probate of the will of 1942, should be affirmed; the *373 portion admitting to probate the will of 1941 should be reversed ; the will of 1940 should be admitted to probate if proof of its due execution and contents was made, and if not the trial court should be directed to receive proof as to those facts and decide as to its probate according to the facts found; so as to the will of 1936 if the will of 1940 is not proved; and the respondent, Will Jensen, as executor of a will apparently executed by George Faulks, should be directed to propound such will for probate, unless on investigation by him it appears to the court that evidence to establish it as a last will cannot be produced.
¶7 I am authorized to state that Mr. Justice BaRlow concurs in this dissent.