The plaintiff is an attorney at law, and brings this action to recover compensation for professional services rendered by him for the defendant, under the following circumstances: In 1872, the defendant commenced an action against one Phillips, in the circuit court, and, in 1873, recovered judgment therein. An execution on the judgment was issued in 1874, by virtue of which certain lands were sold by the sheriff, and bid in by Root, for the amount of the judgment. Root thereupon satisfied the judgment of record. In 1877 the sheriff conveyed such lands to Root, pursuant to the certificate issued to him on the execution sale. The land remained in the possession of Phillips; and Root, being unable to obtain possession thereof, employed the plaintiff, in 1881, to obtain a writ of assistance, to put him in possession of the land. The writ was duly issued; but, before the same was executed, Phillips commenced an action to set aside the sheriff's deed as to one lot thereby conveyed, for certain alleged irregularities, and, also, on the ground that the lot in controversy was his homestead. A preliminary injunction was issued in that action, restraining the execution of the writ of assistance. Root thereupon employed the plaintiff to defend the action, and the plaintiff did so. Phillips prevailed in the action, and judgment was rendered therein, setting aside and vacating the sheriff's deed as to such lot. The plaintiff thereupon prepared a bill of exceptions in the case, at the request of Root, and obtained a settlement thereof by the circuit judge. The defendant then retained the plaintiff, to take an appeal from the judgment against him, and to argue the same in this court. The parties made a special contract, in writing, fixing the compensation of the plaintiff for his services on such appeal. The contract is as follows: "It is hereby agreed, by and between Franklin Root, party of the first part, and Arthur Gough, party of the second part, that the first party hereby agrees to pay the party of the second part $50, as fees for his services in taking an appeal to the supreme court, in the case of Jackson Phillips against Franklin Root; said first party, also, to pay his own printing, and the expenses of the second party to Madison, in case said first party desires the case to be orally argued. The plaintiff took the appeal, and, at Root's request, argued the cause in this court. The judgment of the circuit court was affirmed. 68 Wis. 128, 31 N. W. Rep. 712. The defendant Root then employed the plaintiff to procure the vacation of the satisfaction of the original judgment in Root v. Phillips, and to investigate the records in the register's office, to ascertain whether Phillips had any real estate, upon which he might levy an alias execution issued on that judgment. The plaintiff rendered these services. Subsequently, the defendant and Phillips negotiated a settlement of the whole matter in controversy between them, and Phillips paid Root $500, in accordance with such settlement. In his complaint, the plaintiff admits the receipt of $110, paid him by the defendant, on account of the aforesaid services, and claims a balance still due him of $135. The defendant alleges, in his answer, that he has paid the plaintiff $123.50, on account of such services. He also alleges that all of the above services, except those connected with the appeal to this court, were rendered under a special contract between the parties, to the effect that, if the plaintiff did not succeed in putting the defendant in possession of the lot in controversy, he should receive nothing for his services; and that he failed so to get possession of the lot for defendant. He also alleges that he has overpaid the plaintiff $70, in excess of what he is legally bound to pay him for such services. The trial resulted in a verdict and judgment for the defendant. A motion for a new trial was denied. The testimony and the rulings of the court on the trial are sufficiently stated in the opinion. The plaintiff appeals from the judgment.

Arthur Gough, for appellant. John Randall, for respondent.

LYON, J., (after stating the facts as above.) The principal questions litigated on the trial were whether the alleged contract that the plaintiff should receive nothing for his services, unless he succeeded in obtaining possession,

for the defendant, of the land in controversy, in the action of Phillips v. Root, was actually made; and, if so, how much of the services rendered by the plaintiff is covered by such contract. The services for which the plaintiff claims compensation in this action may be classified as follows: (1) Obtaining the writ of assistance; (2) defending the case of Phillips v. Root; (3) settling a bill of exceptions therein; (4) appealing that case to this court, and arguing the appeal; (5) procuring the vacation of the satisfaction of judgment in Root v. Phillips; and (6) examining records, to ascertain what property was held by Phillips, out of which the judgment in the last case might be collected. The written contract, set forth in the above statement of facts, fixed the compensation for services rendered in the appeal to this court at $50, and expenses. Such expenses were proved to be a little over $30. The undisputed evidence shows that the services of the plaintiff in procuring the writ of assistance were not included in such alleged contract. The defendant so testified, and there is no proof to the contrary. Manifestly, the services in setting aside the satisfaction of judgment in Root v. Phillips, and the examination of the records, as aforesaid, were not included in the alleged contract; for the reason that the services were rendered after it was settled, by the judgment of this court, that the defendant had no valid claim upon the land in controversy in Phillips v. Root, and, of course, had no reference to obtaining possession of that land for the defendant. Hence, the only services to which that contract could relate were those rendered by the plaintiff in the action of Phillips v. Root, before it was appealed to this court. The testimony tends to show that the value of the plaintiff's services for which, in any view of the case, he is entitled to compensation, including his expenses on the appeal, exceeds the sum which the defendant claims to have paid the plaintiff on account of such services. The circuit judge submitted to the jury the question as to whether the alleged contract was made, and, if made, to what services it applied, without any restriction or limitation whatever. Thus, the jury were left free to find that such contract covered all the services of the plaintiff, except those rendered on the appeal. It is certain that the jury found the contract was entered into by the parties, and that it covered and included a portion, if not all, of the services for which, as we have already seen, the plaintiff is entitled to compensation, exclusive of those rendered on the appeal. Instead of instructing the jury, as he did, that it was for them to determine to what services the contract applied, the judge should have instructed them that it could only apply to services rendered in the action of Phillips v. Root, before the appeal. For this error a new trial should have been granted. For these reasons, the judgment of the circuit court is reversed, and the cause will be remanded for a new trial.

RIORDAN V. O'HAGAN.

(Supreme Court of Wisconsin. December 4, 1888.)

1. WILLS-PROBATE AND CONTEST-PROOF OF EXECUTION-PRESUMPTION.

Each of the subscribing witnesses to a will identified his signature, but denied any recollection of signing it, and testified that he had never been in testator's house; and evidence was given that at the date of the will the testator was too ill to leave the house, but nothing was shown which would have had a tendency to impress the date of that illness on the recollection of the witnesses, while the testimony that at that date he was able to leave the house was fully as strong and convincing. Held, that the presumption arising from the attestation, to the effect that it was subscribed by the witnesses in the presence of the testator, was not overcome by proof. 2. SAME-TRIAL-SPECIAL FINDINGS.

The court having found that the will was executed by the testator in the city of B., on the day it bore date, and was at the same time subscribed by the attesting witnesses, it was unnecessary to make specific findings on the questions: "At what place in the city did the testator and the witnesses subscribe it?" "Was the testator able to leave his house on that date?" and, "Did he do so?"

Appeal from circuit court, Rock county; JOHN R. BENNETT, Judge.

Cornelius Buckley, for appellant. J. G. Wickham, for respondent.

LYON, J. Daniel Riordan, the respondent in this appeal, presented to the county court, for probate, an instrument in writing purporting to be the last will and testament of Peter O'Hagan, deceased, in which he devised and bequeathed all of his estate, real and personal, to his wife, Letitia O'Hagan. The instrument purports on its face to have been executed in the form re-quired by the statute, and was attested in due form by J. A. Sherwood and P. Johnson. Probate of the instrument was opposed by the appellant, Joseph A. O'Hagan, a son of the testator by a former wife. The county court ad-mitted the instrument to probate as such last will. The appellant, Joseph A. O'Ilagan, thereupon appealed to the circuit court. After a hearing in that court, the order of the county court was affirmed. The contestant, Joseph A. O'Hagan, appeals to this court from the judgment of attirmance rendered by the circuit court.

The only question raised on this appeal going to the merits of the controversy is, did the attesting witnesses to the will subscribe the same as such in the presence of the testator, as required by statute? Rev. St. p. 650, § 2282. The will is in the handwriting of E. P. King, Esq., of Beloit, in which city the testator resided when the same was executed. It bears date September12, 1881. There is no question but that it was signed by the testator, and by the two persons whose names appear thereon as attesting witnesses. It is understood that Mr. King died before the testator. After the signature of the testator, and before those of the attesting witnesses, is the following certificate: "The above instrument, consisting of one sheet, was, on the day of the date thereof, signed, published, and declared by the said testator to be his last will and testament, in the presence of us, who have signed our names, at his request, as witnesses, in his presence and in presence of each other." Both the attesting witnesses were examined as witnesses on the hearing in the circuit court, and each disclaimed any recollection of attesting the instru-ment, yet each verified his signature thereto. The substance of the testimony of each of them is contained in that of the witness Sherwood, as follows: "I have no recollection of signing that instrument; not the least. I don't remember signing it. All I know is that it is my signature." The theory of the defendant is that at the date of the will,-September 12, 1881,-the testator was sick, and unable to leave his house; and, because both of the attesting witnesses testified that they had never been in his house, they could not have been present when he executed the will, inasmuch as it must necessarily have been executed at his house. The testimony tending to show that the testator was seriously ill at the time is very inconclusive and unsatisfactory, depending, as it does, mainly upon the recollection of the witnesses of what transpired on a specific day six years before they were called to testify. Besides, they fail to disclose any facts or circumstances which would have a tendency to impress the precise date upon their recollections. The testimony of the appellant himself is a fair specimen of that of the other witnesses on the same subject. He had testified to having been at the testator's house, September 15, 1881, and that the testator was then very ill. When interrogated as to his means of knowing the precise date, he said: "I am able to say that it was the 15th that I was at my father's, because I was building a houseat the time. I have the papers to show." No papers were produced. The testimony tending to prove that the testator was able to go to Mr. King's. office, in Beloit, on September 12th, is fully as strong and convincing as the testimony to the contrary. It is deemed unnecessary to state the testimony more fully.

In the case of Will of Jenkins, 43 Wis. 610, and Will of Meurer, 44 Wis. 392, it was held that, to authorize the probate of an instrument propounded as a will, it is not absolutely necessary that the attesting witnesses testify to

all the facts essential to a valid execution of the will. In the Jenkins Case one of the attesting witnesses testified to the absence of at least one of those essential facts, yet it was held that such testimony did not necessarily defeat the probate of the will. In Will of Lewis, 51 Wis. 101, 7 N. W. Rep. 829, the rule of those cases was reasserted; and again in Allen v. Griffin, 69 Wis. 529, 35 N. W. Rep. 21. In the Lewis Case the contention was that the attestation was made before the testator signed the instrument. One of the attesting witnesses, in effect, so testified. In the opinion it was said: "The instrument is attested as a will in due and usual form. Such attestation is, of itself, not only prima facie evidence that the instrument was properly executed, but it raises a strong presumption that it was so executed. Had the witnesses deceased before the probate of the instrument, mere proof that the attesting signatures were their handwriting would have established the will. And the rule would be the same, although the signatures of the witnesses were not preceded by any attesting clause or certificate. To defeat probate, the strong presumption of regularity thus appearing upon the face of the instrument must be overcome by proof. Remsen v. Brinckerhoff, 26 Wend. 325; Ela v. Edwards, 16 Gray, 91; 1 Greenl. Ev. § 126; Burling v. Paterson, 9 Car. & P. 570. In view of this presumption, and considering also the infirmity of human memory, it seems most reasonable that a will purporting on its face to be legally executed should not be defeated on any doubtful or inconclusive parol proof that it was not legally executed. The opposite rule would greatly imperil the testamentary right; for under such a rule almost any will might be defeated by the dishonesty or imperfect memories of the attesting witnesses. Hence, in the present case, if the fact that the witnessessubscribed the instrument before the testator, defeats the probate thereof as a will of the testator, the fact should not be found, against the presumption of regularity, without very clear and convincing proof." A similar question was presented in Allen v. Griffin. In that case the proofs of irregular attestation were as strong as they are here. In the opinion by Mr. Justice TAYLOR it is said: "To reject the probate of a will upon such evidence as was offered in this case, on the ground that it does not conclusively appear that the witnesssigned as such after the signature of the alleged testatrix, would jeopardize the probate of very many honest wills. We think, in the absence of clear proof that the witness or witnesses signed before the signing of the testator, it should be presumed that the testator signed first." The learned counsel for the appellant in his brief asserts quite positively that the rule laid down in the Lewis Will Case is but a mere obiter dictum. We must assure the counsel that in our opinion he is mistaken. But, however that may be, we must apply the rule to this case, and it certainly is not obiter dictum here. We find in this case no such clear and satisfactory proof that the will was attested in the absence of the testator as will justify the reversal of the finding that it was attested in his presence, or which would support a contrary finding, had one been made. In other words, the presumption arising from the attestation, and the attesting clause, to the effect that it was subscribed by the witnesses in the presence of the testator, is not overcome by proof. Hence the instrument was properly probated as the last will and testament of Peter O'Hagan.

Exceptions are preserved in the record to the rulings of the court admitting certain testimony against the objections of the appellant, and rejecting certain other testimony upon objections by the respondent. Without stating these in detail, it is sufficient to say of them that if all the testimony so objected to by appellant had been rejected, and all the testimony thus ruled out had been received, the result would not have been changed.

On the hearing in the circuit court, the appellant submitted several questions of fact, and requested the ccurt to find thereon. The substance of these questions is, at what place in the city of Beloit did the testator execute, and

the attesting witness subscribe, the instrument? Was the testator able to leave his home, September 12, 1881, and did he do so? We think no such specific findings were necessary. The circuit judge found that the instrument was executed by the testator in the city of Beloit, on the day it bears date, and was at the same time subscribed by the attesting witnesses in his presence. The finding is sufficiently specific. The judgment of the circuit court is affirmed. The appellant must pay the costs of this appeal.

KILLIPS v. STEPHENS et al.

(Supreme Court of Wisconsin. December 4, 1888.)

MORTGAGES-FORECLOSURE-ATTORNEY'S FEES-EXCESSIVE ALLOWANCE-REMISSION. Where, on foreclosure of a mortgage, the court makes an allowance for attorney's fees in addition to the sum stipulated for in the mortgage, but before appeal is taken plaintiff remits the excess, the error is cured. It is immaterial that the remission is made after judgment.

Appeal from circuit court, Waukesha county; SLOAN, Judge.
Sumner & Tullar, for appellants. David W. Small, for respondent.

LYON, J. This action is to foreclose a mortgage on real estate, executed by the defendant Stephens to one Cook, and by him assigned to the plaintiff. The case was here on a former appeal from a judgment dismissing the complaint. The judgment was reversed for error, and the cause remanded, with directions to the circuit court to state an account of payments upon the mortgage debt, and authorizing the court to re-refer the cause, and to allow the introduction of further testimony. 29 N. W. Rep. 390. An order of reference was accordingly made, further testimony taken, and the referee stated an account, showing that there was due the plaintiff on the mortgage debt, at the date of the report, $260.34. The court confirmed the findings of the referee, and gave judgment of foreclosure accordingly. The defendants appeal from the judgment. 1. On the trial the defendants introduced testimony tending to show that on February 25, 1887, the defendant Stephens paid the plaintiff, on account of the mortgage debt, the sum of $200. The plaintiff testified that no such payment was made. The referee failed to allow the payment, and the court denied a motion by the defendants to modify the report by allowing the payment. The only error going to the merits, assigned on this appeal, is the refusal of the court to allow such alleged payment. The payment is not evidenced by any receipt, indorsement, or other writing, and the only testimony on the subject is that of the plaintiff and the defendant Stephens. Their testimony is in direct conflict, and fails to disclose any fact or circumstance, bearing upon the question as to whether such payment was or was not made, which gives any greater force to the testimony of one party over that of the other. The burden of proof was upon the defendants, and the circuit court was of the opinion that the testimony tending to show that the payment was made did not preponderate over that tending to prove the contrary. Under well-settled rules this court cannot, in such a case, disturb the finding of the trial court.

2. The mortgage contained a stipulation for $30 solicitor's fees over and above taxable costs, and the original order for judgment directed that the plaintiff recover that sum. Before the judgment was entered the court made an ex parte order aliowing the plaintiff $100 solicitor's fees over and above taxable costs, and that sum was included in the judgment. As a matter of course, this was error. But before this appeal was taken the plaintiff filed with the clerk of the court a remission of all such fees in excess of $30, and gave the attorneys for the defendants written notice that he had done so. On the authority of Duffy v. Hickey, 68 Wis. 380, 32 N. W. Rep. 54, it must be held that such remission and notice thereof cured the error in the judgment.