| Wis. | Feb 3, 1914
Lead Opinion
Were the conclusions of fact reached by application to the case of correct legal principles? Upon surveying the evidence in connection with the treatment of it in the opinion, filed by the learned judge before whom the case was tried, we are strongly impressed with the idea that he was efficiently influenced by a wrong notion of the law.
There is an absolute absence of any direct evidence that appellant or his wife, by act or word, ever suggested to Mr. Svenson the idea of his conveying his property to them or either of them, or that they 'influenced him to' reside with them, or that they ever interfered with his property or business affairs in any way whatever. On the contrary, as indicated in the statement, the direct evidence, and circumstantial as well, is to the effect that Mr. Svenson had his own way with his property up to the time of the transfer, did his own business, without soliciting or taking or receiving advice from any one, with perhaps the exception that defendant aided him somewhat at the time he sold the farm, all the transactions in respect to which are admitted to be beyond suspicion,
In view of the situation stated, some light is thrown on the manner in which the result was reached by observing that the trial judge indulged in the idea, for which there is some basis in the early decisions here, but which the court of late has endeavored, time and again, to correct, that upon a prima fade showing being made in a case of this sort, there is a shifting of the burden of proof to the side of the defendant, requiring him, in order to prevail, to prove affirmatively to a reasonable certainty, that the transaction was the free, voluntary, intelligent act of the deceased. That is all wrong. This court has said so in Small v. Champeny, 102 Wis. 61" court="Wis." date_filed="1899-01-31" href="https://app.midpage.ai/document/small-v-champeny-8186162?utm_source=webapp" opinion_id="8186162">102 Wis. 61, 78 N. W. 407; Vance v. Davis, 118 Wis. 548" court="Wis." date_filed="1903-07-03" href="https://app.midpage.ai/document/vance-v-davis-8187690?utm_source=webapp" opinion_id="8187690">118 Wis. 548, 95 N. W. 939; Winn v. Itzel, 125 Wis. 19" court="Wis." date_filed="1905-05-02" href="https://app.midpage.ai/document/winn-v-itzel-8188210?utm_source=webapp" opinion_id="8188210">125 Wis. 19, 103 N. W. 220; Ball v. Boston, 153 Wis. 27" court="Wis." date_filed="1913-04-08" href="https://app.midpage.ai/document/will-of-ball-v-boston-8190900?utm_source=webapp" opinion_id="8190900">153 Wis. 27, 141 N. W. 8; and other cases.
It is unfortunate that trial courts now and then, cling, seemingly, to the idea of the shifting of the burden of proof in such cases, and in that way take a wrong view of the evidence. There is no more shifting of the burden of proof in this class of cases than in any ordinary case where the plaintiff by evidence in chief succeeds in making out a prima facie case. The burden of proof rests with him from the beginning to the end. The only distinguishing characteristic of the particular class is this: the court' has held that some circumstances are sufficient to so lift the burden as to call for rebuttal. But all the defendant need then do is to produce sufficient evidence to so weaken plaintiff’s case, that the circumstantial and other evidence in his behalf no longer establishes t'he fraud chaiged with the requisite clearness to warrant a decision in his favor. That is to say, a prima facie case, circumstantially made against the defendant, does not require him, in order to defeat it, to prove affirmatively that'
The presumption mentioned exists in all cases where fraud is charged. This court said in Winn v. Itzel, supra, referring particularly to the decisions giving rise to the idea that there is a rule peculiar to this class of cases as regards the “shifting of the burden of proof
“We do not understand that the principle there approved changed the practice in fraud cases, or affected the order of the trial of such cases. Parties who charge fraud must prove fraud after as well as before that decision. They still have the burden of proof. . . . When the plaintiff makes a prima facie case, entitling him to relief if the proof stops there, the defendant must take up the burden and meet the case so made by other evidence. This is the case in all contests of fact.”
Former decisions in this class of cases were not intended to go further than to announce what facts should be considered as prima facie proof of fraud requiring explanation by the defendant. With a view to making what was thought to have been plainly decided in Winn v. Itzel and other cases, unmistakable, this was said in the late case:
“Thus it will be seen, in a case of this sort, upon a prima facie case being circumstantially made calling upon the person charged with fraud to explain his conduct, there still stands the presumption against wrong doing, eclipsed for the time being by the adversary presumption, but, subject to be efficiently aroused by affirmative evidence, direct or circumstantial, so satisfactorily explaining the adversary circumstances that they no longer seem to exist by clear and satis*573 factory evidence. In the end, upon tbe whole case, the circumstances from which the alleged undue influence is.infer-able as matter of law must stand-upon such evidence. That is, the burden being upon the one charging undue influence, from first to last, to establish it by clear and satisfactory evidence, the rule goes to the existence- of the circumstances; the effect of the circumstances is matter of law. Weaken the case as to any one of the vital major incidents so that'it can no longer- be said to exist by clear and satisfactory evidence; then the prima facie case once created is so far rebutted that the plaintiff cannot successfully stand thereon, but must go further.” Ball v. Boston, 153 Wis. 27" court="Wis." date_filed="1913-04-08" href="https://app.midpage.ai/document/will-of-ball-v-boston-8190900?utm_source=webapp" opinion_id="8190900">153 Wis. 27, 37, 141 N. W. 8.
There is another important feature of the trial court’s logic which seems to be contrary to the settled doctrine of this court. It is suggested that this court has never laid down any particular conditions which must be proved in a case 'of this sort; but, on the contrary, it has been decided that it is impossible to formulate a precise rule by which to decide the facts in all cases, citing Winn v. Itzel, supra, and drawing the conclusion therefrom that aflirmative proof of a disposition to exercise undue influence is not vital. The trial judge seems to have overlooked the fact that' in the Winn Case after the treatment upon which he relied, this rule, laid down in Fox v. Martin, 104 Wis. 581" court="Wis." date_filed="1899-11-24" href="https://app.midpage.ai/document/fox-v-martin-8186450?utm_source=webapp" opinion_id="8186450">104 Wis. 581, 80 N. W. 921, and many times since reiterated, particularly in Loennecker’s Will, 112 Wis. 461" court="Wis." date_filed="1901-12-17" href="https://app.midpage.ai/document/consaul-v-loennecker-8187155?utm_source=webapp" opinion_id="8187155">112 Wis. 461, 88 N. W. 215, was approved:
. .“There must be shown a subject unquestionably susceptible to' undue influence, either as the result of old age, mental weakness, or both; also some clear evidence of opportunity, and a disposition on the part of the beneficiary to exercise such influence,”
.in order to raise the presumption of such exercise and call upon the defendant to so far weaken it, at least as to destroy efficiency to establish the ultimate fact.
It must follow that to warrant' such a result as was reached here as to undue influence, the fact of susceptibility to such influence must be left at the end- of the trial unquestionably
The very nature of such cases as this indicates the prime-essential to a recovery. It is grounded on fraud, and fraud of a very serious character. Will of Slinger, 72 Wis. 22" court="Wis." date_filed="1888-06-20" href="https://app.midpage.ai/document/will-of-slinger-8182886?utm_source=webapp" opinion_id="8182886">72 Wis. 22, 37 N. W. 236; Small v. Champeny, 102 Wis. 61" court="Wis." date_filed="1899-01-31" href="https://app.midpage.ai/document/small-v-champeny-8186162?utm_source=webapp" opinion_id="8186162">102 Wis. 61, 78 N. W. 407; Ball v. Boston, 153 Wis. 27" court="Wis." date_filed="1913-04-08" href="https://app.midpage.ai/document/will-of-ball-v-boston-8190900?utm_source=webapp" opinion_id="8190900">153 Wis. 27, 141 N. W. 8; Gordon v. Burris, 153 Mo. 223" court="Mo." date_filed="1899-12-22" href="https://app.midpage.ai/document/gordon-v-burris-8013397?utm_source=webapp" opinion_id="8013397">153 Mo. 223, 54 S. W. 546; Grove v. Spiker, 72 Md. 300" court="Md." date_filed="1890-06-18" href="https://app.midpage.ai/document/grove-v-spiker-7898110?utm_source=webapp" opinion_id="7898110">72 Md. 300, 20 Atl. 144. This court, speaking of the wrongful act, said in Will of Slinger:
“Manifestly it is a subtle species of fraud, whereby mastery is obtained over the mind of the victim by insidious approaches, seductive artifices, or other species of circumvention ;”
and in Ball v. Boston, supra:
“It is, really, one of the most reprehensible of deceptions because of the cunning, insidiousness, and artifices of seduction, which, in general, characterize it, and by means of which, the unsuspecting victim is rendered powerless to carry out his own wishes or resist those of the wrongdoer.”
1 Now if the basic feature of the case is fraud, and fraud in a high degree, and therefore particularly inconsistent with the general presumption against wrong doing, why does not the ordinary rule of clear”and satisfactory evidence, in cases, ’■dependent on the establishment of fraud, apply, — not only apply, but quite emphatically ? Generally, the more serious the nature of a wrong the stronger is the presumption of innocence of it, so the higher the degree of certainty required to overcome it. So, in ordinary cases, proof of the facts to a reasonable certainty is sufficient. In cases sounding in fraud, proof of the facts with that' degree of certainty is required, emphasized by the call for clear and satisfactory evidence; and where the wrong is of such serious nature as to-
I enlarge upon the matter above discussed because I believe that such an important feature of the law should not be left in any degree of uncertainty. In Ball v. Boston, after referring to many cases at home and abroad on the subject, it was said advisedly:
“Thus it will be seen, in a case of this sort, if there is failure to appreciate that the gist of the attack upon the will is fraud, and the rule applies that he who alleges fraud must •establish it, — not by a preponderance of, but by clear and satisfactory evidence, — the finding as to the vital fact is liable” to be wrong because of having been reached without proper legal guidance.
Probably the logical result of classing obtaining property by the exercise of undue influence with wrongs sounding in fraud, so that cases depending upon proof of such a wrong •should be tested by the common rule on the subject, was first definitely stated in Ball v. Boston; but special reference was. there made and is here repeated, to the fact that the first
“The burden'being upon the one charging undue influence, from first to last, to establish it by clear and satisfactory evidence, the rule goes to the existence of the circumstances. The effect of the circumstances is matter of law.”
That the trial court did not understand the law as above indicated, becomes quite clear by testing the findings of fact by the evidence, and is rendered unmistakable by language found in the opinion. What else can the suggestion mean to the effect that this court'has not laid down any precise conditions essential to the finding of efficient undue influence in a case of this sort, in face of the fact’ that several conditions have been held, time and again, to be vital? Furthermore, what else can the statement by the learned judge mean, to the effect that this court has not laid down, as a rule, that there must be affirmative proof of disposition on the part of the beneficiary to exercise such influence ? We must assume that the trial judge did not mean by the term “affirmative proof,”' direct evidence, but did mean that the suggested disposition on the part of the beneficiary to exercise undue influence, need not be affirmatively established; or in other words, established by a preponderance of the evidence. The word “affirmatively” is somewhat ambiguous, but where used in the particular connection in question, it has been held to convey the idea of evidence establishing the fact in dispute by a preponderance of the evidence. Hendrickson v. Wis. Cent. R. Co. 143 Wis. 179" court="Wis." date_filed="1910-05-24" href="https://app.midpage.ai/document/hendrickson-v-wisconsin-central-railway-co-8189951?utm_source=webapp" opinion_id="8189951">143 Wis. 179, 122 N. W. 758, 126 N. W. 686.
Further, after suggesting that no particular essential cir-
In view of the foregoing, it is considered' that the trial court, in reaching a conclusion, did not deem it material to find that Mr. Svenson was unquestionably susceptible to undue influence, nor that a disposition on the part of appellant to exorcise such influence should be, or was, established, even to a reasonable certainty. In other words, that' evidence persuasively tending to show the alleged victim to have been susceptible to undue influence, and something not answering at' all to the call for clear evidence of a disposition on the part of the beneficiary to exercise undue influence, is sufficient in exceptional cases such as this.
Thus, in three material respects the decision complained of, is characterized by misapplication of law to evidence. That, necessarily, greatly, if not entirely displaces the presumption which, in general, renders judicially found facts immune from efficient attack, and requires us to go to the evidence and endeavor to determine, from an original standpoint, whether it warrant's the conclusions which are challenged.
Now, where is the evidence showing that Mr. Svenson was unquestionably susceptible to undue influence when the transfer was made to appellant, or was unquestionably or clearly incompetent ? After reading the evidence in the record with all the care we can bestow upon it, we cannot answer that question. There may be evidence, direct or circumstantial, or both, affording fair ground for suspicion as to existence of the vital weakness; but that would be the limit.
The burden of proof being on respondent' in respect to the matter, it was necessary for him to produce evidence of a substantial, forceful, and convincing character and which possessed that character in the face of the adverse proof, in order to warrant' a finding in his favor. The evidence indicates that Mr. Svenson possess&d characteristics common to men of his age and station who, having permanently laid aside all thought of taking further part' in the activities of life to earn the means essential to care of themselves and family, in contemplation of inactivity for a few years and then death, may settle, or practically so, upon a plan for their remaining years, and are merely waiting for the last call, yet have retained full control of their property and business. Such little circumstances, in such a situation, as waiting to be spoken to upon neighbors calling, especially in case of difficulty of hearing, if characterized by a prompt and intelligent response, as is quite clearly established here was the case, notwithstanding some little evidence to the contrary, weigh
The amount of property here.was not large. It was no more than an old man, circumstanced as deceased was, might well consider he could afford to give to be able to live in comfort, — free from all care, with every reasonable requirement for his welfare, the balance of his days, provided, — under the roof of a daughter whom he loved and who loved him and between whom there were relations, special, as regards his other children, and be assured a decent burial at the end. Especially is that so, in view of the fact that Ms other children, except one, were far away, had been absent for many years, had family relations of their own and did not need any assistance from him, and that one had not lived with him since his thirteenth year, a period of some twenty-five years. ‘There is nothing in the case to indicate that the absent children paid any special attention to their father during the years which elapsed between the death of his wife and his own decease, or that he thought he was not perfectly competent to handle his own affairs, even to the extent of using his little estate, and the whole of it if necessary, to secure care in his old age.
The idea expressed by the trial judge that the agreement made for support was a grossly inadequate consideration for the property appellant received from the deceased, must have been made from the viewpoint of the result of the contract, instead of from that which was within reasonable probabili
It seems hardly possible that the trial judge could have looked, prospectively, from the standpoint of the parties when the contract was made, when he indulged in the idea that the property transferred was grossly disproportionate to the consideration received. The deceased, evidently, thought that there might not be much left, in the end, out of his little property, — probably not' enough to be of any considerable account, divided into four parts, and so, without meaning any slight to his absent children, he determined to give all to the one who had been nearest to him, — the one to whom he turned when necessity compelled him to seek for a home away from his own place, — -the one who took him in and had been kind to him, and on whom he relied for future care and such kindness as only a daughter is likely to bestow — and was very decided about it.
When it comes to matter of clear evidence of a disposition to exercise undue influence over the deceased, we are at a loss to find any. On the contrary, there seems to be very clear direct evidence that no such disposition existed. There is no question but what the one called in to act as legal adviser and the one who was called to be a witness were reputable men. Mr. Anderson, who attended to drawing the papers and ad
The circumstance of Mr. Svenson so emphatically declining to reserve any property for his absent children as to give the impression that he was irritated by the suggestion that he should do so, is not very significant. When viewed in its proper light, there seems to be no clear foundation in the evidence for the conclusion that Mr. Svenson was either incompetent or acted under undue influence. „ His final declination, with some show of irritation, to reserve any property for the absent children, instead of indicating that he was in an abnormal condition or under undue influence, seems to evidence the contrary. The whole transaction shows that he
That the manner of Mr. Svenson, as indicated, fairly evidences a deliberate plan of disposition of his property, is corroborated by evidence of occurrences before the transfer. Such occurrences also show there was no thought on the part of appellant of preventing Mr. Svenson’s absent children from counseling him, if they desired- to do so, in respect to his care in old age and the disposition of his property. In this connection, it is considered, that the evidence of appellant’s wife that she, by his direction, repeatedly informed her brother Sievert by letter, that her father desired to make a full disposition of his property, either to her and her husband or to some institution, to secure his future care, which was -taken under objection, should have been considered. She obviously was agent for appellant in writing the letters. There can be no doubt about that. ’ If, by letter, appellant and his wife informed Sievert, as is claimed, it is very persuasive against the claim of undue influence and incompetency as well. The evidence is, practically, undisputed that correspondence was had between appellant’s wife and Sievert, several letters passing, and that, in those letters, he was informed that his father wanted to make a final disposition of his property. She testified very positively in respect to the matter. He testified in a somewhat contradictory and uncertain way, as if he had no definite remembrance as to what was written to him. On the whole, his evidence shows that
In connection with the fact that Mr. Anderson admonished Mr. Svenson, after the transfers were all made, that if at any time the latter should be dissatisfied with what he had done, to let the former know and he would come out and fix the matter over again, it is significant that, though Mr. Svenson was substantially in' full possession of his faculties for a year, more or less, thereafter, he did not by act' or word show any desire for any change. The old man’s mental condition, some two months after the transaction in question, is indicated by the circumstance that, when the pastor of the church to which appellant and his wife belonged, called at the house, he talked intelligently and thought to send greetings to the pastor of his own church. There are ample indications in the record that the deceased, for months after the particular transaction, was fully competent to reconsider it and express dissatisfaction therewith and was free to do so if he desired, yet he gave not the slightest sign in that regard.
Without pursuing the subject discussed further it seems that enough has been said to show that the evidence, from the viewpoint of right rules of law, does not support the findings and that, had the trial court looked at the matter from such viewpoint, the result would have been different.
By the Court. — The judgment.is reversed, and the cause remanded with directions to dismiss the same with costs.
Concurrence Opinion
(concurring). I agree in the result. For reasons stated in Ball v. Boston, 153 Wis. 27, 141 N. W. 8, I do not agree in all that is said in the opinion.