48 Minn. 504 | Minn. | 1892
Timothy Hess, late of Winona county, died testate, in December, 1889, leaving, him surviving, five children, James Hess, Mrs. Ella Dearborn, Mrs. Mary Foster, Mrs. Emma Eyan, and Cornelius Hess. He was upwards of 70 years old. His will was executed September 24, 1888. In this will James Hess and Mrs. Ella Dearborn were named executors, and legacies of $50 each, only, were left to Mrs. Foster, Mrs. Eyan, and Cornelius Hess, a legacy of $500 to George Ford, a son of Mrs. Dearborn, and all the rest and residue of the estate of the deceased was given and devised to the executors, James Hess and Mrs. Dearborn, share and share alike. The estimated value of the estate was about $5,000. The validity of this will is contested by Mrs. Foster and Mrs. Eyan and Cornelius Hess, who alleged that the same was procured to be executed through the fraud of James Hess and Mrs. Dearborn, and constraint and undue influence by them executed and exercised over the mind of the testator at the time of the execution thereof. On appeal from the order and judgment'of the probate court, the issue of fraud and undue influence was tried by jury in the district court of Winona county, and a verdict thereon rendered in favor of the contestants.
One of the principal assignments of error is that the findings and verdict of the jury are not justified by the evidence. It is contended by the proponents that there was no evidence of fraud or undue influence in the case warranting the submission of the question to the jury. It is not necessary, in considering this assignment of error, to review the evidence in extenso, or to make special reference to the testimony of the several witnesses. It will be sufficient to refer to such parts of it as may be necessary to show the basis of our' conclusions upon this question. What is and is not undue influence has been considered and declared in our former decisions, and we need do little more than refer to them here. In re Storer's Will, 28 Minn. 11, (8 N. W. Rep. 827;) Nelson's Will, 39 Minn. 205-208, (39 N W. Rep. 143;) Mitchell v. Mitchell, 43 Minn. 73, (44 N. W. Rep. 885.) It is said in Re Storer's Will: “From the nature of the case, the ev
Evidence was received on the trial of the declarations of the testator subsequent to the execution of the will, for the purpose of showing the extent and effect of the undue influence claimed to have been exercised over him when the will was made; but the court correctly charged the jury that if the evidence, independent and exclusive of the testator’s declarations, did not satisfy them that undue influence was used in procuring the making of the will, they must answer the question of undue influence in the negative. And this must, of course, be so; otherwise the fact would be permitted to be proved by such declarations, though not part of the res gestee. The evidence of undue influence must be other than that which proceeds from the testator’s own mouth after a will is made. And in this case the evidence fails to show, apart from such declarations, that there had been either such pressing solicitations or fraudulent practices on the part of the proponents as to amount to moral coercion of the testator, not only affecting his judgment, but overriding his free agency, also. Indeed, with the exception of the testimony of the witnesses to the will of what transpired at the time it was drawn and executed, there is no evidence of any importance on the main issue. It is not enough that there be motive and opportunity, as the evidence undoubtedly tends to show there were in this case, but the influence must be exercised and take effect so as to destroy the free agency of the testator, and control the disposition of the property under the will when it is made. Unless the influence of these beneficiaries was unfairly and unlawfully executed, so as to dominate his will at the time, it is not material that they were interested in the will, or had
As respects the specific charge of fraud growing out of the alleged representations of Mrs. Dearborn, we dismiss it by saying that it is not sustained by the evidence; nor does the record present a much stronger case of undue influence. The testator had made it his home with his son James, on the farm of the latter, in Winona county, for several years before his death. Mrs. Dearborn lived in Chicago. A few days before the will was executed Mrs. Dearborn came on a visit to her father, and remained till after its execution, when her father went with her to Chicago, but afterwards returned to Minnesota, and, before his death, visited Mrs. Foster in Wisconsin. As respects James, the evidence shows that he brought his father and sister to.the magistrate when the will was made. His father also left with him the key to his box in a safety vault,
The more closely the case is examined,-in the light of all the testimony, the more clearly it appears that there is no sufficient proof of facts from which undue influence can be inferred. The testator was a man of strongly marked characteristics, of sound mind and determined will, abundantly able to protect himself, — a matter not to be overlooked in considering a case of this kind; and, as long as the law permits a disposition of property by will different from that which the statute makes in case of intestacy, the mere fact that the testator makes an unequal, partial, or seemingly unjust division of his property is no ground for setting it aside. The provisions of the will may be considered, in connection with other evidence, in trying the question of undue influence, but is not itself evidence of such influence; and the court cannot assume to judge of the justice of the provisions of the will, or to question the motives of the testator in making it. Cudney v. Cudney, 68 N. Y. 152; Nelson’s Will, 39 Minn. 205, (39 N. W. Rep. 143;) Latham v. Udell, 38 Mich. 238.
Order reversed.
(Opinion published 51 N. W. Rep. 614.)