180 Iowa 394 | Iowa | 1917
Bessie Graham executed her will March 5th, and died March 17, 1913. She had never married, and was 74 years of age. She had been in good health until shortly before death, though she had become so • fleshy that, it was difficult for her to get about. The will was admitted to probate April 25, 1913, and this action, to set aside the
“To the long-time and faithful friend of my beloved father and my friend, the Hon. O. B. Courtright, I hereby in gratitude give and bequeath the sum of $5,000 to be paid to him by the executor hereof within 15 months from and after the probate hereof.”
The residue of the estate, real and personal, was left to Theodore M. Graham, who was named as executor, without bond. The bequests were declared liens on the real estate. Theodore was a half brother, 10 or 12 years younger than decedent.' Whether William was brother or half brother does not appear. Courtright drew the will, and the clause quoted is assailed only as having been inserted in consequence of undue influence exercised by him over testatrix. The jury, in so finding, accompanied their verdict with a statement denominating him “innocent of any charge of attempted fraud, but admit that he is the victim of a most unfortunate legal hypothesis which deprives him of an otherwise legitimate legacy.'”
Errors in ruling on the admissibility of evidence, in overruling motion to direct a verdict, and in instructions given, are assigned, and, as these are based on the evidence, the record may as well be stated at the outset. The acquaintance of Courtright and testatrix began when living with their parents on farms not far apart, in Grundy County. She continued there until about 1885. He began the practice of law in Parkersburg in 1878. Upon the death of her father, in 1888, she became administratrix of his estate, and employed Courtright as attorney to aid in its settlement. Thereafter, she lived at'Cedar Falls until the death of her mother, when she returned for a short time to Parkersburg. Thereafter, she made her home for a time
Shortly before noon on the day in question, Mrs. Graham telephoned Courtright that “Bessie is sick, and would like to see you.” She had previously told him that testatrix would like to do something about her will. He called after lunch. Theodore testified that Bessie was sick in bed when he arrived; that he went to the sick room with him.
“I told him that it had been my sister’s request that, whenever the time came when she wanted to dispose of her
His wife, Effie Graham, corroborated her husband somewhat, by testifying:
“I heard him say, ‘Theodore, you better be out, because if you were called on you can get up and say that you knew nothing that is in the will.’ My husband came out and went into the kitchen. The door was shut up tight. Mr. Oourtright was in the room alone with Bessie about 15 minutes, Avhile he made the notes of the will. He then came out, and says, ‘Theodore, Bessie wants to make me a little remembrance.’ Mr. Graham says, ‘What is this, in the nature of a retainer?’ He says, ‘No, just a little present.’ I never heard the will read and did not read it.”
“I went to the home-of Theodore Graham in response to this call. I met Theodore Graham and his wife and the decedent, Bessie Graham. I found the decedent in a bedroom on the first floor of the house. Theodore went into the room with me. I had some conversation with Theodore there in the room. I don’t remember just how it started, but do remember of telling him that he had better not be present during the time that I was ascertaining Avhat the provisions of the will were to be, and he replied that she had said when she came to make her will she Avanted him present, and I said to him, ‘Well, that is all right so far as she is concerned, but for your own interests I think it Avpuld be better for you not to be present. If any difficulty should arise hereafter, which is liable to, you would be in a better position if you could go onto the stand and testify that you knew absolutely nothing about Avhat was in the will,’ and upon that he went out of the room. Whether I put my hand on his shoulder or not, I don’t remember. The bed lay lengthwise of the room. The door came in pretty near opposite the foot of the bed, and there was a stove and a chair between the door and the head of the bed, and I sat in the chair or stood there by the chair probably not over a foot or two from the bed, and not more than a foot or two from the door. After he went out of the door, I am quite sure I closed it.”
The witness then explained the reason for the suggestion that Theodore be not present, relating a conversation concerning difficulty between testatrix and W. J. Graham, which conversation Theodore and his wife denied having had, and proceeded:
*400 “That is substantially the conversation Ave had at that time, and I knew that fact when he came into the room, and thought that, if he was to be given the bulk of the property, it would be better for him — and I was interested in
“Bessie said she left Mr. Courtright a little remembrance. I think he said, ‘Well, Bessie, it is more than a little.’ That is as near as I can tell the exact words.”
This witness was asked, on cross-examination, whether decedent replied:
“Yes, it is what I wanted to do anyway. A. Well, she meant something like that, but I couldn’t say just exactly what it was. Q. Well, was it substantially that?*402 A. Yes, it was something like that. She seemed to think that she wanted to give him something. Q. It was — she seemed to want to indicate that it was what she wanted to do, anyhow? A. Yes, sir. Q. Whether it was big or little? A. Yes, sir. Q. Was that your idea? A. Yes, sir.”
“A lawyer, in receiving the directions or instructions of one intending to make a will, is confided in by reason of his professional character as a counselor, and he acts in that capacity, although asking no questions, and without advising; he does nothing more than to reduce those directions to writing. The relation, therefore, ‘between the testatrix and the witness was that of client and attorney.” .
This was said in holding that such attorney might not testify to communications between him and client under a statute of New York. Under the decisions of this and many other states, similar statutes do not apply in contests over the probate of the client’s will. Winters v. Winters, 102 Iowa 53. The cases on which appellant relies so hold, and that, where an attorney acts as such, the statute has no application. In re Downing’s Will, (Wis.) 95 N. W. 876; In re Estate of Young, 33 Utah 382 (17 L. R. A. [N. S.] 108), and cases collected in note; Borum v. Fouts, 15 Ind.
“Who was present? A. Mr. Graham and I. * * * Q. Isn’t it a fact that her first reply was that she did not wish to tell, or words to that effect? A. Well, no; she didn’t say right out that she didn’t wish to. She just spoke about the same as anybody, I guess. I says, ‘Bessie, tell me,’ and she did. She says] ‘Mr. Courtright is a friend*404 of yours.’ I says, ‘Well, Bessie, tell me how much you left him.’ She says, ‘I left him $500.’ I asked her a second time. I said to her, ‘Bessie, tell me how much you left Orlando.’ She said, ‘Orlando is a friend of yours.’ I said, ‘Well, Bessie, tell me.’ She says, ‘I left him $500.’ ”
Her husband, Theodore, testified that he heard the conversation, and that:
“My wife asked her, ‘How much did you leave Orlando ?’ That was the name that Mr. Courtright was always known by in the family. She said, ‘I left him $500.’ ”
This evidence was received over objections, and it is contended: (1) That it was inadmissible for any purpose; and (2) that the instructions 6, 7 and 8, with reference thereto, were erroneous.
Evidence indicating the condition and attitude of decedent’s mind was admissible as bearing on the issue as to whether decedent’s mind had in fact been influenced. Johnson v. Johnson, 134 Iowa 33; Cash v. Dennis, 159 Iowa 18; Hughes v. Silvers, 169 Iowa 366; Zinkula v. Zinkula, 171 Iowa 287, 301.
The ruling of the trial court is approved on this ground. It is argued, however, that this class of evidence is not admissible until substantive testimony of the exertion of undue influence has been adduced. The satisfactory answer to this is that the order of the introduction of evidence is controlled by the discretion of the district court, and, in any event, the record was such that the exercise of undue influence might have been found by the jury. The decisions of this court cited above are conclusive that the above evidence is to be regarded as mere hearsay on the issue as to whether undue influence was actually exercised or exerted on the decedent, and may not be considered as bearing thereon. But the court, in the sixth instruction, enumerated many items of evidence, including “the evidence in
“All this evidence may be considered by you not only in determining whether 'there was undue influence exercised by the defendant, but also in determining whether the defendant has overcome the presumption, if any, that he did exercise such undue influence over the said Bessie Graham,”
This instruction manifestly was erroneous, and, in view of the fact that contestant relied largely on the inference of undue influence to be drawn from the fiduciary relation existing between testatrix and appellant, was extremely prejudicial.
“That the law then casts upon .the defendant the burden of showing by a fair preponderance of the credible evidence that no undue influence Avas exercised by him over the said Bessie Graham that induced her .to make the legacy to him.”
“To cast upon him, on the bare proof of the legacy and his relation to the testator, the burden of showing how the thing came about, and under what influence or with what motives the legacy was made, or what advice the*407 testator had, professional or otherwise, would be to cast a duty on him which in many, if not most cases, he could not possibly discharge.”
For these reasons, a presumption of undue influence is not to be based on the mere existence of a fiduciary relation between the beneficiary under the will and the testator. Tyson v. Tyson, 37 Md. 567, 583; Bancroft v. Otis, 91 Ala. 279 (24 Am. St. 904). The relations which excite suspicion in transactions inter vivos — friendship, confidence and trust, affection, personal obligations — may, and usually do, justify and properly give direction to testamentary dispositions. All that can be said is that the existence of a confidential relation, such as that of guardian and ward, attorney, and client, religious adviser and layman, and the like, affords peculiar opportunities for unduly exercising influence over the mind; and, where the dominant party in such relation initiates the preparation of the will, or gives directions as to its contents to the scrivener, or writes it himself, — in other words, is active either in its preparation or execution, and is made a beneficiary thereunder, — a suspicion arises that the benefaction may have resulted from the exertion of undue influence over the testator, rather than from his free volition. The strength of this suspicion necessarily depends on the circumstances of each particular case.
Under the civil law, a will in favor of the person writing it was void. The common law is less strict, and, where the legatee benefited does not sustain a fiduciary relation toward the testator, but prepares or participates in the preparation of the will, this- alone will not warrant the denial of probate or an order -setting aside its admission to probate. In re Last Will of Hollingsworth, 58 Iowa 526; Denning v. Butcher, 91 Iowa 425; Reeves v. Howard, 118 Iowa 121; Hanrahan v. O’Toole, 139 Iowa 229. That the draughtsman who prepared the will inserted a legacy in his
Of course, the matter is not to be so stated to the jury, but their attention directed to the situation ás it is, as to whether the legatee-draughtsman is related by blood, his previous association with testator, the amount of the legacy as compared with the entire estate, and the like. Coffin v. Coffin, 23 N. Y. 9 (80 Am. Dec. 235); Stirling v. Stirling, 64 Md. 138 (21 Atl. 273); Yardley v. Cuthbertson, 108 Pa. 395 (56 Am. R. 218); Sellards v. Kirby, 82 Kans. 291 (28 L. R. A. [N. S.] 270, 272).
Even where the legatee-draughtsman is shown to stand in a fiduciary relation toward the testator, the inference of undue influence is not always to be drawn therefrom. It was so held in Trubey v. Richardson, 224 Ill. 136 (79 N. E. 592), where articles of little value were bequeathed to the attorney who prepared the will, and it was said that this was not sufficient to raise a presumption of undue influence. In In re Wells, (Me.) 51 Atl. 868, the gift of a relatively small sum of $100 to the attorney drawing the will was said to be entitled to little weight. In Bennett v. Bennett, (N. J.) 26 Atl. 523, the court said:
“By the civil law a will written by a person in favor of himself was void, but this was never the rule of the common law. By the common 'law the mere presence of this fact was never sufficient of itself to invalidate the will. The utmost effect it was ever entitled to in any case was to create a 'suspicion against the validity of the will of more or less weight, according to the circumstances of each particular case; in some of no weight at all, as where the gift*409 to the draughtsman is small in amount or qi trifling value; while in others, especially when coupled with other evidence of fraud or imposition, of very great weight, as, for example, where the will is drawn by the principal legatee, when the testator is very infirm, and his capacity is doubtful, and it is executed by the procurement of the principal legatee, when the testator is dying. ‘But,’ as was said by Baron Parke, speaking for the judicial committee of the privy council, in Barry v. Butlin, 6 Eng. Ecc. R. 417, 419, 1 Curt. Ecc. 637, ‘in no case amounting to more than a circumstance of suspicion, demanding the vigilant care and circumspection of the court in investigating the case, and calling upon it not to grant probate without full and entire satisfaction *that the instrument expresses the real intentions of the decedent.’ The doctrine just stated is the established law of this state.”
In Snodgrass v. Smith, 42 Colo. 60 (15 Ann. Cas. 548),’ the court, speaking through Campbell, J., after referring to cases affirming that a presumption of undue influence arises, said:
“The better considered cases do not go so far. The better rule is that this circumstance at most raises a suspicion, strong or weak, or, in some cases, of no force at all, depending on all the attending circumstances, which should, in a proper case, cause the court to require of proponent, in addition to proof of 'formal execution, other clear and satisfactory evidence, not necessarily that the will was read to or by the testator, but that he knew its contents, and was free from undue influence. Perhaps the rule has never been more clearly expressed than by the learned Baron Parke in the leading case of Barry v. Butlin, 1 Curt. Ecc. 637. In referring to a case like the one before us, and with respect to a contention similar to that made here, the learned judge said: ‘If it is intended to be stated as a rule of law that in every case in which the party pre*410 paring the will derives a benefit under it, the onus prohandi is shifted, and that not only a certain measure, but a particular species of proof is, therefore, required from the party propounding the will, we feel bound to say that we conceive the doctrine to be incorrect. * * * And it cannot be that the simple fact of the party who prepared the will being himself a legatee, is in every case and under all circumstances to create a contrary presumption, and to call upon the court to pronounce against the will, unless additional evidence is produced to prove the knowledge of its contents by .the deceased. * * * All that can be truly said is that, if a person, whether attorney or not, prepares a will Avith a legacy to himself, it is, at most, a suspicious circumstance of more or less AVeight, according to the facts of each particular case.’ ”
The rule is Avell stated in 1 Underhill on Wills, Section 137, in speaking of the situation Avhere the draughtsman is a beneficiary and takes under the will:
“The safer and more correct statement of the rule is that such a condition of affairs creates no presumption, but merely raises a suspicion which ought to appeal to the vigilance, of the court. Such wills are certainly not looked upon Avith favor. The court avüI cautiously and carefully examine into the circumstances which were attendant upon their execution, and Avill scan with a scrutinizing eye the evidence offered to procure their probate. No presumption of undue influence invariably arises from the fact that a will is draAvn by a beneficiary under it, which is sufficient to cast the burden of showing the absence of influence upon the proponent. It is a fact to be considered Avith other facts. It is undoubtedly a suspicious fact, but its weight depends, not solely upon its character, but upon the facts and circumstances Avith which it is connected.”
See, also, Riddell v. Johnson’s Exr., 26 Gratt. (Va.) 152; Griffith v. Diffenderffer, 50 Md. 466; Appeal of O’Brien,
No one could well claim that an inconsiderable legacy, as compared with a large estate, to a legal adviser for many years, who prepared the will, is unnatural or indicative of the exertion of undue influence. Something more or different would seem necessary in order to raise such an inference. This much merely excites suspicion, and possibly enough to put the court on inquiry; but to justify an inference of the perpetration of fraud, something unlikely to have been brought about by fair means, or contrary to what was likely to happen in the ordinary course of events, must appear. In other words, some indicia of undue influence must be proven, as a substantial benefit, out of proportion as compared with the entire estate, weak mentál or physical condition of testator, opportunity for imposition, whether bestowed on natural objects of affection and to those connected by the ties of blood, affection, or previous association, and other contingencies too numerous to mention. Undoubtedly, the circumstances may be such as that, unexplained, they would compel a verdict against the validity of the will or clause thereof assailed. This appears from numerous decisions bearing on the subject, collected in notes to Kirby v. Sellards, (Kans.) 28 L. R. A. (N. S.) 270, and Snodgrass v. Smith, (Colo.) 15 A. & E. Ann. Cas. 548. Such an inference is denominated in many cases a presumption of undue influence, and is treated as one of fact. This means, in the connection in which the expression is employed, no more than that a prima-facie case of undue influence of more or less strength has been made out, and must be met by other evidence in order to obviate a verdict so finding. What is to be inferred depends so much upon the facts of each particular case that we are inclined to
Whatever the proof, however, the burden does not shift, and it can never rightly be said that the burden is upon the proponent to negative the allegation of undue influence. Strictly speaking, the burden of proof never changes during the trial. Barber v. Maden, 126 Iowa 402; Gibbs v. Farmers & Merck. St. Bank, 123 Iowa 736. As said in the last mentioned case:
“When a prima-facie case is made out by presumption or otherwise, in order to destroy its effect and shift the burden of producing further evidence, the party denying it must produce evidence tending to negative the claim asserted to a point where, if no more testimony is given, his adversary cannot win by a preponderance of the evidence.”
That a state of facts justifying or compelling a particular conclusion of fact, whether this be denominated a presumption or not, be proven, is only an incident of the trial, exacting evidence to meet it in- order to avoid an adverse finding, and this sometimes occurs, though not often, several times in the course of a trial. But whether a fact be inferred from others proven or be presumed, it is not necessarily of any more probative force than were it established by direct evidence. Any of these standing alone may sustain a verdict. The burden of proof is not thereby changed, even though the situation be such that such conclusion or presumption or evidence must be met by other proof in order to avoid an adverse finding, and the jury may be so instructed, and further informed that the showing must be enough, at least, to put the evidence bearing on the issue in equipoise, but that, having done so, the burden 'of proof is on the party having the affirmative of the issue.
The Supreme Court of Maine, in Appeal of O’Brien, 60
“According to our rules of evidence and of practice, the burden of proof, in its technically proper sense, does not ordinarily shift from one party to the other so long as the parties remain at issue upon a proposition affirmed npon the one side and denied upon the other. The condition of things stated by the counsel in the statement of his proposition of law is undoubtedly a most important one, and would naturally and properly be entitled to much force and bearing upon the issue involved. It is undoubtedly sufficient, as a matter of fact, to arouse suspicion, and to require the closest scrutiny and most careful examination of all of the surrounding circumstances; but it -still remains a condition or situation of facts, the force and weight of which is to be considered in connection with all of the other facts and circumstances surrounding the case. Evidence showing the condition of facts referred to may or may not be -sufficient to sustain the burden of proof resting upon the contestant, according to the other circumstances of the case, and the determination of the tribunal which is passing upon the issue. Such a condition might, as a matter of fact, cast upon the proponent the burden of explanation, and the absence of satisfactory explanation would be an additional fact of more or less weight. But we do not regard it as accurately correct to say that upon the proof of this situation the burden of proof shifts from the one party to the other. This burden, upon the whole evidence, taking into consideration the situation referred to and all of the other circumstances, is still upon the contestant, who is bound to sustain the proposition asserted by him by a preponderance of all the evidence. Nor do we regard it as entirely proper to say that the existence of this state of facts as a matter of law raises a presumption of fact that undue influence has been exercised by the person occupying this*415 close confidential relation. The issue is one of fact, to be determined by the tribunal to -which it is submitted, and we do not approve of. a statement to the effect that any particular evidence is sufficient to change the issue from one < of fact to one of law.”
See Barry v. Butlin, 2 Moore P. C. C. 480; Weston v. Teufel, 213 Ill. 291 (72 N. E. 908). Other decisions express the same view. Baron Parke, -speaking for the Privy Council, in Barry v. Butlin, supra, after holding that the burden of proof does not shift in such a case, said:
“The strict meaning of the term onus probancli is this: that, if no evidence is given by the party on whom the burden is cast, the issue must be found against him. In all cases this onus is imposed on the party propounding a will; it is in general discharged by proof of capacity and the fact of execution, from which the knowledge of and assent to the contents of the instrument are assumed, and it cannot be that the -simple fact of the party who prepared the will being himself a legatee, is in every case, and under all circumstances, to create a contrary presumption, and to call upqn the court to pronounce against the will, unless additional evidence is produced to prove the knowledge of , its contents by the deceased. A single instance, of not infrequent occurrence, will test the truth of this proposition. A man of acknowledged competence and habits of business, worth 100,000 pounds, leaves the bulk of his property to his family, and a legacy of 50 pounds to his confidential attorney wlio prepared the will; would this fact throw the burden of proof of actual cognizance by the testator of the contents of the will on the party propounding it, so that if such proof were not supplied the will would be pronounced against ? The answer is obvious;' it would not. All that can be truly said is that if a person, whether attorney or not, prepares a will with a legacy to himself, it is, at most, a suspicious circumstance of more or less weight, accord*416 ing to the facts of each particular case; in some of no weight at all, as in the case suggested, varying according to circumstances; for instance, the quantum of the legacy, and the proportion it bears to the property disposed of, and numerous other contingencies; but in no case amount- . ing to more than a circumstance of suspicion, demanding the vigilant care and circumspection of the court in investigating the case.”
It follows that the court erred in instructing the jury that the burden of proof was cast upon the appellant to establish by a- preponderance of the evidence that testatrix was not dominated by Courtright in writing the will. All exacted, at the most, was that he meet the prima-facie case made against him by putting the evidence pro and con in equipoise. The burden of proof was on contestant at all times, and the jury should have been so advised. Though every case submitted to the jury is upon assumption that the evidence is such that a finding either way is warrantable, yet it is advisable, in a case of this kind, that facts from which a finding of undue influence may be inferred shall be pointed out in charging the jury; but, if this is done, attention should also be directed to those which fend to obviate such an inference and as definitely, such as long acquaintance, obligations, if any, to the beneficiary, and obligations, if any, to others; whether any secrecy was observed in inserting the clause or with reference thereto, conversations with the residuary legatee or others in the presence of testator when the ■ will was being prepared; whether appellant then advised said legatee that he could not draw the will because of being made a beneficiary, and that testatrix had refused to have anyone else do so; whether said legatee directed him to go on and prepare it, and the like. What we have said disposes of the contention of appellant that a case was not made out for the jury.