70 Vt. 352 | Vt. | 1898
The testator, Ira Barney, resided in Essex; his entire estate was from $12,000 to $13,000, which by the will in question he devised to his wife, Caroline, for life, with power to use the income and if necessary the principal for her support, and all that should remain at her decease to the proponent, Charles T. Barney, and his heirs. He appointed his wife, his nephew, Truman B. Barney, and said Charles T., executors.
Ira’s heirs-at-law were a brother, Solomon Barney, a sister, Mrs. Oakes, and some fourteen nieces and nephews. His brother and sister and several of his nieces and nephews lived near him; some of them lived in other states. His brother was old, feeble and poor; he had had domestic troubles, had lost his property, and Ira had assisted him in his necessities, and had solicitude for him; his sister had no property of her own and was supported by her daughters, one of whom was in comfortable circumstances; his nieces and nephews were generally in moderate circumstances, some fairly well off; his nephew, Truman, was a prosperous farmer and surveyor, and worth $5,000 to $6,000; the proponent was Truman’s only child, and was worth from $2000 to $4000.
Ira and his wife had no children. They exchanged visits with Truman’s family, and were more intimate with them
The testator also seemed attached to his sister and his nieces, Mrs. Blood, Mrs. Parker, Miss Oakes and Miss Lucia E. Barney, but there was little evidence in respect to his relations with or regard for his other relatives. Mrs. Green and Miss Barney were so situated in their childhood that they were very often at his house and as children were on pleasant terms with him. The latter was there oftener on account of another grandniece about her own age, who was brought up by Ira. Mrs. Green’s family moved into the state of New York when she was thirteen years old, Ira going with them to assist them, after which for thirty years they did not often see each other. During the last ten or twelve years of his life Mrs. Green lived in Burlington, and he was often at her house and manifested a kindly interest in her. Miss Barney was the only child of a deceased brother of Ira; she had obtained a good education by her own efforts, and was a teacher; she had no pecuniary means but her earnings; while she was at college in Burlington, from 1885 to 1889, she saw Ira often, and was on pleasant relations with him and his wife, and he was anxious for her success, spoke of her with pride, was interested in her welfare, and made her small presents; she went to Pennsylvania to teach in 1895.
The proponent is a lawyer, and at the time of the
The foregoing are the facts that the evidence of the respective parties tended to establish. All the evidence relative to the inception of the plan of the will, the direction about drafting it, the drafting and sending it for execution, Ira’s reading it, and his subsequent possession of it, and the evidence about the transfer of property to Charles, came from Truman and Charles. No other relative knew that he had made or intended to make a will. He was seventy-nine years of age when the will was executed, June 11, 1892. His wife was then living and was four years his junior. She died in February, 1894, after which Ira remained a few weeks in his house and then visited at Truman’s, and with other relatives and friends, until Sept. 1, 1894, when he moved his furniture to Truman’s and remained there until he died. The testator had a common school education, was close in business, of average ability, and retained his mental faculties well till within a day of his death, which occurred February 2,1896. It appeared that if he had died intestate, his brother, his sister, Truman, and Lucia E. Barnev would each have inherited an eighth of his estate, and the other four-eighths would have gone to the other nieces and nephews.
During Ira’s last sickness, from December 21, 1895, to February 2, 1896, the proponent and his father attended and nursed him, and one or both were in almost constánt attendance upon him. During this period the proponent received from the testator various sums in cash and in
The contestants’ evidence tended to show that Ira said to one witness, soon after his wife died, that he had willed his property to her, if she outlived him; that he should never let his brother Solomon come to want, but should not give him any property in his own right; also, that he should make a provision for his sister; that he said to another witness in August, 1895, that he was going to give his niece, Lucia Barney, $1000 out of $1200 which Mrs. Beach owed him and was to pay in January; that to another witness he said in the spring of 1895 that he should not pay out any more money for Charles; that he was going to have security for what Charles owed him; that he expressed indignation that Charles and his father were trying to induce him to buy a house for Charles; that he told the witness that his property was going to his wife, for life, and then to his brothers’ and sisters’families; that to another witness he said, in the summer of 1895, that he was going to make Lucia Barney a nice present of money, was going to leave his property so Solomon could have something, and provide for his sister; that he expressed discontent with living at Truman’s and an intention to return to Essex to live; that upon the witness saying to him she understood that he had given all his property to Charles or Truman, he emphatically denied it, and when told that it was a current report that he had made a will and willed his property to them, he said, “It is false, I have not done it;” that to other witnesses he denied having made a will in favor of Truman and Charles; that he said he had not willed everything to Charles Barney; that he said, “It is no such thing; I never have and never will.”
The only exceptions insisted upon are to the refusal of the court below to comply with the contestants’ first, second and sixth requests, and to the charge of the court in respect
The contestants’ 1st, 2nd and 6th requests are as follows:
(1) The jury are at liberty to infer from the fact that Charles T. Barney drew the will, or dictated the drawing thereof that he was attempting to practice a fraud upon the alleged testator in securing the provision made for himself in the will, subject to be rebutted by evidence that the will was the free and intelligent act of the alleged testator ;
(2) The jury are at liberty to infer from the transfers of personal property, claimed to have been made to Charles T. Barney during Ira Barney’s last sickness, that Charles T. Barney had attempted to practice a fraud upon Ira Barney in respect of the provisions made for Charles T. in the alleged will, unless the jury finds such transfers to have been the free, intelligent act of Ira Barney;
(6) In considering the weight to be given to the fact, that this will was drawn by the proponent, who takes practically the entire estate thereunder, that the testator was nearly eighty years old, that the proponent sustained to some extent a confidential relation with him and was not an heir at law, the jury are instructed that these circumstances form a ground of grave suspicion against the instrument, and call for clear and satisfactory proof that it contained the real intentions of the deceased.
The contestants insist that they were entitled to have their requests complied with, and that the court erred in not charging that the burden of proof was upon the proponent to show that the will was not procured through undue influence. The instructions upon this branch of the case were as follows:
■ “This inquiry which you are to take up, has three main divisions. In the first place, was this instrument which is
“On the first two of these questions, the burden is upon the proponent or the plaintiff. The proponent must show by a fair preponderance of evidence, which will be afterwards explained to you, that this will was executed with the formalities required by the statute, and that the testator had the requisite degree of mental capacity at the time of executing it. If the proponent makes out those two issues, then the will is to stand unless the contestants, the defendants, have shown by a fair preponderance of the evidence that, notwithstanding these facts, the will was really the result of undue influence, and was not such a will as Ira Barney would have then made if left to the exercise of the faculties that he had.
* * * -X- it * * *r
“The fact that one who takes a large interest under a will himself prepares it, standing alone is a suspicious circumstance ; whether it is a suspicious circumstance in a particular case is for the jury to say upon a consideration of that with the other circumstances of the case. In some cases that fact might have a very great weight, even a controlling weight, against the validity of the will. In other cases, it might itself be so controlled by other circumstances as to have only a slight weight, in fact, no weight at all, against the validity of the will. But a will can be sustained on less proof as to capacity and knowledge of contents where it is drawn by a stranger than where it is drawn by one interested in its provisions.
“I have already called your attention to the evidence in
The decisions upon the subject of the burden of proof in such cases have varied with varying circumstances. It is apparent that a rule of general application cannot be formulated. By the civil law, if a person wrote a will in his own favor, the instrument was rendered void. Dig. Lib. 48, Tit. 10, § 15; Lib. 34, § 8. In Paske v. Ollat, 2 Phil. Ecc. Cas. 323, Sir John Nicholl said: “By the Roman law Qui se scripsit haeredem could take no benefit under a will. By the law of England, this is not the case; but the law of England requires in all instances of the sort that the proof should be clear and decisive; the balance must not be left m equilibrio; the proof must go not merely to the act of signing, but to the knowledge of the contents of the paper. In ordinary cases this is not necessary; but when the person who prepares the instrument and conducts the execution of it, is himself an interested person, his conduct must be watched as that of an interested person; propriety and delicacy would infer that he should not conduct the transaction ; and a fortiori in a case where he is the confidential attorney of the deceased; and where the benefit conferred is to a considerable amount.”
“The presumption and onus probandi are against the instrument, * * * and the onus of proof may be increased
The rule in Paske v. Ollat was modified in Barry v, Butlin, 1 Curteis, Ecc. Cas. 637, where Baron Parke said that it could not be stated as a rule of law that in every case in which the party preparing the will derives a benefit under it, is the onus probandt shifted; that in general the burden is discharged by proof of capacity and the fact of execution, from which the knowledge of and assent to the contents of the instrument are presumed; that all that can be said is that when a person, whether an attorney or not, prepares a will with a legacy to himself, it is at most a suspicious circumstance, of more or less weight according to the facts of each particular case; the amount of the legacy, and the proportion it bears to the property disposed of, and numerous other contingencies demanding care and circumspection and calling upon the court not to grant probate without full and entire satisfaction that the instrument expresses the real intentions of the deceased. See Durling v. Loveland, 2 Curteis, 225, which approves the doctrine of Barry v. Butlin, but in which case a will prepared by a solicitor, who was appointed executor and residuary legatee, was pronounced against. Williams on Executors, 167, adopts this as the law in such cases. In Fulton v. Andrew, 7 Eng. & Irish App. Cas. 448, Barry v. Butlin and other cases were reviewed, and it was held that no finding of fact could be predicated as to the testator’s reading the will upon the testimony of those alone who got up the will and were largely benefited by it.
In Tyrrell v.Painton, L. R., Pro. Div. 151, decided in 1894, the testatrix had made two wills in favor of Painton, but became dissatisfied with him, and afterwards made another in favor of Tyrrell; a few days later Painton’s son brought her a will prepared by himself again giving her estate to his father, which instrument the testatrix signed, the draftsman and a young friend of his attesting it. These two witnesses
In Hughes v. Meredith, 24 Ga. 325, it was held that where the person who writes the will takes a large interest under it, and he a stranger to the blood of the testator, the presumption of law is, that the testator, although signing the will, does not know its contents; the onus then is upon him who propounds the will to rebut and overcome this presumption, by showing that the testator does know the contents of the will. In the note to that case, in 71 Am. Dec. 127, it is said: "One who writes a will for another is not thereby incapacitated from taking a benefit under it, as was the case under the Roman law; * * * but if the benefit is considerable, and more especially if the beneficiary is a stranger to the testator’s blood, the will is to be viewed with strong suspicion and jealousy, and clear proof that the testator knew its contents, and that it was in accordance with his intentions, is required to sustain it, mere proof of testamentary capacity, and of due and formal execution of the will being insufficient,” and numerous authorities are cited in support of this statement of the law.
In Eastis v. Montgomery, 95 Ala. 486: 36 Am. St. R. 227, the proponent of the will was the son of the testatrix, executor of the will and one of the chief beneficiaries; he had been the testatrix’s general business agent, and was active, not from personal motives, but at her request, in assisting her about the execution of the instrument; held, that these facts did not, combined with confidential relations, shift the burden of proof as to undue influence upon him.
In a later Alabama case it was held that where there is evidence that confidential relations existed between the testator and the proponents, who were the sole beneficiaries under the will, and that the latter were active in and about
The following was held in Maddox v. Maddox, 114 Mo. 35: “When a confidential relation is shown to exist between a testator and the recipient of his bounty, his influence is presumed to have induced the bequest, and the burden of proof is cast upon the beneficiary to explain the transaction and establish that it is reasonable.”
In Post v. Mason, 91 N. Y. 539, the testator had full testamentary capacity, the will was drawn by an attorney who had for a long time been his counsel, and the will contained a legacy to him; held that this fact alone did not raise a presumption of undue influence.
Andrews, J., in matter of Smith's Will, 95 N. Y. 517, clearly applies the law to a given case as follows: “Undue influence, which is a species of fraud, when relied upon to annul a transaction inter partes, or a testamentary disposition, must be proved, and cannot be presumed. But the relation in which the parties to a transaction stand to each other, is often a material circumstance and may of itself in some cases be sufficient to raise a presumption of its existence. Transactions between guardian and ward, attorney and client, trustee and cestui que trust, or persons one of whom is dependent upon and subject to the control of the other, are illustrations of this doctrine. Dealings between parties thus situated, resulting in a benefit conferred upon, or an advantage gained by the one holding the dominating situation, naturally excite suspicion, and when the situation is shown, then there is cast upon the party claiming the benefit or advantage, the burden of relieving himself from the suspicion thus engendered and of showing either by direct proof or by circumstances that the transaction was free from fraud or undue influence, and that the other party acted without restraint and under no coercion, or any pressure direct or indirect, of the party benefited. This
The court proceeds to say that this rule seems to be confined to cases of contracts or gifts inter vivos, and does not apply in all its strictness; at least, to gifts by will, and, applying the rule-to the case in hand, says: “The mere fact, therefore, that the proponent was the attorney of the testatrix did not according to the authorities cited, create a presumption against the validity of the legacy given by her will. But taking all the circumstances together — the fiduciary relation, the change of testamentary intention, the age, and mental and physical condition of the decedent, the fact that the proponent was the draftsman and principal beneficiary under the will and took an active part in procuring its execution, and that the testatrix acted without independent advice — a case was made which required explanation, and which imposed upon the proponent the burden of satisfying the court that the will was the free, untrammeled and intelligent expression of the wishes and intention of the testatrix.”
In Carroll v. Hause, 48 N. J. Eq. 269: 27 Am. St. R. 469, the court said: “Against a beneficiary thus having a testator under his control, with power to make his will the will of the testator, especially in a case where the testator has made an unnatural and unjust disposition of his property, the law wisely presumes undue influence, and puts upon the beneficiary the burden of showing affirmatively that when
In Richmond’s Appeal, 59 Conn. 226, this rule is stated by the court: “When the person who drafts a will, or participates in procuring its provisions from the testator, also occupies a relation of special confidence toward him, and would not be a beneficiary in the absence of the will, and is specially benefited by its terms, the presumption of undue influence arises, and the burden of proof is on him to show that the will was executed freely and without his influence. In such case, direct and positive proof that the beneficiary took part in procuring from the testator the terms and provisions of the will is not required to raise such presumption ; it may be inferred from surrounding circumstances.”
In 1 Red. on Wills 516, the law is thns stated: “Gross inequality in the dispositions of the instrument, where no reason for it is suggested, either in the will or otherwise, may change the burden, and require explanation on the part of those who support the will to induce the belief that it was the free and deliberate offspring of a rational, self-poised, and clearly disposing mind.” See Schouler on Wills, §246.
Woerner on Administrators says that a presumption arises against the will when the person who drew the instrument or conducted its execution is himself benefited by its provisions; very clear proof of volition and capacity, as well as of knowledge by the testator of the contents, is necessary in such case to the validity of the instrument. But if the beneficiary writing the will is a near relative, who would take a considerable share of the estate if there were no will, the presumption which might arise against a stranger is not applicable to him.
In Wisconsin, Minnesota and Massachusetts, the general rule is stated that undue influence in the execution of a will
This subject is elaborately discussed in the notes to the In re Hess's Will, 31 Am. St. R. 665, and these general rules are stated as deduced from many cases cited:
“He who contests the admission to probate of a will, or seeks to set aside such probate after it has been granted, on the ground that the will was procured by undue influence, must assume the burden of proof, and establish to the satisfaction of the court or jury the existence of such influence, and that the will is one of its fruits:” * * * “And when the testator is shown to have been of sound mind, no presumption of the exercise of undue influence over him can be indulged, even though the will is, in the opinion of the court or jury, unreasonable and unjust, and such as ought not to have been made. At least, such is the rule supported by a majority of the cases upon this subject.
It was held in Denny v. Pinney, 60 Vt. 524, that when the due execution of the will, and testamentary capacity of the testatrix, were proved, the law presumed she intended that the legal results of her act should follow; hence, on the issue in regard to undue influence the contestants went forward. This is a statement of the general rule of evidence in the probate of wills.
It must be borne in mind that in all cases the burden is upon the proponent to show that the instrument is the last will and testament of the testator. Williams, Exr. v. Robinson, 42 Vt. 658; Roberts, Admr. v. Welch, 46 Vt. 164. In general the law presumes this vital fact from the proven facts, that the instrument -was executed by the testator with the formalities required by law, and that he was of testamentary capacity, so that affirmative proof that the will was not procured by the undue influence of others is not required. But where the relations between the testator and the proponent were confidential, and the proponent drew the will, taking the entire estate or a large bequest and would have taken nothing as heir, while near, needy and deserving relatives take nothing, then the law not only regards the transaction with suspicion, but the burden should be cast upon the proponent to show that he did not, nor did any one in his behalf, unduly influence the testator, and that the instrument propounded is the testator’s will and not the will of another person. It is of course equally fatal to the validity of a will whether the undue influence was exerted by the proponent or by another person.
It is true that in many of the cases, but not in all, the fact of confidential relations is an element. Other circumstances may cast so much suspicion upon the transaction as to require affirmative proof by the proponent. In this case the testator omitted from the provisions of his will all the persons who were the natural objects of his bounty — some
Judgment reversed and cause remanded.