*1 SSá BURRIS, Henry Deceased.
ESTATE of WHELAN, Petitioner B. t Responden
v. Burris, BURRIS, Frances
Hеnry J. Thomas J. Burris, Burris, Wallace William Albert Special Burris, Sterling Walker, Ad Burris, Leo Estate ministrator McCann, Nar Deceased, Gertrude Mildred Burris, Burris, lock, Loren Gerald Church of Con St. Mark’s Ap Respondents Dakota, way, North pellants .
No. 7487.
Supreme North Dakota. Court 26, 1955.
Oct.
Rehearing Denied Nov.
n Day, Stokes, Vaaler, Gillig, Forks, Grand Whitesides, F. Park River, Lorene respondents ápp’ellants.
Philip Bangs, Forks, peti- R. Grand respondent. tioner and SATHRE, Justice.
n contest in which the valid This is a purporting to be the ity of instrument an testament of will and last is involved. deceased is the Mártha B. Whelan the will beneficiary sole and is the the testátor will and 'terms nominated under thereof. The contestants are executrix ‘as and the children of the testator seVén sons . The will ad- sons two deceased of' 'county probate in' the court of Mittedfo Dakota, 'County, upon North Forks Grand proponent Martha B. Whel- petition appointed also executrix who was an the will.. objections to the .filed contestants рrobate on fol- admission-of
lowing groundsi, signed by using the testator 1. That ’ n a matk. unable to time on he was provisions induced from That its take care of himself. exercised undue influence .,. ; proponent; and tes- daughter of the B. Whelan *3 had proponent the of the will left tator and are un- of the will That the terms 3. ’ in before the death of her mother home natural. employed for some time in 1933 and was county its order admit- The court made Grafton, There- a bank North Dakota. probate appointing the ting will to left the state and went after she proponent as executrix- thereof. she was married state of'New York where - A son of- the her home. and established appealed from the order contestants The Burris, in New also lived Charlie district court of county to the court of the Upon of His illness hearing father’s York. County. case was tried Forks Grand . Money for back visit him. he came jury returned jury. a to the court plane transportation by sent to the invalid, the will was that a verdict B. Whelan and- she to- daughter Martha' the testator not will of the wife of Charlie- Burris gether with judgment was entered Henry Burris and plane by to the home of father at went propo- Thereafter upon the -verdict. Conway, Martha B. North Dakota. Whe- .judgment a notwith- made motion-for nent Conway in lan arrived in November 1948. was thereafter verdict standing the which were that she Arrangements then made by The con- the' court. granted district care his home was to-take of her .father at appealed from the order of the testants Conway and was to in that she receive $35 proponent’s motion granting court district for her-services. . per week notwithstanding the verdict judgment judgment vacating order from the Conway stayed with' her father at She upon the verdict. entered September of him until' and took care 1949 City they moved tо the of' Grand when contestants, by contended first It they lived until her Forks where father’s will was not and exe- subscribed They 1951. rented a house death June law, provided by that the testator cuted in the record as known the Fladeland house. subscribing instead of signed mark They in the Fladeland lived house until thereto. Second that the will was name some time in the summer of influence, upon exercised undue the result of Maple a house at they moved to Ave daughter Martha -They -Maple continued to live at nue. . beneficia-ry the will and. sole thereof. house for some after Avenue time which they moved to a-house owned by one Jane shows that The record testator was one of North, located at'1629-6th Avenue Malone in early County settlers Walsh having -Forks, 'North Dakota. While the Grand vicinity of the town of in Con- t}ie arrived n ha and''his Mart were engaged farming in way 1882. n living Grand Forks, Martha’s husband or in on his and lived home Con- farm living and son also with them. Joe During way time until he had subject The will of the-testator which is the quarter sections acquired five of land and contest was executed on this November accumulated a considerable had amount 22nd, 1950 at the house Maple located at bonds, personal property consisting cash, prepared by It was DePuy Avenue. W. T. and stocks. Grafton, lawyer at North Dakota. Mr. DePuy testifying for the died in 1933 and His wife from that time .stated proponent, 22nd, shortly lived more or less before until'1948-he alone. A that November. Burris, unmarried, telephone son, call, spent evidently who was received a from Will Whelan, stating time with his during father Martha B. that her considerable happened see him. He time. 1-948the stroke wanted see paralysis side, personally resulted on -November leff my be included the indebtedness of the execution before 21st the sons to following her that amounts time he was told me will аt which He drove to-wit:” him. wanted see her father of No afternoon Forks
to Grand Then follow the names the sons and Ryan stopped at the 22, 1950. He vember amount each one owed him. The telephone after some hotel and made calls ., provided further: Maple house drove to the which he delibérately provide “I omit to for' arriving at After North. Avenue my sons, Burris, Henry Thomas J. Leigh he called Dr. house Avenue Maple William, Burris, Frances Albert *4 requesting him come to Forks of Grand Burris, Burris, Wallace and Leo J. pre the of testator. had the home to my grandchildren Burris for Mil- and of C. Peterson Grand viously called F. McCann, Narlock, dred Gertrude Loren requesting him to come to Forks, lawyer, Gerald Burris and F. Peterson the testator. G. of the home Burris.” arrived at the Fee Charles H. one and shortly after the ar house Maple Avenue appoint- Then follows the nomination and DePuy Leigh arrived a and Dr. Mr. rival of ment of Martha. B. Whelan be the exec- to DePuy, four men These later. minutes few testament, utrix of the last will and “re- then Leigh went Peterson, and Dr. Fee voking made, all former wills I she to serve testator, Henry the bedroom of into the without bond.” closed the Peterson bed Mr. and Burris n prepared DePuy After the was will Mr. with the testator They visited door. room it to read the testator and the testator de DePuy then and -Mr. minutes a few clared to the witnesses that it was his last him to he wished do. He what him asked requested sign will and them to the same wished,to a will and replied that he .make as witnesses thereto. At the time that the prepare it for DePuy to him. Mr. wanted prepared the sitting 'will testator was legal him a blank DePuy had with form Mr. pillows up propped up in bed by behind his pad. He made notations on scratch and a prepared the will back When and instructions and di pad of the scratch his been to- the DePuy read Mr. by the testator. Thereafter given rections pad in placed the scratch front of and him hándwritirig will in his in the prepared he attempted sign thereon, to his he name but given by instructions the accordance paralyzed left side was his and because of gave the legal The testator the testator. right in his hand he was extreme tremor property by owned the real descriptions of legibly. his name The unable write gave the names of of also all and he placed in was then front of him he and n grandchildren, pen; and of his diagonally a mark with a drew his children first, payment position changed of the will.was then for the of all and provided diagonally line resulting he drew another in expenses all of his debts. funeral his DePuy signed cross. then his Mr. name bequest provided for $50 It next mark of as witness to the All testator. Church, Conway, North Dakota Marks St. men, Fee, DePuy, four Peter repose of the souls of himself and for the signed Leigh sоn and will as' wit Dr. provided The will then relatives. deceased request of at the nesses testator his ws : follo as presence presence arid iri the of each other. devise, bequeath testimony Charles my Fee and give, C.’ F. “I Peterson, Whelan, testifying as Martha B. all witnesses for daughter, my property, the-- proponent,; both same real effect as the residue ' testimony every name, DePuy. -Mr. given They personal, nature description wherever that the will read to the situated stated testator DePuy arid-that the same to he hold Mr. declared that I was his-last will- Whelan forever. re B. further testament'.and sign my quested as witnesses estate them that included shall thereto direct provides -56-0302, presence and Section NDRC sjgned.it and that Dr; how wills be executed and attested. must presence of the othe.r-witnesses.. in. It reads as a medical doctor follows: that he was Leigh testified had re he Forks and that at Grand residing will, “Every than an olo- other years. He stated several there sided will, nuncupative graphic will and a Henry Burris thé' testato'r knew that he must bé as executed and attested fol- he care of and that took life time : lows entering occasions-before several him-on present in the bed he was navy;' - subscribed at “1. It must be. the-, of the testator will" himself, where room end thereof signed his name presence, executed person, or some in his thereto; in the room direction, witness by his must subscribe instrument-by sign Mr. thereto; and-saw name not, whether or He was asked mark. “2. It must be subscribed the' placed mark-on time he at the presence witnesses, attesting or' instrument, mentally competent to *5 by the acknowledged be replied opinion tliat in his Leigh Dr. which by by them to have been made or competent. mentally Leigh Dr. he was authority; his the will was that at time the further stated left side o"f the testator the executеd testator, at the time of “3. The sub- un paralyzed and that he was completely same, scribing acknowledging or the left-hand; his he had a use able to witnesses, attesting must the declare to right-hand.; tremor of his very-severe .that will; that the is his -instrument his he object in. 'hand he had an it--was.,difficult “4. There pipe must be two attesting but that thought was a tremqr witnesses, each of whom must get sign it to"his His him to- mouth. his - name as a witness at the very severe and he was unable end of the will, request, the testator’s accuracy.- hand with On his control presence; his Leigh Dr. examination stated cross Henry Burris, on had called A witness a written must “5a 22nd of the November twice on write, name, place with his his of resi- quote of .the -will. from his We execution ; dence testimony: person “6. A who subscribes a. Henry saw So Burris by testator’s name' his direction must day pf the 22nd on twice November? write his own name as a witness-to' Yes. A. will. violation A of this subsection , -you Henry-. And didn’t see . validity does nоt affect the of the will.” (cid:127) again first, until then March Burris 1-0149, 4 of Section Subdivision NDRC right., That is A. 1951? provides: 1943 Henry saw “Q. So when “ ‘Signature’ ‘subscription’ or day, physical what’ was shall on person include ‘mark’ when the as far as health cannot was con- condition write, being name written a ? He was not near- it sick man ? cerned ‘ person relative, by and written a who is writes Sickness course.’ own name as a witness.” age. with old sick d your far-as “Q. And 730¾, Compile as observation Section Laws of 1913 his condition (now 1-0149) was that —he was there Section by considered McKee’s, time, old -years at that he 91 was an this court the case of In re Yes, Estate, man? A. 86, old 652, that.” 72 4 N.D. N.W.2d 656. Im proponent then rested. that case it said:
889 opportunity to exercise That the us that seems to that. "It "2. ' ' existed; which'' with of Section portion enacted, concerned are here we 3;, disposition there was exer- That a .to signa- safeguard purpose was to its it, cise , signature a hy It made mark. tures prima facie witnessed to be hy appears mark thus 4. That result .the signature as worth the same effect of such influence. other exclude did not writing. But it having established by mark alone. proof signature' of a prima facie case the burden writing is or other 'So, where a will thereto, preponderance aby contestants to establish is signature and the offered , the four elements evidence each'of provided in (cid:127)mark, witnessed supposition Suspicion required stated above. statute, proof is further no require sufficient undue influence not signature maker’s is the the mark jury question the submission challenged.” fact is unless.that Bayer, In re Estate of sustain a verdict. 928; In Estate 227 N.W. re Neb. signa therefore that We think Bainbridge, Neb. N.W.2d Burris, by was suffi mark ture 5 . 6 2 comply requirements cient opinion are also of the statute. We questions thus determine the .. order .to , respects -execution of in other necessary to..review raised it require complied the formal the will witnesses, testimony somewhat in *6 quoted 56-0302 herein. ments of Section voluminous, Thp detail. is the trial record by the contestants question was raised No tyelve having in district court consumed testamentary the capacity of te tó the as , days. twenty witnesses testi- More than ; r stato large case and of ex- number fied .the types hibits different and character were to the only The issue submitted introduced evidence. by therefore jury the trial court was Whelan was proponent, Martha B. Henry will Burris whether or riot the by for cross examination called contestants undue influence exerted was the result of under statute.'- stated that when the She Whelan, upon the sole him Martha B. her take care of father she came to beneficiary jury found thereunder. September had'five-quarter her father 1948 the will invalid the result of was and land,--some bonds;- mortgages sections-of Proponent such undue influence. made a and'cash; a housé in the álso had judgment notwithstanding motion for the Conway only home. totvn of which was granted and verdict. The motion was the that "she with her stated lived She held, court as a matter law trial that the there, Conway and took of him until care at evidence was insufficient to establish un 1949; living the fall that while at Con-
due influence the judg and way Stringem employed was one Mrs. will holding ment valid was entered father, taking her her in care of assist only question accordingly. The for' deter employed a and also Mrs.- Siridal she mination therefore whether the evidence September she In 1949 moved with Brown. was sufficient to raise an issue of fact for city of Grand Forks and her father jury question submission to the on the known in the as the a' house record rented The general undue rule is influence. paying per rent at Fladeland house $125 nеcessary the elements to be established They July until lived there 1950 month. rejection to warrant of a on the Maple they moved to a house when 719 ground of are: undue influence the will of Avenue 'where prepared and executed November subject That the testator was to such influence; her father gave the fall of 1950.’ thought Conway. living away She been from here she home at deed money. it was time received some she Leo stated that her brothers Will.would house Fladeland come Miss testified further: Malone argu- they came there were trouble ' ments. “Q. you (Martha Did hear her Whelan) talk to father on state or the contest Malone, a witness for Jane during several time that occasions She as follows: in substance ants testified Maple were at house? employed .registered nurse and was a repetition. (Objected Yes. to as She care of the to take B. Whеlan answered.) has said that. She has Grand moved to after he was “Q. you state to the Will court Forks; employment started her that she jury- you what heard Martha Whelan September and continued 1, tell her ? She told him father A. the testa employment death of until attorney he should an come 25, 1951. would tor on She come June provide make a-will her. telephone upon to the home of Whelan, usually between calls from Mrs. — you hear Did her make morning. she first and- When 9:30 in the statement as to what should week, stayed a she whole went there contain, what should in the will? employment averaged four after that her Yes, A.' days stated that five week. Shé good jury for á man testator’s Tell the court and condition poor eyesight your own Mar- age, words what heard but impaired. say she ar When tha Whelan her father hearing ? ‘ him his morning gave rived Bangs. “Mr. If fix the could him, care of otherwise took breakfast and appreciate time more I definite would the bed. he was to leave Mrs. unable it. away first week (Martha) employed, Miss Malone period of “Mr. Stokes. Within a *7 September week be the would first were There several con- three weeks. Mrs. Martha Whelan return of After period during that three versations many be the witness heard conversations- weeks. their Mr. and Mrs. Whelan tween .and , had to Jr., Bangs. and the conversations do “Mr. Is that son what Mrs. Henry property or estate of Whelan said? .of these testator. The first conversa “Mr. Stokes. Yes. place in the took Fladeland tions house. had conversations were Sometimes Bangs. How long “Mr. before? presence testator and sometimes get Can’t we it fixed? themselves. The. between just witness Q. you any “Mr. Did hear Stokes. you state the- court to and asked: “Will like, the day conversation before this conversation was? jury what A. day which the or the will was made ? Well, given she hеr father had said so .that, say day I won’t A. before. money her brothers and she to much had any .money, only her salary not received say you “Q. day You heard it the right thought she she should have a and to before? A. Yes. money had, her father prop whatever you “Q. you And would state what erty.” say Martha Whelan her heard to day ? father the before That subsequent to a would be reference conver- With Well, day Martha Whelan and 21st of November. A. between sation Miss Malone, said she him the men coming Martha had not told were she received them, money father, there, any from her named and she said there is had ‘' time'you Generally for ¾ ? providing heard A. made going a will to n nature; the same her. ' “Q.- you Bur- state court you to the “Q. Did overhear .Would jury you what Whe- say anything during the conversa- Martha ris heard (cid:127) lan tell her Well, remember. or to father tion? A. I don’t father A, Well, about her brothers ? she place took conversation This . any they anything didn’t care about you conver- 21st. hear on the Did didn’t, they him, see come to prior to the 21st? any day sation on they got money they had all the could (cid:127) ; A. 'Yes. they from him didn’t care it. about it. That was about will between repect "Q. With to Henry Burris? "Q. say’ anything Did she Yes. any guardi- at time these about Oh, anship proceedings? yes, she A. you state “Q. And would -the told him about .it. you jury near as—can as court and approxi- any particular or give date ’ say anything And did she prior the 21st on mate date her father in with those as connection you conversation? this further heard boys trying what the were to do conversation A. some There trying say or not to do? A. She did weeks before every at least two for trying put were him an 22nd. people’s old guest or homei home ’ n as you state to “Q. Will court Malone testified -further that- she Miss what in substance nearly can Maple came 'the' street house on thе Practical- was ? that conversation morning of November 1950 at about ' same, made be a will ly there must morning; she'gave 9:30 n providing her. breakfast, gave testator his also brandy eggnog whiskey him an time “Q. Now ever did . it, that Martha Whelan said that the Whelan, any state- make hear Martha better, eggnog would make her father- feel her brothers? about to her father ment to make the will. better able A. Yes. testifying Louis Leff contestants state- where those “Q. And county judge been stated that made, A. At house? at what ments *8 to-1953; County that from 1941 he Walsh they in that I ever lived all the houses Henry acquainted with Burris the them. twenty him- testator and had known for her you. that heard “Q. And so more; years that between 1st or June concern-, to her make statements 13th, he called Mr. Burris- on June they living ing brothers while her -guardian in connection with certain September in Fladeland house at the in proceedings his court commenced for A. Yes. and Octоber? purpose appointing guardian of a for said Burris; he that made another call any particular date there Is 29, on or on the testator about June time can set any particular or Forks; Whelan, Martha B. at Grand this of any particular conversation to present will was in proponent of the I could not set occurred? A. nature and the room with Mr. Burris witness any date. called; that he he discussed with affairs; Henry-Burris his business that she 'that the statement Was question every he asked Burris a her timé Mr. her father about brothers to made Martha, daughter, would answer or was for on different occasions different testimony: quote from his every the same him. We of nature generally it will, times.” let talk about old made a us or you saw State what “The Court: said; day, Sun- following him He saw Mrs. next A. Whelan Mrs. what stayed until the afternoon and in guardianship Whelan .said he stated evening. ten that He necessary, be- about hot trusteeship was several, -his sister at- had conversations power of had was—she she cause their father’s about taking Martha that afternoon she torney .from business, “remem- affairs. He was asked counsel arid his'property care of things some some of the That ber very satisfied. very, well he was thirigs Mrs.' said? what he said, and that she is’wh'at ' n ' said. times, I Well, I said several “A. =Q.. .you Can, once, get to let us “Miss Whitesides: than said more it she said anything else that .appointed guardians Dad’s estate. think of for her, stated that, pointed also Á1 She out or he said? after I told And money her, had never I said not have to fehat would received she she father, and that money, her property from she would worry about the brothers, Burris, or her money of Mr. be get sons and the bills would from .their shares already anything paid.' had And I don’t know received time high about just rep- a say. That advances more I can something receiving herself. talked she of а that stuff. We etition lot afternoon.” ' all the ' anything you think “Q. Can Leif, or Mr. else, that was said Mr. until Decem- He did not return Canada suggested Mr. I said? Burris 12, 1950, stay he during visited ber Burris told Mr. and I his father several times. , hospital, that his ex- go to should .a Mrs. wife of testator's Rose cheaper being be than penses would in that she married Tom testified a as he son:Tom private home care .taken Kolin, 1921; Mon- that their home was kept present rate then, if he they and that had lived there since spite tana expenditures that of his .of' 1921;' her father-in- up that she had known holdings .would a he .property end law, testator, 1920; prior to 1939 county since welfare case.” and be pauper, Dakota.; they Conway, at she lived North testifying for contestants Harry Burris her father-in- husband had visited son stated every law, year Henry Burris since once Whelan; Martha B. a brother of Montana; they in 1948 testa- moved to Canada, Alberta, Lethbridge, - he lived Montana and visited with tor came to He came to Canada having moved month, brought him back them fall Dakota back North Conway. took him She and her husband trip to visit third which would he celebrated his 89th or Canada where Lethbridge. he moved since- father- birthday. 90th and her husband She came home of his brother Leo at arrived funeral. Dur- to Grand Forks testator’s 18th 1950. On November November ing the time were Grand Forks *9 Grand Forks and following he went a funeral she had conversation testator’s He Burris. said on Iris called concerning testa- Martha B. Whelan with weak, he was hard was old his- father quote property. from her testi- tor’s We poor. eyesight and his His hearing of mony. at home Whelan Martha not. sister “Q. During the you time that were He his father talked about day. funeral, did you here for Mr. Burris’ and his father said: business his father’s change my have discussion with Martha “Well, I will have to guess I - He, concerning prop- not Burris’ them are satisfied”. Whelan Mr. will; of some аlready erty?. A. “I Yes. replied: said that he Harry, incompetent. I am you dis-. should declared “Q. have that Where did capable my (cid:127). taking under- not of af A. In front of the care cussion? fairs.’ And he little talked taking-parlor, Norman’s. you while and said aft he ‘Would look “Q. Forks. A. Where? Grand my er affairs?’ And I-said .‘NoI would stopped rather not.’ And he and he was'present"at And who said, ‘I you’. don’t blame he Then and I. time? A.. Just n asked anyoneT thought me if I knew n Q. Bur- Mrs. “Miss Whitesides: he I get'and. thought could told him-I. ris, you a conversation did have might John'Kennedy, get be able to ; A. Mrs. Whelan? Yes. his, as he was a relation .look, might be able after his affairs. Burris, Q. Whitesides: Mrs. “Miss n Then I would he-asked me-if see Mrs.' nearly John state words it as Yes, Kennedy, said, and I I would. yourself possible. A.' as Whelan or house, Then as I left the or left the way like the She said didn’t n room,'I went in and told Mrs. her, Harry boys treating were he wanted-me to see Kenne had come here from John Canada down I dy, and seeing didn’t care much about And I I said didn’t talked about her. him, and. she said she would send him boys, knew how the. because I blame post Add I didn’t talk card. Grandpa always property felt about John Kennedy all at aboút it.” he was and it tak- and how careful money keep him in ing much too Mrs. wife McCann of Ted Mc- Lorene DePuy Grand Forks. And -she Cann testified that she was with' her hus- her were do- that him told her band at the testator in ,to March visit ing just exactly boys would have as the 1950, that in she was the kitchen and that done.” she heard the conversation between the husband, testator' and her and that Martha further that she and witness stated Whelan was back and forth between testa- in Conway her husband came to tor’s bedroom and kitchen. Forks in March 1950 came to Grand the testator. visited her father-in-law .Will of testator son in testified follows: He was substance as born on his Mr. Ted McCann testified for contest- Conway; that father’s farm at his father ants that he married a niece of Conway lived on his farm near inor Con- in 1941 and knew him since that time. way until Grand he moved to Forks in the Forks knew that testator moved to Grand fall of He said his 1949. father’s health that he and his wife fall poor, in one eye he was blind and his March visited testator hearing impaired. get He could not were there at that Whelan and husband every place, and had to be lifted around and had a time. He visited and he was moved to Grand Forks with him at that conversation time. We fall of where Martha and testimony. quote from and her son lived her husband with him. Q. you Conway $1,000 Whitesides: Did While testator was at “Miss money placed Mr. at subject in the bank a conversation house you time the Fladeland Burris and his check brother Leo Will ? purpose, paying expenses Yes. March for the of. money their father. taking care of Mr. Burris’s And will state put bank in the fall as can remem- words near exact *10 At, spent March 1949. it. was-all him and I ber? A. conversation moving the were about time that had? Forks some testator Grand discussion Leo andWill Burris and Well, was had “Q. I Yes. A. between went signing the know, :Ted, as checks I Martha ‘You he said Whelan there DePuy, utors.- Mr. Whelan Martha $1,000but Mrs.-Martha Whelan on the said testator the witness in the rdom "should Leo agree that Will' and not did ' * at that time. sign them. -Kennedy further that on testified Mr. that when Leo testified Will October, at about the month Con- 1950 at their father in March called on he Dakota, Henry way, North Forks, Mrs. Martha Whelan Grand Burris, that “he his business affairs said into- went their Will and. Leo present; up, sentimental that, straightened ánd that for- kind of “he was father’s bedroom might they would wish to reasons it be that up asked They him sleeping”. woke homestead, farm, keep the Burris thing the first he and about him “how was” Btirrises, name of the and he had stipulated look said,'-“Leo, -want-you-and he I 'Will Burris, given privilege be that Will _and -up my there” Mrs. Whelan after -farm the farm he purchasing if so desired.” We farm, “you looking are not after said quote testimony: from the Leo asked looking we after that -farm”. are father, you your taxes are “Do know n say'anything Did he else at that paid this-year’’? you “Do know not Yes, you time remember? A. he money crop?” gone for and he said said that balance of it would $3,500. then asked they figured it at Leo (cid:127) equally I" distributed'. make a Could my (Martha) Mrs. Whelan “Didn’t that, Bangs? correction of Mr. “I bonds” and Leo: said have some believe Bangs: Surely. I A. worth of bonds. When it was around $3000.00 “Mr. price balance, they?” they made reference to the Mrs. said Where are stipulated supposed apply Well, sold, sell had to them. Leo are Whelan, Will’s share.” “My he father had told Mrs. said stock, work of A. T. & T. about $2100.00 Kennedy further Mr. testified where is that”. “She said that is sold too”.. the testator at the had a conversation with quoted saying Mrs. Whelan as that she He house, Fladeland in Grand Forks money; she did not know should follows,: part of October as latter from, coming it was and' that she where get boys. more than should his 'con ‘ state to the court and Will father, versation with his he' juryas nearly Henry in the words of quoted having him as said Martha Burris, he said at that time ? what driving crazy asking Whelan was time, he said to me at Mr. Burris money. argument Will’s with Mrs! Whélan awfully pleased you ‘John, I am said by his statement that he ended would never called, something there is I because long the house' come back to as the you’. wish' to discuss said were there. Whelans ‘They change my are after me here to him, said,. I I T thought And told will’. Kennedy, residing Minto, at North John cape all taken you had that of’. And Dakota, testifying for contestants stated he said, too, thought I he T did but it don’t Henry Burris, the had known testator a said, please them I ‘My here.’ seem time, long- nephew; that he was testator’s you, Henry, would be advice to Uncle with him and had visited on numerous' it, because, said, do ‘I not to we can’t Conway. He visited with the occasions please people living while we are the Fladeland testator at house in Grand why be concerned after we are dead.’ 1950,he April was shown Forks defend- thought And he answered—he for a C, previously exhibit admitted in ants’ evi- answered, said, he moment and (cid:127) dence, was a codicil executed ‘John, get along can’t with- know.I ” testator; present he was and saw the ex- out Martha.’ testator,' by the ánd the signed hibit witness, Kennedy, He stated further that he told he wanted Whelan, Harry and Marta Whelan to be exec- son
«95 will, “Q. changing, Brooklyn, That- made reference to back is. New ¡ jfwill he, is, Kennedy, him not to do so and If it told -A. with York?. be.here know, you things, I “I would do don’t Martha: advise whether Mr. any d$te this late no changes Puy same because Du it. .has Martha would contested”. That doubt “Q. The your car was but father’s not “I don’t do Or said: care whether your it was in name? It had to be A. anything boys gét don’t out providing the way, yes, to be safer. of it.” “Q.' you disposed car, And of that in re- Mrs. Martha Whelan was called n even though your fit was father’s car ? testify Her buttal to in her own behalf. given A. He had it to me. testimony was in direct' conflict with'the testimony of the for contestants witnesses “Q. And when give did he it to reference to the statements attributed you ? gave A. He personal me all his regarding making to her of her father’s property. denied .categorically will. She the testi- Up that? A. “Q. When mony nurse, Malone, of the Jane Conway. effect that she made statement with had will, her .changing reference to father or “Q. Conway? A. In Yes. . listening at the bedroom door when Novem- “Q. That would be before being executed. She denied Miss Ma- Yes, A. sir.” 1949? testimony ber gi.ven lone’s that her father was eggnog whiskey an brandy -in the days that two be- admitted She further morning of that the will was exe- of the will she induced fore execution had specifically denied she She cuted. pol- change his life insurance her father to her attributed to the statements made beneficiary sole icy to make her the so as as to her the contestants other witnesses thereunder. brothers, toward her unfriendly attitude importuned her urged father case at bar testator in the was an beneficiary sole under his to make her ninety years old at the being man time aged will. fall of 1948 of execution will. complete which resulted he had a stroke she testified that examination On cross inability paralysis his left side and to use personal given her all father had her He had a severe tremor of his left hand. while she lived with property, and that made it right hand which difficult for purchased Conway she a car. We hearing impaired His him use it. to. testimony: quote from his poor eyesight eye and his one. physically made him blind. stroke your “Q. But it was father’s car? required helpless and he ássistance bought up it for the use A. Yes. necessary' for to move became about in Conway, needed we it. We couldn’t His room. B. Whe- anything. get meat or lan, proponent, lived in state of New “Q. You have sold that car? A. York, having years twenty left home some personal things were His mine. By her father had the before stroke. ar- rangement with brother she came to you anything writing Have Conway in the fall purpose of 1948 for the personal things that these to show taking care her father and for which yours? Yes. There was an arti- A. paid to be at the per she was rate of $35 personal property given all his cle 7th, On November week. 1949the testator to me. instruments, three executed contestant’s 1-2, 0-2, Have article with and P-2. Exhibit 1-2 exhibits me, attorney ? I don’t have it with power no. Mar- *12 896 WHelan; my respects ‘attorney I confirm “In- all other power oí is tha B. ‘ whereof, I testimony -her to will. said- form and- authorized usual in''the my nаme the the testator hereunto subscribed of of the business have transact-all day March manner of 1950.” in the-same 29th effect and
to the same him same performed the could signed and The instrument attested . power attorney Martha of Under self. day on the of March witnesses 29th two ' of her father’s charge took full B. 1950.' income from his She collected business. -checks, operations, all cashed farming his -7th, B July dated It Exhibit is 1950. expenses payment .of in all checks issued his by-the as a codicil to executed other, ex and with his business connection will,i 1947. day the 21st October dated of expenses in connection penses as well as (cid:127) that, provides It nursing of testator. and care my my is desire “Whereas bonds; áll of his issued checks cashed She Whelan, shall daughter, Martha Burris n onall of bank sold his his balance and A. T. sum of Thousand Dol- Five receive She-.claimed,of course & T. stock. my in addition to all lars from еstate defray expenses this in of order to did all bequests her in said will devises n connection with her father’s business and provided. codicil necessary him providing care for his copy Exhibit P-2 a certified of comfort. is “Now, Therefore, be- give I claim quit deed from testator- to Martha my daughter, Martha Burris queath conveyed The property B. Whelan. is the Whelan, sum Five Thousand of Conway, Rome the testator located in ($5000.00); to be a Dollars. same County.. 0-2 is a Walsh written Exhibit bequest preference special over having by the I-Ienry instrument executed any bequests all other and devises Burris, pay agrees daugh wherein he his codicil made. said Martha ter B. Whelan at the rate of $55 ' my respects, othet confirm “In all I per taking week him nursing care of 21, and the will dated Oct. him, provides and it it'shall-’be retroactive March 1950.” thereto dated 2nd, codicil day-that .to November Martha Conway, B. Whelan arrived in- North D duly witnеssed and signed mark It was .a akot day by two witnesses on 7th attested There, introduced;and July 1950. were also admitted C, evidence contestants’ Exhibits and B. think the evidence is sufficient We Exhibit C dated March 1950. It is susceptibility an inference raise codicil executed the testator part influence on testator. undue his will Burris to dated 21st Oc- years ninety the will old when tober, provides that, It years previous Two he had become drawn. physical wholly unable take of his care A; son,-Charles my “Whereas since Ted His statement to McCann in needs. Burris, Now, is now deceased: There- he, March not fore, hereby I all and revoke de- capable taking care his affairs and bequests vises and in said will made to incompetent should be declared saidCharles A. Burris and direct that request to McCann to look after his heirs shall nothing receive from affairs; request to his sons Leo and my estate. farm, look after his remark tо Will further hereby ap- “I direct do Will in March that his his son my Whelan, point daughter my Martha driving crazy Kennedy, money friend to be asking executors would indicate that he John my testament; (cid:127)of last to serve under a severe mental strain bond. him subject without render to undue would influ-
897 ,held in jurisdictions “It for is in-most opportunity abundant There was ence. question tha.t was which has arisen He to exert it. .the fom daughter Martha his at executed supervision. mer wills care and her constant under in a time when undue is not influence to home a deed his her given had He or to power charged appear of does not her a given Conway. He had provisions present, been contain- attorney all business. to do with in year inconsistent those of will a after agreement signed a written , salary contest, may her be in behalf of increasing admitted Conway, came to pf making charge it the contestant in a support of per to week $55 from $35 it is Although recog- arrival undue influence. to the time retroactive .her July disparity, nized that 1950 between the In March fall of 1948. may will of earlier to his October will and will in contest executed codicils he upon 21, depend favor- well 1947, length codicils was of time each of which elapsed proponent Martha Whelan. that between the to the execution of able con- health, age instruments, two changes Testator’s ill sen-ile condi- tions, dition, changes home his residence in Martha’s in the attitude of the existing confidential relation- testator’s children or natural between other ob- permitting independent jects an bounty, them are facts of his the view is that the susceptible to inconsistency inference that testator the wills is one .between that undue influence and the circumstances which should quote Page placed exercised from 2 before be aсcepted it. We jury 825; Wills, Edition Section them for what Lifetime it is worth light of all the facts and circumstances “The fact and bene- in evidence.” household, ficiary of one are members or with the that testator lives bene- Miss Malone testified that Mrs. Whelan ficiary is told her gift, makes such father the whom before the will was presumption un- made said not to raise that he should attorney have an come provide due make a her, influence. will and n men there, were coming naming said that such “While is evidence them, and that there was to abe will made prove does not of tend to itself undue providing for her. These were incidents so influence, ad- it is said that such fact is point near in of time to the date execu- presumption missible in A evidence. tion of the will could have in- or inference of undue influence is said fluenced the mind' of the testator. Miss to arise aged where testator is Malone further testified that Martha Whe- feeble, property the bulk of leaves lan had some conversation nature of this the children with whom he lives every day with her father least two the exclusion others for whom .he weeks before-the date of the execution of always has affection, manifested or While the Will. Mrs. Whelan'denied’that actually where reposes trust suchconversations were had fa- person confidence ther, conflicting testimony nevertheless the whom he lives.” questions of raised fact as to undue in- fluence which could be submitted to the proponent’s two codicils will of 21, October 1947 are evidence to the' effect jury; that said will was inconsistent with' the will Schnell, Redf., N.Y., In Demmert v. 22, of November 1950. The will of October 413, it is stated:
21, 1947was executed at time when testa- tor was free to “The rule be deduced act his own from the volition with- subject out the on the is this: exercise others of decisions undue in- person by old age fluence. The enfeebled rule such where a cases is stated as follows in makes a will in Am.Jur., Will, illness favor another Section upon dependent, page person 292: whom he is up to have existed this attitude seems to for variance with is at and that the will. the time the execution of made, intentions formed mer full in' their faculties is there brothers With reference dictates opposed to the vigor, and the record'to indicate nothing in *14 presumption the justice, and nature of their father relationship them and between un result of will is the such a is friendly congenial. and anything but influence,'unless presumption due appeared to relationship between them The evi by other satisfactorily rebutted is mutual friendli- be the normal attitude of the case.” dence in father and and between a ness devotion in the his no evidence' children. There is con- influence was undue question of The anytime any disagreement be- of record Oregon Supreme Court the sidered sons are the testator and the who tween the 162, Will, 177 Or. In re Lobb’s in the case contestants this action. quote from the 295, 160 304. We P.2d opinion: person right has the It is true that a respect to the dis change to his mind with in that undue has held “This court position property, his or other will fluence, cause a to be sufficient to case, wise; however, the where as in this aside, such set must have been to be any disinherits all of his sons without or volition have overcome the free to designates as and his sole apparent reason testator, the and judgment of conscious beneficiary his with whom had efficient cause have become the to prior years making for two the lived will would not have which the
without will, he had been during the and which time Will, 42 re Holman’s been made. In as is her constant domination such under 908; 345, re Diggins’ 70 P. In Or. case, situation re evident the instant the 341, Estate, P. The fact Or. 149 73. scrutiny quires by the courts. In re strict relationship a existed confidential Estate, 289, 227 Minn. 35 N.W.2d Olson’s beneficiary is between testator and 445, 439, Supreme Minnesota the Court of itself, will, not, in a sufficient vitiate approval quoted following the from indicating the absence of evidence Hancock, 326, 362: v. 9 Abb.N.C. Swenarton beneficiary in the exercised undue “ Will, In has, course, fluence. re Turner’s Or. ‘Every testator the However, where con P. 461. a radically, right change and even arbi- relationship is shown trarily, fidential disposing the manner existed, the will is and, and inconsistent property; in the absence of fraud ,pf affection, duty imposition, courts will sustain .with claims beneficiary slight respect. evidence that this But when it has action the testator’s confidence is suffi change abused that an been found unnatural De will, cient to invalidate it. re Haas’ a been made in sick mail’s hаs Will, previous P. apparently contrary 135 Or. 42.” to his one 'purpose, it fixed determined is prior appears the record that from It duty closely of the courts to scrutinize proponent the fall of 1948 when circumstances, with a as- view of Conway came to take care of free, certaining whether the act was been absent father she had from the her voluntary intelligent, whether twenty years. for more than There state a substitution of volition and in the record of intimate evidence no another, who some ir- interest of relationship between her and her father influence secured resistible absence. during such evidence would ” change.’ the time that from she arrived in indicate a rather After careful consideration of Conway she assumed dominant record and all of facts and lengthy in' cir towards attitude case, affairs, the advanced age of his business cumstancеs management BURKE, MORRIS, J., C. GRIM- and senile condition undoubtedly JOHNSON, affect SON physical JJ., ailments which concur. judg independent ed the exercise
ment; the con was under the fact that he Rehearing On Petition for Martha.Whe- supervision of stant care and prior years immediately lan for .two SATHRE, Judge. will, opportunity to execution of the her the pressure make upon exert him to petitioned has will; the fact that beneficiary of his sole rehearing. made She asserts , of the ex Thursday the date preceding motion.in judgment district court for him to ecution induced of the will she notwithstanding al the verdict or *15 to make policy so as' change a life insurance ternative new trial. .The motion thereunder; beneficiary her the judgment-notwithstanding verdict children eight disinherited his sons granted. left That undetermined the'mo son, provided and further of a deceased tion for a new trial. Under rules’an made to his sons all advanсes in several court nounced decisions of thi.s repaid es be' to his in his lifetime should’ right proponent move for property thus become tate which would new trial in the court still remains. district beneficiary Whelan, the sole Martha B. 363, Grondahl, Nelson v. 100 N.W. N.D. will, have concluded under the —we 1093; Equip Bree v. Tractor & La Dakota an issue of fact as to whether there was 476; Co., ment 69 N.D. 288 N.W. time of the execution of the will Knutson, Smith v. 76 N.D. 36 N.W.2d agent acting was a free un-' . Accordingly granted pro 323 leave is. upon influence that been exerted der trial, ponent renew motion new for a Martha B. Whelan the such thirty days motion to made within jury will. The found that date filing from the remittitur herein. purported will was not the will of made, motion judgment If such is not is di opinion areWe Burris. to be rected entered for contestants in ac support is sufficient to evidence verdict original opinion cordance with the herein. d . and that should not be disturbe Rehearing denied. judgment is reversed and the case to the district remanded court with direc- j., BURKE, MORRIS, reinstate the tions to verdict and the judg- C. GRIM- JOHNSON, ment entered thereon. SON and JJ.