35 N.W.2d 439 | Minn. | 1948
The appeal presents four questions for decision: (1) Whether the evidence sustains a finding of lack of testamentary capacity; (2) whether it sustains a finding of undue influence; (3) whether cross-examination of the beneficiary-proponent, who received under the will the bulk of testator's estate, was permissible to show extra-judicial declarations by her that she had testator change his will, for the reason that a prior will gave other beneficiaries more than it gave her; and (4) whether testimony showing such declarations constituted substantive proof of the facts to which they related.
The will was executed on March 16, 1945. Testator was then almost 90 years old. About ten days prior to the execution of the will he fell downstairs into the basement of Henrietta's house, where he lived, and sustained injuries which necessitated keeping him in bed and the services of a physician for their treatment. The evidence showed that for at least several months prior to the execution of the will and afterward testator suffered from senile dementia caused by general arteriosclerosis. While he was confined to his bed as a result of the injuries caused by the fall, his mental condition was such that he did not realize that the physician who cared for him was in fact such.
Testator's estate was of the value of approximately $17,500. About a year prior to his death he conveyed by deed to Henrietta a farm he owned near Ellsworth, Wisconsin, to which further reference will be made. Testator was a childless widower. So far as appears, his only relatives were those named in the will, which provided for bequests of $1,000 to his brother Ole, $500 to his nephew Ray Olson, $1,000 to Arnold Olson, $100 to his church, and the residue (almost *292 $15,000) to Henrietta. Ray Olson is the son of testator's deceased brother, Tollif. Arnold Olson and Henrietta are brother and sister. They are grandchildren of testator's deceased wife, but are not blood relatives of testator. Henrietta was reared from the time she was two and one-half years old by testator and his wife in their home and treated as their child. Testator and Henrietta had a deep and genuine affection for each other, which was manifested by his calling her "granddaughter" and by her calling him "grandpa," and by acts of service, kindness, and thoughtfulness for each other. Arnold Olson lived with testator and his wife in their home from the time he was five years old until he became 15 1/2 years of age and, like Henrietta, was treated as their own child. The witness Arthur Ludwig, who is not a blood relative of testator or of any of the others mentioned, lived with testator and his wife from the time he was eight years old until he became 20 years of age. Testator and Ludwig had a strong affection for each other, and at the former's suggestion they referred to each other as though they were father and son. Except for lucid intervals, during one of which it was claimed the will in question was executed, testator was mentally incompetent.
From 1935 to 1937, testator and his wife lived with Henrietta and her husband, Lars Mork, in their home on the farm owned by testator in Wisconsin. After testator's wife died in 1939, he lived with Henrietta and her husband on the farm. For at least a year prior to the execution of the will, a confidential relation existed between testator and Henrietta. He had told others that she was looking after his business affairs. While Henrietta testified categorically that testator transacted his business himself, there was evidence showing that for at least a year prior to his death she either attended to his business or assisted him in doing so. The trial court made findings, unchallenged here, that because of testator's disabilities Henrietta "had to do his business for him" and that "a confidential relationship" existed between them (the latter as a conclusion).
It appears from the testimony of Ludwig that prior to the execution of the will testator intended to make both intervivos and testamentary dispositions of his property. This he intended to do by a *293 conveyance of the farm to Henrietta and by a will providing for a division of the residue. It was not shown among whom he intended to divide the residue or in what proportions. The farm, consisting of about 120 acres of land, on which there were a house and other buildings, was referred to on the argument as "valuable," but its value was not shown. Testator told Ludwig that he would take care of him when the proper time came, but there is nothing to show whether such provision was to be made by will or otherwise.
Testator executed his intention, except as to providing for Ludwig, to so dispose of his property. On April 27, 1944, less than a year before he executed the will, he conveyed the farm to Henrietta by warranty deed, reserving a life estate and providing that part of the consideration for the grant was that she should during his life furnish him with a suitable home in a manner to which he had been accustomed, and should provide him with his meals and laundry, but that she should not be liable for funeral expenses, medical bills, nursing, or any necessary hospitalization. The deed was recorded. Henrietta's obligations under the deed to care for testator were discharged by making ample provision for him and treating him kindly. For this he was appreciative and so expressed himself many times. Testator also executed a will (that is, a will prior to the instant one), as he expressed an intention to do, disposing of the residue of his estate. The terms thereof were not shown. Presumably, it disposed of testator's property other than the farm conveyed to Henrietta. It does not appear whether testator made provision therein for Ludwig; but, as has been pointed out, testator had not affirmatively manifested an intention to provide for him in his will rather than in some mannerinter vivos.
On the morning of March 16, 1945 (ten days after testator fell down into the basement), according to Henrietta's testimony, testator expressed a desire to have a will drawn. She testified that at his suggestion she wrote on a sheet of paper the names of the proposed beneficiaries and the amounts he intended to give them "so it would be handy for him when he gets to the [attorney's] office"; that she and her husband took him to Red Wing to have testator's lawyer *294 draft the will; and that, after she first ascertained that the attorney was in his office, she took testator there for the purpose of having his will drafted. She had with her the paper with the names of the beneficiaries and the amounts to be given them. Testator stated to the lawyer: "Well, we have, we have fixed up a little paper." (Italics supplied.) Thereupon, Henrietta handed the paper to the lawyer, and at his suggestion she left the room. The lawyer testified that in answer to his inquiry of testator whether "he knew how the things were to go or words to that effect," he answered: "Yes, I have some idea.That paper has something on it." (Italics supplied.) The paper, which has since been mislaid or lost, was placed by the lawyer on his desk, where the names and amounts thereon were visible. He then interviewed testator to elicit from him his wishes with respect to the disposition of his property. While the lawyer testified that he did this without the aid of the paper, the evidence permitted the inference that testator could see the paper. The lawyer's testimony shows that testator had in mind a definite plan for the disposition of his property by the will and that he had a correction made in the final draft of the will to express such intention. By his will, he gave his property to those whose names were on the paper, but it does not appear that he gave them the amounts therein specified. The lawyer and his partner were witnesses to the due execution of the will. Both of them testified as to the facts surrounding the execution of the will and to facts showing that at the time of executing the will testator had testamentary capacity. It appears from their testimony without contradiction that testator was in the lawyer's office during one of his lucid intervals; that he then comprehended the nature and extent of his property, his relation to those naturally having claims on his bounty, and the effect of the will which he then executed; and that he was able to hold all these things in mind and form a rational judgment concerning them. The lawyer was not informed of testator's fall downstairs into the basement ten days before the date of the will. There was no evidence that he had been informed of the confidential relation between testator and Henrietta, of testator's previously expressed intentions *295 as to the disposition of his property except the prior will, or of testator's conveyance of the farm to Henrietta.
At the trial, contestant was permitted to cross-examine Henrietta, who as proponent of the will had been called as a witness by her own attorney, to show that about the time of filing the petition to prove the will Arnold asked her: "Why did you have grandpa change his will?" and that she replied: "Because you fellows would have stood to gain more than I would." At first she testified that she did not remember any such conversation. Afterward, under examination and some leading by her own counsel, she changed her testimony by stating that the conversation referred to a document Arnold wanted her to sign and not to the change in the disposition of testator's property by the will in question. This explanation was characterized by the trial judge as "not entirely satisfactory." In addition to permitting such cross-examination, contestant was permitted to impeach Henrietta by Arnold's testimony that in response to the question he put to her, "Why did you have grandpa change his will?" she answered, "Because you fellows would have stood to get more than I would," or words to that effect. The trial judge in deciding the case treated the declarations of Henrietta to Arnold as substantive proof of the fact that she not only had testator execute the will in question to take the place of the prior one, but also that she did so because the other beneficiaries would have received more under the prior will than she would have.
1. Findings of fact and conclusions not assigned as error on appeal are deemed to be correct. Raymond v. McKenzie,
2. Where the evidence as to testamentary capacity and undue influence is conflicting, findings of the trial court with respect to such questions are final on appeal, even though the appellate court, if it had the power to try the questionsde novo, might determine otherwise upon reading of the record. In re Estate of Forsythe, *296
3. The evidence as to testator's testamentary capacity at the time of the execution of the will is all to the effect that he had such capacity. There was no conflict therein to be resolved by the trier of fact, and consequently the finding made with respect to the question is not final here under the rule stated. A will made by a person otherwise lacking testamentary capacity during a lucid interval, when he possessed such capacity, is valid. The test is whether the testator had mental capacity at the actual time of making the will. In re Estate of Boese,
4. Whether the will was procured by undue influence exerted by Henrietta presents a different question. The will of a testator possessing testamentary capacity may be the result of undue influence, even where he has had the independent advice of counsel in drafting it, as we shall show presently. Edwards v. Edwards,
Under well-settled rules, the finding of undue influence here should be sustained. There was evidence showing as independent facts both undue influence and its effect upon testator's mind. *297
While opportunity to exercise undue influence or the existence of a confidential relation between testator and a beneficiary are not, standing alone, proof of undue influence, yet when such opportunity arises out of a confidential relation and there are bequests to one sustaining the confidential relation and also active participation on his part in the preparation of the will, disinheritance of relatives, singularity of the provisions of the will, and acts of evasion on the part of the beneficiary sustaining the confidential relation, an inference of undue influence is permissible. In re Estate of Olson,
The prior declarations of testator as to how he intended to dispose of his property reveal a fixed purpose with respect to the matter and, although disconnected from the making of the will, show the effect which the influence thus otherwise shown had upon his mind. In re Estate of Osbon,
"* * * Every testator has, of course, the right to change radically, and even arbitrarily, the manner of disposing of his property; and, in the absence of fraud or imposition, courts will sustain his action in this respect. But when it has been found that an unnatural change has been made in a sick man's will, and one apparently contrary to his previous fixed and determined purpose, it is the duty of the courts to scrutinize closely the circumstances, with a view of ascertaining whether the act was free, voluntary and intelligent, or whether it was a substitution of the volition and interest of another, who by some irresistible influence secured the change."
And as said in Demmert v. Schnell, 4 Redf. Surr. (N.Y.) 409, 413:
"The rule to be deduced from the decisions on the subject is this: that where a person enfeebled by old age or illness makes a will in favor of another person upon whom he is dependent, and that will is at variance with a former will made, or intentions formed when his faculties were in their full vigor, and is opposed to the dictates of nature and justice, the presumption is that such a will is the result of undue influence, unless that presumption is satisfactorily rebutted by other evidence in the case."
An entire change from former testamentary intentions is a strong circumstance to support a charge of undue influence. Newman v. Smith,
5. Proponent Henrietta urges that the fact that the lawyer who drew the will and his partner, who with him witnessed it, testified to no facts showing undue influence is sufficient to overcome any inference thereof that might otherwise be drawn. The facts that a lawyer drew the will and that the witnesses to the will observed no undue influence are to be considered as part of the entire fact situation in determining whether there was undue influence, but alone they do not establish the absence thereof. In numerous such cases undue influence was held to have been established. In re Estate of Stephens,
"Such fraud or undue influence is not usually open and visible to the draughtsman of the will, or to the attesting witnesses, but is commonly exercised behind the scene."
In the Chambers case, the court pointed out that the fact that the attorney who drew the will and the subscribing witness testified that the testator understood and assented to the will was no answer to the charge of undue influence, for the reason that the execution of the will was, as there said (
6. Declarations or admissions of one of two or more legatees or devisees are not binding on the others (Benrud v. Anderson,
7. Arnold's testimony showing Henrietta's extrajudicial statements to the effect that she had testator change his will because the others would have got more thereunder than she is no proof of the fact that she had him change the will for the reason stated. The testimony simply shows what she said, not what the fact was. Impeachment testimony consisting of prior statements of the witness out of court is not substantive proof of facts stated therein, but is purely negative for the purpose of impairing the credibility of the witness. Klingman v. Loew's Inc.
8. The record shows that the parties have explored the factual situation exhaustively and that there is no likelihood of a new trial developing additional evidence. In such a situation, an entire new trial is neither necessary nor advisable. Where in a case tried by the court without a jury the trial court errs as to the rule of law to be applied in considering the evidence in making its findings, the appellate court should vacate the findings made and remand the case with directions to reconsider the entire record and make new findings in the light of the applicable rule of law. Prairie Farmer Pub. Co. v. Indiana F. G. Pub. Co.
Our conclusion is that the decision below should be reversed with directions to the trial court to reconsider the question of undue influence in accordance with the rules stated in the opinion.
Reversed and remanded for reconsideration of question of undue influence in accordance with the opinion. *303