153 Minn. 458 | Minn. | 1922
Maria Jernberg, a woman 70 years old, made a will while sick at a hospital in Duluth, on September 13, 1919. On September 16 she died. Mrs. Jernberg was a widow and childless. She had a brother living near Detroit, Minnesota, and a brother and sister in Sweden. To these she left nothing. She left a small amount to relatives of her husband. She left $500 to her pastor and spiritual adviser, Rev. C. O. Swan, and the balance, approximately $12,000 in value, to these institutions: To Bethphage, a charitable institution at Axtell, Nebraska, she left $500, and the balance to Bethany Home, of Duluth.
The district court found that deceased had mental capacity to make a will. This finding is sustained by the evidence. The law is well settled. A testatrix, in order to make a valid will, must understand the nature, situation and extent of her property and the claims of others upon her bounty or her remembrance, and she must be able to hold these things in her mind long enough to form a rational judgment concerning them. Schleiderer v. Gergen, 129 Minn. 248, 152 N. W. 541. See also Lewis v. Murray, 131 Minn. 439, 155 N. W. 392.
Deceased was very ill. She had submitted to a surgical operation that day, an injection of fluid into her veins. But physical weakness does not signify mental incapacity. Schmidt v. Schmidt, 47 Minn. 451, 50 N. W. 598. Nor does old age. Little v. Little, 83 Minn. 324, 86 N. W. 408. That the will disregards family ties or is unwise or unjust, or is, for other reasons, such as the court does not approve, does not signify that it is invalid. If there be no mental infirmity (Foster v. Dearborn, 48 Minn. 504, 51 N. W. 614, 31 Am. St. 665) or undue influence (Bush v. Hetherington, 132 Minn. 379, 157 N. W. 505), such a will must stand. The attending physician of deceased testified that for a day or two after the operation her mental condition was quite normal and that in his opinion she was competent to make a will. A nurse, who was called to witness the will, testified that she appeared to understand what she was doing. The will was prepared in the presence of deceased by a reputable attorney, and he testified that her mind was very clear, and that he knew she comprehended the will and was capable of making it. There is evidence that two days later she gave directions that a payment was due her on that day and gave directions for its collection. There is evidence that on num
There is evidence that a few hours before she made the will she dictated to her pastor the names of those she desired to remember and the amount to be given to each. The name of one brother appeared on this list as a prospective beneficiary to the extent of $200. When the will was drawn he was omitted. It is claimed that this indicates want of mental capacity. But the attorney who drew the will testified that he asked her as to bequests to her relatives and she said she wanted to make none. The inconsistency between the list and the will is evidence to be considered as bearing on her mental capacity, but is not conclusive of incapacity.
The evidence as to mental capacity was sufficient.
Contestants contend that the will was the result of undue influence exerted by Rev. Swan. The facts are: Rev. Swan was her pastor and had her confidence. He suggested to her that she make a will. He talked with her as to its terms and, as above stated, took down notes from which the will was drawn. He called the lawyer who drew the will, and called the nurse who witnessed it. He was a beneficiary under the will and the major part of her estate was given to a charitable institution of which he was director and treasurer. There is evidence that he evaded calling her relatives and that in talking to them he evaded the facts as to the will. These facts taken in connection with her weakened physical condition and the fact that her relatives, some of them poor, were not mentioned at all, it is claimed, required a finding that the will was the result of undue influence. The probate judge agreed with contestants that these facts showed undue influence.
Proponents argue, on the other hand, that the will was prepared by a reputable and competent lawyer with no possible influence present; that, as above stated, he asked her as to bequests to her relatives and she said she wanted to make none; that he read the will over to her item by item and explained each item to her separately; and that, without influence of any kind, she, with proper intelligence and understanding, approved and executed it. He is corroborated by the nurse who witnessed the will, and, as above
The direct evidence sustains the district judge. .But undue influence may be proved by circumstantial evidence. Often no other class of proof is available. Thill v. Freiermuth, 132 Minn. 242, 156 N. W. 260. The real question is, was the mind of the testator so controlled by the influence of another, however exerted, that the testator was not left to act voluntarily and understanding^, Mitchell v. Mitchell, 43 Minn. 73, 44 N. W. 885, or, was the free agency of the testator destroyed at the time the will was made and the will of another substituted for her own. Matter of Will of Nelson, 39 Minn. 204, 39 N. W. 143; Woodville v. Morrill, 130 Minn. 92, 153 N. W. 131. Weighing all evidence, direct and circumstantial, we think it'sustains the decision of the district judge.
The district judge accompanied his decision by a memorandum in which he said: “The exhaustive and able briefs of counsel have been read with care and the presumptions and rules applicable to will cases have been given careful attention. But there does not seem to be much room for their application here.” Counsel for contestants contend that this indicates that the court failed to apply the applicable rules of law, or, in other words, that the court failed to give full probative effect to the circumstances surrounding the execution of the will.
Opportunity to exercise influence, or the existence of confidential relationship between testator and beneficiary is not proof, standing alone, that undue influence was in fact brought to bear; Matter of Will of Nelson, 39 Minn. 204, 39 N. W. 143; Foster v. Dearborn, 48 Minn. 504, 51 N. W. 614; Page, Wills, §§ 409, 421; Underhill, Wills, § 145, et seq.; Gardner, Wills, pp. 156-169. When such opportunity arises out of confidential relationship, such as that of religious adviser and parishioner, and there are bequests to the one sustaining the confidential relation, and also active' participation on his part in the preparation of the will, and acts of evasion on his part, these facts, coupled with singularity of provisions in the will
We think it an unfortunate use of terms to say that the burden of proof shifts. It is better to say the burden is on the contestant throughout, but that facts such as we have detailed may make nut a prima facie case, and, unopposed, may prevail. Lebens v. Wolf, 138 Minn. 435, 165 N. W. 276, L. R. A. 1918C, 868.
The principles we have stated are, without doubt, the principles which the trial court had in mind. We do not think he meant by his memorandum to ignore them, but rather to make it clear that he considered the direct testimony so strong that inference or presumption could not prevail. In this we cannot say he was wrong.
The contention is made that there was no execution of the will. The evidence is that while the testatrix was signing her name the pen fell from her hand and her attorney put the pen in her hand and assisted, her to make her mark. She was able, when in health, to write. We find, however, no difficulty in sustaining the finding that the execution of the will was sufficient.
Order affirmed.
