36 N.W.2d 625 | Neb. | 1949
Lead Opinion
This is an appeal from the judgment of the district court of Lancaster County, Nebraska, admitting to pro
William E. Bainbridge was a resident of that county and died on the 25th day' of November, 1945. He left an instrument purporting to be his will, and proceedings had in the county court resulted in its probate. Contestants Rhoda Otley, Lurena Derieg, and George Derieg, appellants, appealed. The proponents, Richard O. Johnson, named in the will as executor, Guy Stickney, and Helen Seng, named in the will as beneficiaries, are the appellees. The grounds of the contest were that the deceased at the time of the execution of the document in question did not have testamentary capacity and that it was obtained through undue influence exerted -upon the deceased by Guy Stickney. The court found and instructed the jury that there was no evidence from which it could find or determine that the purported will was in any manner the result of undue influence exercised upon the deceased, and the question for its determination was whether or not the deceased had testámentary capacity at the time he executed the alleged will. The'trial resulted in a judgment sustaining the instrument as the will of the deceased. The motion of contestants for a new trial was denied.
An important inquiry, as this case is presented, is whether or not the trial court was justified in withdrawing from the jury the right to consider and determine the issue of undue influence. The answer to this is decisive of this case. It depends on whether or not the evidence of the appellants standing alone and accepted as true has probative force sufficient to make a prima facie case for them. The right to have the issue of improper influence resolved by a jury depends on the evidence submitted by appellants, and since a verdict was directed against them, they are entitled to have their evidence and all inferences fairly deducible therefrom viewed in the most favorable light.. It is not permissible for this court to determine that undue influence
Appellees concede this as the rule of law in this respect, but they claim that the assignments of error relate in part to instructions of the trial court on the' issue of testamentary capacity as well as undue influence, and because thereof, the testimony of the witnesses of the appellees must be considered. The insufficiency of this contention is that appellants do not argue any assignment of error made by them except as it pertains to the error of the trial court in failing to submit the issue of undue influence to the jury;- neither do they attempt to use any of the evidence offered by the appellees except as it bears upon the issue of undue influence. A determination that the trial court was correct in deciding the issue of undue influence as a matter of law would compel an affirmance, and a conclusion that the trial .court was not justified in that regard would require a reversal.
The evidence proper now to, be considered tends to establish that:
George and Mary Bainbridge, the parents, and Elizabeth, their oldest child and a sister of the testator William E. Bainbridge, were natives of England, migrated to
Elizabeth helped with the work on the farm and did sewing for other persons. She married, became Mrs. Gillham, and moved to a farm west of Waverly. Later she and her husband separated. They had no children. She worked as a seamstress, and solicited and made sales of Avon Cosmetics. Her father gave her 160 acres of unimproved land near Waverly. She owned a residence where she made her home and a “town house” in Lincoln. She continued after the separation from her husband to sell cosmetics and work as a seamstress. She and her brother, the testator, had no quarrels or disagreements and at all times sustained friendly relations. No reason was known why he had any animosity towards her. On occasions Anna, the wife of the testator, called Elizabeth in Lincoln and she procured and took groceries from Lincoln to the home of her brother. She was a frequent visitor of her brother. Her father, George Bainbridge, died in 1930. His will was contested. She, her brother, and sister Lurena were the contestants. Her sister Rhoda was the proponent. There was in excess of $40,000 worth of property given to Rhoda by the will of her father. This angered the contestants and they tried to get a part of it. The contest resulted in prolonged litigation and was terminated in the Supreme Court. Elizabeth died in 1947, after the death of the testator.
Rhoda married Arthur Otley and they lived on a farm adjoining the farm of her father. Testator was not friendly with his sister Rhoda and entirely ignored her from the time of the contest over the will of their
Lurena married and became Mrs. Derieg about 1900, moved to a farm about four miles north of Waverly, and went to Oklahoma in 1906. She had seven children, all very young at the time of the death of their father in 1910. He homesteaded 160 acres of land near Carnegie, Oklahoma, about 75 miles west of Oklahoma City. The father of Mrs. Derieg a considerable time afterwards gave her 160 acres of land adjoining the land of her husband; $500 in cash, and after her husband’s death paid a $1,400 mortgage on the Oklahoma property. The income from the land was not sufficient to meet the' requirements of the family and it was very difficult for her to support and care for herself and her children. Her health failed and it was necessary to sell 80 acres of the land given to her by her father to meet “health expenses and bills.” The testator knew of her burdens and difficulties. She was a frequent visitor at the home of her brother. She was in Lincoln, Nebraska, at the home of her son George several months each year for five years, from about 1941 until the death of the testator. During these years she, her son George, his wife and his children, were at the home of the testator almost every Saturday. • There was a “natural feeling of brotherly love” existing between her and her brother and she was friendly with her sisters. When she was at the home of her brother, commencing in 1941 and . continuing until his death, she observed that he drank beer and wine all through the day and kept them icy his bed at night. He drank lots of wine. He said beer didn’t agree with him. She saw lots of jugs and bottles around his premises — counted 50 jugs one day — most of them gallon and half-gallon size. Testator was sleepy, stupid, and laid around. When she saw him during 1944 and 1945 he would drink all during her visits. She was a contestant of the will of her father, paid no part of the
Testator did not move around normally. He walked “stooped and * * * wobbly,” could only walk very slowly, would stagger, stumble,- and occasionally fall down, was unsteady, would set one foot and then the other to keep from falling down. He -shuffled or trailed his feet and gave the impression that he was feeling his way along. He didn’t take much interest in anything, complained his stomach hurt him. He would get up, walk around, go back and lie down, slept most of the time during the last two years. He ate very little — would go to the table, eat a few bites, and drink a glass of milk — ate less as .he got older, and the last two years did not eat solid foods or much of anything but soup. He frequently became nauseated during meals when he tried to eat and would eject the contents of his stomach through his mouth on the table before he could withdraw, go outdoors and not come back. His conversations in later life were few and limited, generally concerning what he claimed some neighbors had done to him. He would say that they were not treating him square, were robbing him. He accused a boy who did chores for him of stealing his oats, did not talk normally, could not stay on one subject, could hardly tell anything. His mind “would drift from subject to subject” and sometimes he would hardly know anyone. He continued to drive his automobile though he had difficulty in operating it, would drive it off the road into the ditch, and on one occasion into and on the abutment of a bridge. He attended general farm sales and at one in 1917 a team of mules — one crippled — was offered for sale. No one seemed to want them. He bid and bought them for $525. Years later at another sale one of a
From the time he was about 20 years old until his death he habitually drank whisky, beer, and wine, except in the latter years.he drank beer and wine. His drinking habits were “lifelong” and his< indulgence in intoxicating liquor constant and continuous.
During the latter part of his life he was drunk all the time — didn’t know what he was doing. His drinking and condition got progressively worse during the last twenty years. He was intoxicated everywhere, even when attending church and funerals. His appearance, color, and condition changed, and he became “puffy,” “pasty,” and “sort of yellow,” and would shake all over. With one exception testator did not drink intoxicating beverages with any other person, and no one but testator drank intoxicating beverages on his farm.
The testator in the latter years of his life had weeping and whimpering spells. He indulged in self-pity about his sickness and stomach condition and “was very corn-plaintive and * * * would weep sometimes and cry about his condition and about the way people treated him and such.” After 1938 he was despondent much of the time and would whimper and whine and assert that he wasn’t going to be here long — he was going to die, and sometimes he would “lay on the ground and would have to be helped up during his whimpering spells.”
Guy Stickney became a tenant of testator in the spring of 1944, and had been a tenant on the Shea farm, southwest of Waverly, before that. Three witnesses stated they had not heard him mention Guy Stickney before he moved on the farm of the testator as his tenant. The testator was afraid to drive his car and after he ceased operating it Stickney would sometimes drive his car
There were no improvements made on or to any building or structure on the land of testator from 1934 to 1944 except he furnished $10 for wallpaper. Shortly after Guy Stickney became his tenant, a chicken house and garage were built, a little shed on the barn was remodeled, the cribs and cow barn were fixed up, and the house painted.
George E. Derieg, son of Lurena Derieg, a nephew of testator, lived in Lincoln from 1927, and visited many times at the farm of his uncle. He husked corn there in 1927 or 1928. His early visits were social and about twice monthly until 1935. From then to 1938 about weekly, and from then until 1945 once and sometimes two and three times each week. His wife and later their children accompanied him. About 1938 testator asked his nephew to make a garden on the Bainbridge farm so both their families could share the produce raised. From then until the spring of 1945 Derieg and his family visited the farm of his uncle during off-duty
Testator consulted and was treated by a physician at his office eight times, commencing with May 28, 1945,
The doctor testified alcohol is a poison and alcoholism a disease; affects the central nervous system and all organs of the body; one of the causes of cirrhosis of the liver is alcoholism; most chronic alcoholics experience morning vomiting, muscular tremor, and a causeless mental restlessness; the testator experienced all of these; the will and power of a person to resist the influence of others is weakened by chronic alcoholism; and the normal reaction of the victim to persons who attempt to induce a reduction or discontinuance of his drinking activities is the victim usually refuses to do so and may become the enemy of the one making the suggestion. A chronic alcoholic is more' inclined to befriend a person who assists him in satisfying his desire for intoxicants. The discontinuance of drinking alcoholic beverages by a chronic alcoholic for a short period would not restore his normal faculties. These are restored only by a course of treatment, and it may be impossible to obtain a restoration of them. It was the opinion of the doctor
A specialist in neurology and psychiatry stated: Alcoholism, acute or chronic, is a disease. Chronic alcoholism causes defects in judgment and changes in personality make-up, often spoken of as mental deterioration, because of which the will is weakened, emotional control is lessened, and defects in judgment occur. The seriousness of the effect on the mental faculties of the use of intoxicating beverages depends upon the length of time of the use. Duration of use is a most important factor. The effect is more likely to be deleterious upon the mental faculties of the steady, persistent drinker. Chronic alcoholism may result in permanent impairment of mental faculties, and the permanency of the impairment depends to a great degree upon the duration and extent of the alcoholism. A short period of abstinence from the use of intoxicating beverages would have small effect upon the restoration of a chronic alcoholic of his normal mental faculties, but would make him more emotional and unsteady, because of the absence of the sedative effect of alcohol to which he is accustomed. The length of time required through abstinence to regain normal mental faculties, if regainable, depends very much on the length and duration of the period of drinking and the chronic character of the alcoholism. The effect of chronic alcoholism is to increase the personality defects and eccentricities of the person affected. If he has been emotional, he will be more emotional; if he has been subject to mood swings, he will probably be more that way.- Alcohol is a sedative and it calms the person temporarily who has become accustomed to its use, and an alcoholic may by virtue of his indulgences be apparently normal, but in fact be suffering from physical and mental unbalance. He might carry on ordinary business transactions in a seemingly normal
Testator was a farmer and stockman. He owned about 600 acres of land. He rented some of his land. He did no actual field work, but he managed all of his business until the time of his death. His parents deeded him Lots 1 and 2 in the northeast quarter, and the southeast quarter of the northeast quarter of fractional Section 6, Township 11 North, Range 8 East, of the 6th P. M.,
Testator made a will on February 11, 1942, by which he gave his personal property and a life estate in his real property to his wife, Anna L. Bainbridge, and subject thereto he devised his real estate as follows: To- his nephew, George Derieg, the east half of the southeast quarter, and Government Lot 4 in the southeast quarter of Section 6, and the west half of the southwest quarter of Section 5, all in Township 11 North, Range 8 East, of the 6th P. M., Lancaster County, Nebraska, and Lots A and B of Stephen B. Clark plat of Section 18, Township 11 North, Range 8 East, of the 6th P. M., Lancaster County, Nebraska; to Helen Johnson Seng, the northwest quarter of Section 5, and the southeast quarter of the northeast quarter and Lots 1 and 2 in the northeast quarter of Section 6, all in Township 11 North, Range 8 East, of the 6th P. M.
Testator did not own the northeast quarter of Section 5 attempted to be devised to Helen Seng.- He did own the northwest quarter of said Section 5. Likewise, testator did not own the southwest quarter of the northeast quarter of fractional Section 6, also known as Lot 3, attempted to be devised to her. He did own Lot 1 in the northeast quarter of said Section 6, which is not mentioned in exhibit 1.
William E. Bainbridge died on November 25, 1945, leaving surviving him his wife, Anna Bainbridge, who died in the year 1946, his sisters, Elizabeth Gillham, Lurena Derieg, and Rhoda Otley, as his heirs. Helen Seng was related to the testator by affinity only — she was a niece of his wife.
The essential elements of undue influence sufficient to defeat a will are: That opportunity to exercise it exists; that the testator was susceptible to such influence; that there was a disposition to exercise it for an improper purpose; and that the result clearly appears to be the effect of such influence. In re Estate of Farr, supra; In re Estate of Keup, 145 Neb. 729, 18 N. W. 2d 63; In re Estate of George, 144 Neb. 887, 15 N. W. 2d 80; In re Estate of Bowman, supra.
The burden is on contestants to produce evidence tending to prove each of the four elements stated above, as a prerequisite of their right to have the issue submitted to a jury for determination. In re Estate of Farr, supra; In re Estate of George, supra. If any one of the essential elements enumerated is not supported by evidence or reasonable inference drawn from a fact or facts otherwise established, the contention of undue influence must be rejected. The evidence must tend to show undue influence directly in reference to the will in question, and be of such a nature as to control the will of the testator and cause him to do something that he did not intend. Suspicion or supposition of undue influence is not sufficient to require the submission of the question to a jury or to sustain a verdict. In re Estate of Bayer, 119 Neb. 191, 227 N. W. 928; In re Estate of Keup, supra; In re Estate of George, supra. Whether or not the evi
In evaluating the testimony and proper inferences therefrom, it is not always possible to apply the evidence tending to establish improper influence which is referable to the will solely to one of the essential elements. Parts of the evidence tending to show undue influence may have probative value as to the existence of one or more of the elements thereof. A will containing unnatural provisions and gross inequality of distribution of the estate of the testator inconsistent with his duty to the members of his family, may afford evidence or inference that the testator was a person susceptible to influence, a disposition on the part of the beneficiary under the will to influence him, and that the result of the will may have been brought about by the exercise of improper influence. Evidence of ill health and mental defects of the testator may'tend to support the element of susceptibility of the maker of the will and when supplemented by evidence of a contribution to the diseased condition of the mind of the testator by the person charged with having exercised illegal influence such as assisting him in continuing his excessive indulgences, the evidence becomes indicative also of the disposition of the person charged with improper conduct to exert improper influence over the testator. The fact that the person against whom undue influence is asserted is a very substantial beneficiary of the will under consideration, and also a recent acquaintance of the testator at the time of the execution of the will, may tend to prove that he was susceptible to influence, that the beneficiary had a disposition to exercise influence upon the testator, and that the result shows that the will was the effect of improper influence. Likewise, evidence tending to show that the regard and
Guy Stickney moved on the land of the testator as a tenant in March, 1944, and continued that status until the death of the testator on November 25, 1945. The will in question was made on June 11, 1945. The acquaintance of the testator and Guy Stickney before he became the tenant was casual and limited. There is evidence that the testator had not spoken of Stickney before he moved on the farm. There were two sets of buildings on the land. The tenant lived in the house on what is referred to in the evidence as the north farm, and the testator lived in the house on what is referred to in the evidence as the south farm, or the Balis land. The houses were about three-quarters of a mile apart. The land was in a farming community and surrounded both houses. Testator and Stickney were friendly. They sometimes visited at the place on the land where Stickney happened to be working on the farm when the testator was out on the land, and he would assist while they
There is evidence tending to show that testator from the time he was about 20 years of age habitually drank intoxicating beverages and his indulgences in this regard and his physical and mental condition resulting therefrom got progressively worse during the last twenty years of his life; that during the latter part of his life he was continuously under the influence of intoxicating beverages; he could eat and assimilate only liquids, most foods nauseated him, and he substantially lived on wine; he was sleepy, stupid, and nearly bedfast much of the time;
The conduct of Guy Stickney and his wife in assisting testator in having continuously the intoxicating liquor he desired, as indicated by the evidence and reasonable inferences therefrom as above noted, may have had the effect on the testator of imbuing him with a great sense of gratitude and obligation to Guy Stickney. There is evidence to the effect that this could be the result of such conduct; that a chronic alcoholic such as the testator would take into his confidence and feel an affection and obligation towards anyone who assisted or encouraged him in the continuance in his indulgences in intoxicants and aided him in satisfying his desire for such beverages; that the extent and duration of the drinking of a chronic
There is evidence from which it could be found that a considerable part of the land owned by the testator at the time of his death came from his father. Notwithstanding this, he, by his last will, disregarded his nearest relatives, his sisters, and also one of his nephews whom he had not so long before recognized as a deserving object of his bounty, and he substituted strangers to his blood, a niece of his wife, and a tenant of short acquaintance, as his beneficiaries. This is not a case of unequal division between relatives of the testator, but the enrichment of a stranger. It could be found that there were good reasons why the testator excluded his sister Rhoda, but his revulsion of feeling as to his sisters Elizabeth and Lurena, with whom he had always, even to the hour of his death, sustained friendly relations and frequent contacts, is not so easily explained, and is not convincingly accounted for in this record. It could have been outside influence improperly exercised over the testator as charged herein. The evidence that George Derieg, nephew of the deceased, was for a considerable time a favorite of the testator, to whom he appealed when he needed assistance and from whom he accepted many kindnesses, is of peculiar importance in
Undue influence is largely a matter of inferences from facts and circumstances surrounding the testator, his life, character, and mental condition, and the opportunity existing for the exercise of improper control. In re Estate of Noren, supra. If a will contains unnatural provisions, it deserves close scrutiny. In re Estate of Bowman, supra. The fact that a beneficiary was a comparative stranger to the testator is a suspicious circumstañcé. to be considered on the issue of undue influence. In re Estate of Paisley, 91 Neb. 139, 135 N. W. 435; In re Estate of Frederick, 83 Neb. 318, 119 N. W. 667.
The judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed and remanded.
Dissenting Opinion
dissenting.
I am not in accord with the majority opinion. It is the law of this state that the elements necessary to be established to warrant the rejection of- a will on the ground of undue influence are: That the testator was subject to such influence, that the opportunity to exercise it existed, that there was a disposition to exercise it, and that the result appears to be the effect of such influence.
It is my contention that the facts shown in the majority opinion fail to show by sufficient evidence that there was a disposition on the part of the devisee, Stickney, to exercise undue influence. Every statement in the majority opinion on this point is as consistent with Stickney’s relationship to the testator as tenant, or neighbor as it is with that of substituting his will for that of
I submit that there must appear in the record somewhere, if undue influence is to be submitted to the jury, some evidence which can be accounted for only on the basis of a disposition on the part of Stickney to exercise undue influence. No such evidence is set forth in the majority opinion.
We have repeatedly held that every sane person is entitled to will his property as he sees fit, except where he has been limited by statute. He has a right to give it to relatives, to strangers, or to charity. If the conclusion reached by the majority is correct, the jury is entitled to pass upon the question of undue influence where the relationship of the parties is put before them, even if there is not a syllable of evidence which can be accounted for only on the basis of a disposition of the one charged, to influence the making of the testator’s will. The practical effect of such a holding is to make the execution of any will subject to the approval of a jury where undue influence is charged.
The right of a person to dispose of his property by will rests on a much more secure foundation than this. Isaac v. Halderman, 76 Neb. 823, 107 N. W. 1016; In re Estate of Bose, 136 Neb. 156, 285 N. W. 319; In re Estate of Scoville, 149 Neb. 415, 31 N. W. 2d 284. This case is very important to those who desire to make a testamentary disposal of their property. One who desires to make an unnatural disposition of his property, for reasons best known to himself, is seriously restricted by the .majority opinion. Juries are inclined to sustain charges of undue influence in the drafting of wills which they deem to be unfair to the natural objects of testator’s bounty. But the maker of a will has a right to be unfair in disposing of his property without revealing his reasons therefor. I submit that if evidence is not required, which can be accounted for solely on the basis of a disposition to "influence the testator, there is no
In my judgment, the trial court correctly analyzed the evidence and properly directed a verdict in favor of the plaintiff.
The judgment should be affirmed.