102 P. 996 | Utah | 1909
This action was brought to revoke a will alleged to have been made under undue influence. The case is here on a second appeal. A statement of the facts and the opinion
No point is made in appellants’ brief that the evidence is insufficient to support the verdict, nor that the court erred in the instructions given the jury. The questions raised and discussed pertain to rulings of the court ill in admitting in evidence matters claimed to be too remote ; (2) in admitting in evidence opinions or conclusions of witnesses; (3) in refusing to strike answers of deponents in depositions as being not responsive and not the best evidence; (4) in permitting the plaintiffs to put matters in evidence claimed to be not rebuttal; and (5) in refusing to give certain requests to charge.
The person alleged to have exercised the undue influence was the second wife of the testator, the sole legatee of the will. The plaintiffs are children by his first wife. He married the second wife shortly after the death of his first wife. Much evidence was given tending to show1 that the second wife manifested feelings of prejudice, jealousy, and hostility toward the testator’s children, and that she unduly persuaded him to disinherit them and to bequeath and devise all his property to herself; that such feelings were manifested shortly after her marriage, and continued until after the death of the testator; that the testator could not speak of his children in terms of affection without exciting her displeasure ; that for years she endeavored to make him believe that he owed them no duty, and that they cared for him only because of his money; that he made the will because of her repeated solicitations and to obtain peace and cessation
Witnesses testified as to the testator’s “feelings” toward his children; that the second wife “hated” them; that “nothing she could say was bad enough”; that she took every opportunity “to malign his family”;
The court did not commit prejudicial error in refusing to strike the answer of a witness, a granddaughter of the testator, that “he was afraid of her (his wife) and dared
A witness in response to a question asked testified that the testator “always warned us in his letters never to mention anything that he said to us on that subject, as his wife would read the letters first, and, if they contained
Complaint is also made because of tbe court’s refusal to charge tbe jury'as requested by tbe defendants as follows:
“The court instructs the jury that any degree of influence over another acquired hy kindness and affection can never constitute undue influence within the meaning of the law, and, although the jury may believe from the evidence that the deceased in making his will was influenced by Margaret Miller, still, if the jury further believe from the evidence that the influence which was exercised was only such as was made over the deceased by kindness and friendly attentions to him, then such influence cannot be regarded in law as undue influence. . . . Affection or attachment, or mere desire to gratify the wishes of another, do not destroy the validity of a will made through such impulses. ... In this case, though you may believe from the evidence that Margaret Miller did use arguments or importunities to influence Thomas Miller in making of the will in question, still this fact, if it exists, will in no manner affect the validity of the will if the jury further believe from the evidence that such arguments and importunities did not deprive the deceased of his free agency or prevent him from doing as he pleased with his property, even though the will might not have been made in all of its provisions as it is but for such argument and persuasion.’'
Tbe substance of these requests was given by tbe court. Among other. things, tbe court charged tbe jury tbat tbe burden was upon tbe plaintiffs to show tbat tbe execution of tbe will was procured by undue influence of bis wife, Margaret Miller; tbat “undue influence is tbat degree of importunity which deprives a testator of bis free agency, so tbat tbe instrument executed under its operation is not bis free and unconstrained act, or, to state it in other language, undue influence is any improper or wrongful constraint, urgency, or persuasion whereby the will of a person is overcome, and be is induced to do an act which be would not do if left to act freely;” tbat, to constitute undue influence, tbe influence must “destroy free agency so tbat tbe will in question was tbe result of tbe domination of tbe mind of
“It is not every influence exercised over a testator which the law regards as invalidating a will. Such influence to he what is regarded in law as undue or illegal must he such as to destroy or to substantially hinder in its exercise his free agency in the matter of making his will. It must he influence amounting to moral coercion, or importunity which could not he resisted, so that the testator was constrained to do that which was against his actual will, and which influence he was unable to withstand, or too weak to resist. What amounts to such influence in any particular case is to he judged by the facts and circumstances appearing in such case. This test applies to weighing the evidence in the case. . . You are instructed that it is not wrongful for a person by honest advice and persuasion to influence one in the disposition of his property, or to induce a person to make a will in one’s own favor by fair speech, argument, and kind conduct, if it does not amount to undue influence, as defined in these instructions. . . . Evidence has been introduced with respect to language and conduct of the deceased, both before and after making the will. This has been received for the purpose only to enable you to determine whether the decedent executed the will through undue influence or fraud. What the decedent’s state of mind was before the occasion of executing the will or after its execution has nothing to do with its validity, except as it may afford evidence of his state of mind at the time of making it.”
The court further charged the jury'that, if they found that the will was made in the absence of undue influence and fraud, any feeling Mrs. Margaret Miller had toward the children of the deceased or toward the deceased himself would not invalidate the will. The court also charged the jury that they had nothing to do with the equity or inequity of the disposition of the decedent’s property, and that the right to dispose.of one’s property by will is an incident of ownership, and does not depend upon its judicious use; that the testator’s, children had no right in his estate which could be asserted against the disposition of his property by will; that a parent has the right to judge who is the proper object of his bounty; and that he may dispose of his property to any person
We think most of the rulings complained of were right, and that none were prejudicial to appellants. The judgment is therefore affirmed, with costs.