203 Pa. 400 | Pa. | 1902
Lead Opinion
Opinion by
Letitia Robinson died November 23,1900, in her eighty-fourth year. She had been confined to her bed by a severe illness for about three weeks before her death; on the 13th of the same month, ten days before her death, she made her will, the writing in dispute. She was the widow of William O. Robinson, a lawyer of Allegheny county, Pennsylvania, who had died many years before, leaving her with five sons, William, James, Alexander, John and Eccles, to survive. Up to the date of the will, all had died except John B., this plaintiff. Of the other sons, Eccles alone left children, these three contestants, Anna R., Gerald O. and Mary P. Robinson. Eccles married twice ; Gerald O. and Anna R. are children of the first wife; Mary Parker is a child of the second wife; the mother died when the daughter was an infant, and she was taken by her uncle John B. and reared as one of his family. Some years after her husband’s death, the testatrix, Letitia Robinson, continued to live in Pittsburg, but in 1879, she went to her son, John B., at Media, and made her home with him until her death, a period of about twenty years. Her husband had left her property of the value of about $100,000. On January 10, 1876, she conveyed the whole of her estate to George W. Guthrie in trust for herself during life. In this conveyance she was joined by her son John B., who added'to the trust as a further provision for his mother, property to the value of about $10,000. In February, 1889, her brother Eccles Robinson died, leaving her an estate worth over $400,000. In the eleven years following, up to the date of her death, she expended, approximately, $300,000 of her estate, but that part of the property coming to her from her brother Eccles, much of which was real estate in the city of Pittsburg, had largely appreciated in value after she took possession. By her will, with the exception of some jewelry and household articles, the entire residue of her estate, approximately worth $200,000, was devised and bequeathed to her son John B. She had made provision in the will for a monthly payment of $125 to her son James during
On December 12, following her death, the will was tendered for registry before the register of wills; this was met by a caveat, filed by contestants against probate. After a lengthy preliminary hearing in the orphans’ court, that court certified the case to the common pleas for an issue, which court, after further hearing, directed an issue devisavit vel non. The questions framed to be submitted to the jury were these:
1. Whether the signature to the said paper writing is the signature of said Letitia Robinson?
2. Whether the said paper writing was executed by said Letitia Robinson?
3. Whether the said Letitia Robinson was of sound and well-disposing mind, memory and understanding at the time said paper writing is alleged to have been executed by her?
4. If the said paper writing were executed by her, the said Letitia Robinson, whether the execution thereof was procured by duress, imposition and undue influence, exercised over the mind of said decedent?
5. Whether the said will was procured by the undue influence of John B. Robinson?
It was ordered, that the parties to the issue should be John B. Robinson, who sought to probate the will, plaintiff, and Anna R. Robinson, Gerald O. Robinson and Mary Parker Robinson, the latter represented by her guardian, William J. McClure, defendants. The cause came on for trial on October 19, 1901, when a jury was sworn. The plaintiff, having called Charles H. Thomas and T. Speer Dickson, the subscribing witnesses to the will, who testified to the execution-of it by the testatrix and the circumstances attending the execution, read the will and rested his case in chief; the defendants then adduced evidence, tending to negative the first three interrogatories and to affirm the last two; the plaintiff then by evidence undertook to rebut defendant’s averments. The trial lasted about four weeks. At the close of the evidence the court, peremptorily, instructed the jury to answer the second and third interrogatories “Yes”; as to the first he instructed them to find, that testatrix made her mark to the will; as to whether
The verdict here was against the will and the court entered judgment upon it. To reverse this judgment, in a stronger sense than is commonly applicable to a disappointed suitor, the laboring oar is on appellant; for under the 41st section of the act of March 15, 1832, directing the issue, there is in effect, an approval of the verdict by the court. Here the learned trial judge after the testimony taken before the orphans’ court and after a further hearing before him, directed and framed the issue, then, after a prolonged hearing of all the evidence on both sides with the parties and witnesses before him, he enters the judgment, which appellants now argue, should be reversed, because the evidence to sustain it is insufficient. “ The issue is of right when the fact arising and in dispute is substantial, unless the whole evidence of the fact be so doubtful and unsatisfactory, that a verdict against the validity .of the will ought not to be allowed to stand: ” Schwilke’s Appeal, 100 Pa. 631. Again in Wainwright’s Appeal, 89 Pa.
Leaving out of view for the present those assignments of error, to particular rulings on the admission of or rejection of evidence, we wdll consider the first two propositions of appellant’s counsel, viz: that there is no sufficient evidence that any undue influence was exercised on the mind of testatrix by anybody when she executed the will; and second, there is no sufficient evidence that John B. Robinson unduly influenced his mother to make a will in his favor.
In support of the first proposition, it is earnestly argued that the judgment on the third interrogatory of the issue conclusively establishes that at the time the will was made testatrix “ was of sound and well-disposing mind, memory and understanding.” This being taken as a fact, then in the absence of any direct evidence of fraud or duress, the conclusive presumption is, that in law and in fact, the writing is her will.
There is no doubt that evidence to establish undue influence over an intelligent mind, firm in its purposes, must be clear and
From the course of the trial in the court below we do not see that the question, as to on which party rested the bur
Was there sufficient evidence to warrant a finding, that the will was procured by the undue influence of John B. Robinson? In this case as in Cuthbertson’s Appeal, 97 Pa. 163, Wilson v. Mitchell, 101 Pa. 495, and other cases, the evidence of feebleness of mind is so blended, with that tending to show undue influence, that in some instances it is difficult to separate them.
We cannot unduly prolong this opinion by pointing out piece by piece all the testimony exhibiting the kind of management of this large estate by her son, the attorney in fact, and the agents at Pittsburg, Motheral and Lea. Any one who patiently wades through the 1,300 pages of printed testimony in the appendix cannot fail to come to the conclusion, that the management at “ both ends of the line,” as they termed Media and Pittsburg, was utterly lacking in business system or method; it exhibits all the reckless devices and shifts of those in continual financial straits, even to what is called in street slang, the “kiting” of checks between the attorney in fact at the one end of the line and the agents at the other. Practically, the business was known only to the agents. .
The Pittsburg agents testify, that they mailed to her monthly or quarteriy accounts; if they did, she either did not get them or did not read them, for the correspondence before us, some 350 letters and telegrams passing between the agents at the two points, clearly establishes, that while the son knew the condition of the estate, the mother did not know or did not comprehend it; time and again she wanted an auditing or accounting ; she made frequent demands for the comparatively small amounts of money necessary to her comfort, which an aged woman in her station in life, with her estate, had a right to expect and she was disappointed. For example, note this extract from a letter of the son August 31,1899, to the agents at Pittsburg: “ Mother is complaining about a matter which I think you could easily obviate; she says that when Mr. Lea was here, he promised she would not have to wait or wire for money any more, but that he would see it was remitted to her; now why not do this, I do not mean large amounts. She would be satisfied with
The reason the money was not sent, will be noted in this reply of Motheral and Lea to John B. Robinson the next day: “ If you will just look over the accounts and notice the number of drafts you draw on us it will not be difficult for y0u to see why we are unable to send your mother any money. We cannot now, we are going to help Moses in our present financial condition.” Clearly, she believed she had money and had a right to a small remittance; just as clearly, both her attorney and agents withheld from her the reason her demand was denied; then the son suggests, that she be quieted by small sums from time to time in which the agents seem to have concurred. On April 14, 1900, the son asks the agents to borrow for a short time $250 and remit to his mother, as she cannot understand why there is not enough to supply her wants at any time. Two days aftér, on the 16th, the agents remitted the money without intimating it was borrowed, although they had written the son only a few days before that his mother’s account was overdrawn $3,800.
Further, there is a letter from the Pittsburg agents to the son January 30, 1900, which gives a long schedule of drafts for comparatively small amounts, either due or about to become due amounting to several thousand dollars saying, among other things': “We have no money and have -advanced a great deal more than we can stand so we must get it back. . . . Mr. Slack mailed you the will, you had better have it executed. Is there not some scheme you can suggest to get these taxes up ? The Penna. Co. is threatening foreclosure.” The very same day they wi'ite this brief note to the mother: “We inclose herewith our accounts rents showing balance $1,741.77 due us, and for which we will take credit in next account. We also inclose authorization slips for transfers. Please sign and return to us immediately.” The reasonable inference the mother would draw from the note was, that her estate was indebted to her agents the comparatively small sum of $1,741.77, which they would deduct from next monthly account, yet the son was in
That she was restive under this bondage, yet too weak to break from it, there is testimony of quite a number of witnesses. Horace R. Manley a conveyancer, had drawn a power of attorney for her to her son in 1881, by instructions from the mother communicated to him by the son; this power she executed; within eighteen months afterwards, she came back and com
There was much other evidence of a like character, from all of which contestants argue, that it was a reasonable inference, that the mother was of a weak mind, was dominated by the son’s stronger will; that her mind rose to no higher degree of strength, than the mere expression of wishes, which when the son disregarded or denied, she submitted, and he thus subjected her will to his, took possession of her estate, disbursed and disposed of it as he chose.
It is argued by appellants’ counsel, that this evidence is too remote to warrant a reasonable inference of the sou’s influence being in operation at the time the will was executed. That even if it should show, that in the years previous to 1900 the son induced or persuaded his mother to do that which was in opposition to her wishes, the question still is, was she of disposing mind and memory when she signed the writing in dispute, and was the act then, without unlawful constraint on the part of the son ? All the authorities cited by counsel for appellant hold this to be settled law and we neither question nor desire to question it. But while the facts narrated as to the size and disbursement of the estate and the testimony of witnesses as to complaints of testatrix: and conduct of the son cover years, they come down close to the preparation and execution of the will. The feebleness of mind which made her susceptible to undue influence had existence in 1876. If it had arisen from illness, or other cause temporary in its nature, the presumption would be, that the end of the cause was the end of the weakness; but the evidence tends to show, this streak of mental infirmity was inherent, commencing, probabty, with her birth and continuing with constantly increasing mani
This brings us to the evidence connected with the execution of the will. John B. Robinson testifies that a will was prepared in 1891, but he believes that one was destroyed; that sometime earlier than July, 1899, there was talk between him and his mother of a will, and she said she would go to Pitts-burg and arrange her affairs there and make a will; that he went to Pittsburg with her in September for that purpose; when they got to Pittsburg he went to her room at the Monongahela house and noted down for her the disposition she intended to make of her property; that he thinks he then took
It would be a waste of time to discuss the point made by
The testimony of John B. Robinson shows, that he talked with his mother concerning the making of her will not later than the July preceding; he wrote to Motheral and Lea, that she was going to Pittsburg to make her will; he went to Pitts-burg with her for that purpose and then with her to her room at the hotel where a rough draft Avas made by him in her presence,; this he took out and had typewritten and brought it back to her room where he left it. The next morning it was taken by some one to the office of Motheral and Lea and the same day by one of the firm, probably Mr. Lea, to the office of Mr. Slack, their lawyer; he had before that time transacted some legal business for John B. and was known to him. Mr. Slack dictated to his typewriter from the notes or rough draft of the will made at the hotel, substantially the aauII read in evidence, except in the draft made in Mrs. Robinson’s room there Avas a bequest of $25,000 to Mary Parker Robinson, which does not appear in the will now before us. Mr. Slack testifies, he sent the copy drawn by him to Motheral and Lea and they testify it was mailed by them to John B. Robinson on October 28, 1899. On January 24, 1900, John B. Robinson remailed the copy to Motheral and Lea, in which he said his mother desired certain alterations ; they delivered the paper to Mr. Slack with the suggested alterations; he made another copy and mailed it to Mrs. Robinson
The fact that first attracts notice is, that in the rough draft prepared and approved by her in her room at Pittsburg was a bequest of $25,000 to Mary Parker Robinson ; this was in the rough draft first delivered to Mr. Slack, which is the foundation of the will before us ; certainly Mr. Slack, who never saw or
This, it is true, is only contestant’s side of the case. The testimony of John B. Robinson contradicts it in some important particulars, and as to others which are calculated to arouse suspicion, he furnishes plausible and reasonable explanations. If the son had not been called at all as a witness, and the verdict on the whole issue had been against contestants, the law, which so rigidly watches the conduct of the chief beneficiary, who aids in the preparation and execution of a will, might have moved the court to set the verdict aside ; yet with his testimony in full, if the jury had credited it, it is probable the verdict would have been the other way; in which event, it is doubtful if the court below would have disturbed it. But the jury seem to have discredited his testimony because of its inconsistency with that given at the preliminary hearing. As already noticed, testatrix made her will on the 13th of November, on the 23d she died, on the 12th of December, four weeks after the will was executed, the preliminary hearing was had; the son was then called as if on cross-examination and testified, that he had very little to do with the preparation of the will; that he had never seen it until the day it was executed ; that he had, to adopt his own language, “ Nothing at all to do with the construction of the will; ” had never talked with his mother about the contents of the paper; that he thought his mother took the paper home with her to Media when she left Pittsburg. When it is remembered that at the trial a year after, he testifies, that his mother went to Pittsburg with him to prepare her will; that she in conference with him did prepare it in her room at the Monongahela House ; that he took notes and had them typewritten, then left the typewritten copy with his mother after
We take the law to be as cited by appellant from Tawney v. Long, 76 Pa. 106, 115:
“ Undue influence of that kind which will affect the provisions of a testament must be such as subjugates the mind of testatrix to the will of the person operating upon it; and in order to establish this proof must be made of some fraud practiced, some threats or misrepresentations made, some undue flattery, or some physical or moral coercion employed, so as to destroy the free agency of the testatrix, and these influences must be proved to have operated as a present constraint at the very time of making the will.”
This statement of the law pointedly excludes the idea of undue influence on the evidence in that case; the sum of that evidence is thus stated by this court: “ The testimony does not even raise the idea of solicitation, much less that of improper or fraudulent conduct on the part of Tawney. It contains but the advice one prudent and cautious neighbor might give to another under like circumstances.”
In the same line is Yorke’s Estate, 185 Pa. 61, only recently decided by us on an able opinion of Judge Hanna of the orphans’ court of Philadelphia. This case, also cited and relied on by appellant, decides that:
“ Where the testatrix is proved to possess full and entire testamentary capacity, even though to some extent enfeebled by the infirmities of age, and even though the will be prepared by a confidential friend and advisor who is benefited by the will and made executor, the presumption is in favor of the validity of the will, and that it is in accord with the voluntary and uncontrolled wish of the testatrix.”
In Boyd v. Boyd, 66 Pa. 283, it was decided that, “ general evidence of power over the testator, especially if he be of comparatively weak mind, from age or bodily infirmity, though not to such an extent as to destroy testamentary capacity, will be enough to raise a presumption which ought to be met and overcome before such a will can be established. Particularly, ought this to be the rule when the party to be benefited stands in a confidential relation with the testator.”
Says 1 Redfield on Wills, * 515, “ Where the pai’ty to be benefited by the will, has a controling agency in procuring its execution, it is universally regarded as a very suspicious circumstance, and one requiring the fullest explanation.” This text of Judge Redeield has been adopted with approval, as the
“ Looking at the contestant’s evidence separately, it seems to make a case for a jury; and if no counter evidence were there adduced, there would probably be no hesitation as to a verdict. So on the other hand it is equally clear that the proponent’s evidence would not only support but uncontradicted would command a verdict. Does it, however, so completely meet, answer and overthrow the contestant’s case as to leave but a one-sided issue? We cannot say so. Looking at the whole evidence as put before us in print, we do not think we can say, that the balance is not doubtful. So much depends on the means of knowledge, the interest or bias, the manner, the character, and the personal weight each witness carries as an individual among his neighbors and in the community, that a jury is the only appropriate tribunal to determine which way the balance inclines. Having the testimony present to their
Every word of this is pointedly applicable to the contradictory evidence before us. Without a sweeping change in the evidence on the one side or the other, this case could not escape the scrutiny of a jury.
In our discussion thus far, we have passed in substance on all those assignments which allege error directly or indirectly in submitting the evidence to the jury; they are all overruled.
Assignments 519 and 568 complain at a considerable length of the inadequacjr and misleading character of the charge of the court, in defining what constitutes undue influence. In this class of cases it is always difficult for a court to adopt a succinct statement of the law which the jury can readily apply to the evidence before them. As the law already quoted says : “ Each case will differ from every other one. Undue influence is a relative thing always to be taken in the concrete.” The learned trial judge enunciated the law in general as found in the books on the subject of undue influence; as was necessarily the case, much of it had no application to the particular evidence before him and therefore, would give no light to the jury in their deliberation upon it; but in view of what he said in the conclusion of his charge, the jury could not have been confused or misled; the learned judge said to them:
“ I repeat, so that there shall be no mistake about it — as we have said to you a son may importune his mother to make a will in his favor, and counsel for plaintiffs has repeated various forms of appeal, which you heard, that he may make to her, to induce her to make a will in his favor. That is true, he may do so, he has a perfect right to do it, and if the only effect was to move her affections or sense of duty, or judgment, he has a perfect right to do it. But if these importunities were such as the testator hadn’t the power to resist, and yielded for the sake of peace and quiet, or escaping from serious distress of mind, if they were carried to a degree by which the free play of testator’s judgment, or discretion, or wishes were overcome, it is undue influence. He can coax her, but he must not drive her, either by moral coercion or physical force.”
By this instruction he could not, more emphatically or more concisely, have turned their attention from the subject of un
Thirty-five assignments, in substance, complain for error of the admission in evidence of declarations of testatrix. These declarations were not offered to controvert the facts of the execution of the will, nor to show that it was the outcome of duress or fraud not involving her mental condition. For such purpose they would have been inadmissible as the authorities cited by appellant decide. They were offered as tending to show the mental weakness of testatrix and that the will was procured by the undue influence of her son. Without other evidence they would not have been sufficient of themselves to make out contestant’s case, but taken in connection with the other evidence all the authorities hold they were admissible: Boyd v. Eby, 8 Watts, 70; Rambler v. Tryon, 7 S. & R. 90; McTaggart v. Thompson, 14 Pa. 149; Norris v. Sheppard, 20 Pa. 477; Trost v. Dingler, 118 Pa. 259.
Next it is alleged for error that the declarations of John B. Robinson were permitted to go to the jury and consequently affected other legatees who had nothing to do with the preparation or execution of the will. Under this head appellants’ counsel group 226 assignments of error, setting them out in the old form of a multiplication table. The authorities cited sustain their point, but the point is not framed to fairly cover the ruling of the court on the admission of the offer. In Nussear v. Arnold, 13 S. & R. 323, Clark v. Morrison, 25 Pa. 453, and other cases, it is held that the interest of devisees under a will are several and not joint, therefore, that the declarations of one against his codevisees are not admissible to affect their interests. But it will be noticed in these cases, that the declarations consisted in an opinion of the legatee as to the testamentary incapacity of the testator and for that purpose they were offered. In the first case cited, there was evidence that three women had combined to get the testator drunk and procure from him a will in their favor; that they had declared to him they were persons of virtue and good character. These declarations made in car
Assignments 557 and 558 raise questions wholly barren of fruit to appellant. The court decided that there was a lawful execution of the writing by testatrix when she made her mark; he submitted to the jury to find whether the name “ Letitia Robinson ” was her genuine signature independent pf the mark;
We see nothing further in the assignments which requires special notice ; they are all overruled. Through an unbroken line of decisions for a century, this court has not failed in unmistakable terms to express its aversion to groundless litigation of a will by disappointed legatees. Where, however, the evidence was of that character and significance which plainly demanded that a jury should answer, whether the will was that of testator or that of some other person, we have not hesitated to affirm a judgment against the will. The latter is what we do in this case.
Judgment affirmed.
Dissenting Opinion
dissenting:
The assignments of error in this case are so numerous that they lose much of their weight. Many of them should in my opinion be sustained, for much irrelevant and wholly inadmissible evidence was permitted to be thrown into the case to the prejudice of the appellant. But it is not desirable to discuss these matters in detail here. I would reverse the judgment on the broad ground that there was no evidence on which the jury should have been permitted to set aside the will.
The contest before the jury, briefly stated, embraced three points, the execution of the will, the testamentary capacity of the testatrix, and undue influence by appellant. As to the
In this case there is no room for any such contention, for the testatrix in her will only continued what she had been doing for years, while in the possession of full mental and physical vigor, putting the appellant on the footing of her preferred child and favorite beneficiary.
That at times she was dissatisfied with the reduction of her income and its lavish expenditure, and expressed her intention to restrict her son’s management, was not unnatural, but does not prove undue influence. She was a woman, as testified, of strong will, with counsel of her own, not to mention the inter-meddling advice of other relatives and nominal friends, but she never displayed any desire to go beyond a little querulous faultfinding, a not uncommon entertainment of the indulgent parent.
Taking the definition of undue influence as expressed in the opinion of the court I find nothing in the evidence which comes .anywhere near the required standard.