132 Minn. 242 | Minn. | 1916
Action by certain of the heirs and devisees of Columbus Freiermuth, deceased, against George Freiermuth, a son and one of the devisees of the deceased, and Cliff W. Gress, his executor, to set aside a deed made by the deceased to the defendant Freiermuth. There were findings for the plaintiff. The defendants appeal from an order denying their motion for a new trial.
Columbus Freiermuth came to Minnesota in 1866 or 1867 and settled in Dakota county. He bought a farm of 104 acres when land was cheap. He added to it until it contained nearly 400 acres. He and his wife were thrifty and accumulated in addition to the farm something like $20,000 or $25,000, something over one-half being treated as the savings of the husband and the rest as the savings of the wife. Appar
There is evidence tending to prove that it was the mutual intention of the deceased and his wife, at the time of her death in February, 1911, that the farm should go to the children. The thought of deeding it to. the son came later. There are circumstances justifying a suspicion that undue influence was exercised, and there are circumstances which furnish grounds of suspicion relative to the subsequent dealings between the defendant and his father; but, upon a thorough consideration of a
George claims that about March 30, 1912, perhaps a day or two before, he paid his father $3,000 on the mortgage. There was at that time indorsed upon the note, apparently at Cannon Falls, a memorandum to the effect that $1,000 or more might be paid at any interest due date. The court found that the $3,000 was not paid. It also found that two annual interest payments claimed by defendant to have been made to his father were not made. These findings are important upon the question of the relief to which the defendant should be entitled in the event that the deed is canceled. On March 30, 1912, the defendant deposited in the Citizens’ Bank of Cannon Falls several thousand dollars, for which he took certificates of deposit, and on the same day surrendered certificates some thousands less in amount. The defendant’s statement as to the payment of the $3,000 is a bare statement of the fact of payment in cash. The surrounding circumstances are not shown.
In view of another trial it may be noted that the defendant was restricted in his proof of knowledge within the possession of the old gentleman’s attorney. In this connection Coates v. Semper, 82 Minn. 460, 85 N. W. 217, and In re Layman’s Will, 40 Minn. 371, 42 N. W. 286, may be examined. There was some confusion upon the admissibility of evidence of the declarations of the deceased and the effect of such testimony in proof of undue influence and the effect had upon the mind of the deceased. This can be obviated upon a new trial. See Woodville v. Morrill, 130 Minn. 92, 153 N. W. 131; Burmeister v. Gust, 117 Minn. 247, 135 N. W. 980; In re Hess’ Will, 48 Minn. 504, 51 N W. 614, 31 Am. St. 665; 3 Wigmore, Ev. § 1734, et seq.; Note, 107 Am. St. 459. It may be noted that the order for judgment against the executor, who was a codefendant, for $600, the amount paid by George to the executor as interest, is erroneous. It may be suggested if a new trial results in the cancelation of the deed that equity must be done the son. If he paid the $3,000 to his father, and interest, he is entitled to reimbursement; and he should be protected in the agreement which it appears from the
Order reversed.