387 Pa. 82 | Pa. | 1956
Opinion by
Mary (Zuschlag) Thompson, the testatrix, died in Greenville, Mercer County, Pa., on January 21, 1954,
The Stitts, who were her residuary legatees, were not present at the time testatrix executed her Will nor at the prior conferences when she discussed her proposed Will with Mr. Dilley and Mr. Mortensen; indeed they never knew the contents of the Will or that they had been left anything until after Mrs. Thompson’s death. The lower Court said:
“. . . During both the preliminary interview conducted by Mr. Dilley and Mr. Mortensen and the interview of October 17th during which time the will was executed, Mr. and Mrs. Stitt were absent from the room and in some instances from the house. The evidence indicates that they left the room immediately after*85 their presentation of the visitors to Mrs. Thompson and did not return until the men had completed with the exception of the incident where Mrs. Thompson had called for Mr. Stitt to advise her on making the will at which Mr. Stitt informed her that she would have to do that herself and again left.”
The contestants, Charles Toten, Ira D. Talbott and John Ramsey, were not related to testatrix but for many years had done odd jobs for her at her store in Sharon. Each of them, under testatrix’s prior Will of March 15, 1950, had been bequeathed $>1,000. The contestants were subsequently joined in the appeal from probate by a Masonic Lodge and a Masonic Home which had been the residuary legatees under Testatrix’s Will of March 15, 1950.
At the trial of the issue devisavit vel non, the jury found that the decedent had testamentary capacity,
Mrs. Thompson had been separated from her husband approximately 40 years and since that time, except for the last year of her life, had a confectionery store and lived in Sharon, Mercer County, Pa. She had one child, a son, Carl, who died in 1944. At the time of Mrs. Thompson’s death her next of kin were her. sister, Mrs. Stitt, aged 76, two other sisters, Mrs. Lizzie Ruffing and Mrs. Margaret Frye, and a brother, Charles Zuschlag. Zuschlag, Mrs. Ruffing and Mrs. Frye lived in Sharon.
Testatrix in her last Will of October 17, 1953,
Mrs. Thompson in her prior Will dated March 15, 1950, gave $500. to the Oakwood Cemetery Association of Sharon for the preservation and care of her burial lot; $1,000. to Charles Toten, $1,000. to Ira D. Talbott, and $1,000. to John Ramsey and Jennie Ramsey, his wife, or the survivor of them. She then gave her residuary estate, two-thirds to the Shenango Masonic Lodge to establish in memory of her son, “The Carl V. Thompson Charity Fund”, and one-third to the Masonic Home at Elizabethtown, Pa. She appointed the Merchants and Manufacturers National Bank of Sharon as executor under that Will.
We believe that Mrs. Thompson’s last Will of October 17, 1953, instead of being a highly unnatural Will, was a very natural Will. In this Will, unlike her prior Will, she gave bequests to her sister Lizzie and her brother Charles, and the balance of her estate to her sister, Clara Stitt, and her sister’s husband, who had been taking wonderful care of her during the last year of her life. It is unfortunate that she did not leave anything to Toten, Talbott and Ramsey, but as people grow older, their appreciation of prior acts of friendship and help, often wanes. The fact that in her 1953 Will she gave no bequest to the Shenango Masonic
It is impossible to cover briefly everything that was said by witnesses in a rambling record of nearly 900 pages. Instead, we shall first state the applicable principles of law, briefly summarize the highlights of the testimony, and then analyze the evidence and the contentions of the contestants in the light of the pertinent authorities which the contestants have clearly misapprehended.
In Williams v. McCarroll, 374 Pa. 281, 97 A. 2d 14, the Court restated the principles which are now well and clearly established:
“ ‘. . . It is . . . the rule in Pennsylvania that in every case in which the question of testamentary capacity and the allegation of undue influence is presented to the court for determination, it is important to examine the disputed document itself to ascertain whether the testamentary scheme is natural and reasonable and in harmony with the family background.’ . . .
“. . . Moreover, where a will is drawn by decedent’s attorney and proved by subscribing witnesses, the burden of proving lack of testamentary capacity or undue influence ‘can be sustained only by clear and strong or compelling evidence’ ;* and this is especially so if proponents were corroborated by the attending physician: Higbee Will, 365 Pa. 381, 382, 75 A. 2d 599; Franz Will, 368 Pa., supra; Sturgeon Will, 357 Pa., supra; Ross Will, 355 Pa. 112, 49 A. 2d 392; King Will, 369*88 Pa. 523, 87 A. 2d 469; DeMaio Will, 363 Pa. 559, 70 A. 2d 339____
“ ‘Although there are a myriad of eases involving confidential relationship and undue influence, the courts have found it impossible to define precisely these terms. . . . “ ‘ “Confidential relation . . . appears when the circumstances make it certain the parties do not deal on equal terms, but, on the one side there is an overmastering influence* or, on the other, weakness, dependence or trust, justifiably reposed; ... In some cases the confidential relation is a conclusion of law, in others, it is a question of fact to be established by the evidence’: Leedom v. Palmer, 274 Pa. 22, 25, 117 A. 410, 411, 412; Null’s Estate, 302 Pa. 64, 68, 153 A. 137, 139; McCown v. Fraser, 327 Pa. 561, 564, 565, 192 A. 674, 676; Ringer v. Finfrock, 340 Pa. 458, 461, 462, 17 A. 2d 348, 350.” ...’”: Kees, Executor v. Green, 365 Pa. 368, 374, 75 A. 2d 2.
“In Phillips’ Estate, 244 Pa. 35, 43, 90 A. 457, the Court said: ‘When a will is attacked on the ground of undue influence, “It is necessary to bear in mind the meaning of the term . . .; as a legal phrase it is used as denoting . . . something violative of legal duty* . . . The word ‘influence’ does not refer to any and every line of conduct capable of disposing in one’s favor a fully and self directing mind, but to a control acquired over another which virtually destroys his free agency . . . and . . . opérateos] as a present restraint upon him in the making of the will” (Caughey v. Bridenbaugh, supra, 421; Stokes v. Miller, 10 W.N.C. 241; Miller v. Miller, 3 S. & R. 267; Zimmerman v. Zimmerman, 23 Pa. 375; Tawney v. Long, 76 Pa. 106; Herster v. Herster, supra, 612, 122 Pa. 239; Allison’s Est., 210*89 Pa. 22; McNitt’s Est., 229 Pa. 71; Englert v. Englert, 198 Pa. 326; McCauley’s Est., 224 Pa. 1, 5; Keller v. Keller, 239 Pa. 467.).’ See also to the same effect Franz Will, 368 Pa., supra.
“The authorities are in accord that, generally speaking, the burden of proving lack of testamentary capacity or undue influence or confidential relationship rests upon the person asserting the same: Kees, Executor v. Green, 365 Pa., supra; Teats v. Anderson, 358 Pa. 523, 58 A. 2d 31.”
No confidential relationship was established in this case, consequently it is not necessary to discuss the question of whether the burden of proof shifted.
The Proponents’ Evidence
L. Norman Dilley, who had been a reputable attorney in Greenville for 29 years, was recommended by Stitt. On one occasion five or ten years before, Dilley had represented Stitt in connection with a mortgage for Mrs. Stitt’s daughter. Mrs. Thompson telephoned Dilley a few days prior to October 17, 1953, and asked him to come to see her to draw her Will. She requested him to bring with him Mr. Mortensen, who was President and Trust Officer of the First National Bank. When they arrived at Mrs. Stitt’s home, Mrs. Thompson was lying on the davenport, but got up to greet them. Afterwards they all sat down, except the Stitts who had left the room. After some general conversation, Mrs. Thompson decided she didn’t feel like drawing her Will that particular day. Several days later Mortensen called Dilley and arranged to go to the Stitt home that day to see Mrs. Thompson. “. . . she was quite friendly and quite cheerful.” The Stitts withdrew from the house. After a general conversation Dilley told Mrs. Thompson he was there to find out what she wanted in her Will; who her relatives were,
The Stitts left the house when Dilley and Mortensen arrived. During the discussion of the Will, Mrs. Thompson requested that Dilley call Mr. and Mrs. Stitt into the room. “They came in and Mrs. Thompson mentioned to them that we were discussing the Will. Then the Stitts withdrew again; they said they did not want to have any part of it; that that was up to her to make her Will as she saw fit. So they withdrew and they didn’t return until we were just ready to leave, when we called them in again.”
Dilley prepared and returned with the Will on October 17th. He had discussed with Mrs. Thompson the
Dilley testified that Mrs. Thompson in her interviews with him and at the time she executed her Will, was mentally alert, knew and understood what she was doing, had a free and open mind about her Will, and knew exactly what she wanted in her Will. He also testified that as far as he could tell, the Stitts exercised no influence on Mrs. Thompson in connection with her Will.
Mr. Mortensen corroborated Mr. Dilley in all his testimony as to the conferences at which they both were present and particularly as to the discussion about the contents of her will. Mortensen pointed out to Mrs. Thompson that she was going to give her brother and
Dr. Diehl is a practicing physician of Greenville who was Mrs. Thompson’s physician since March 9, 1953. At that time she was in a very weakened and debilitated condition. She had come home from the hospital approximately a week before; she had a deficiency disease, a heart condition and arteriosclerosis; and she was very weak. She Avas at times confused when he first saw her. “Her whole picture was one of
Both Dr. Diehl and Mr. Dilley testified that Mrs. Thompson knew that she was paying the Stitts to take care of her. Dr. Diehl also testified, inter alia, that the door to the room which led into the hall at the top of the stairs was locked because Mrs. Thompson would try, especially at first when she was confused, to get up and walk around the house unaided at night, and that was a source of worry to all of them because she might fall downstairs and get badly hurt.
The testimony of Mr. Dilley, Mr. Mortensen and Dr. Diehl, three men of unquestioned integrity, was not contradicted or shaken or in any way impugned.
There was nothing in Mrs. Stitt’s testimony — or indeed in the testimony of any witness — to show that she ever exercised undue influence upon Mrs. Thompson.
Mr. Stitt, originally a bartender and subsequently a janitor, was a sick man 75 years old. He and his wife were living on his small pension. He testified that Mrs. Thompson’s mental condition was good. He had a heart attack while he was on the stand which may or may not account for several inconsistencies or contradictions in his testimony, which as we shall see, were, relatively speaking, unimportant.
What Was the Clear and Strong or Compelling Evidence Produced By the Contestants to Prove Undue Influence ?
The trial Judge says that it consists of the following:
1. Mrs. Thompson’s last Will dated October 17, 1953, was a highly unnatural Will. The lower Court arrived at this conclusion by pointing out the changes between Mrs. Thompson’s Will of March 15, 1950, and her last Will. In the 1950 Will Mrs. Thompson left $1,000. each to Toten, Talbott and the Bamseys. In her last Will she eliminated these bequests and instead gave similar small bequests to her brother Charles Zuschlag and her sister Lizzie Buffing. This is neither unusual nor unnatural. As people grow older, blood often becomes thicker than water and people are more likely to remember their family in their Will than employes who aided or befriended them in years gone by.
Instead of leaving her residuary estate in her 1953 Will to the Masons, as she had in her 1950 Will, Mrs. Thompson left it to her sister, Mrs. Stitt, and her sis
It was also natural that after Mrs. Thompson moved to Greenville she would bequeath a small legacy to several charities in or near Greenville. One of these charities — St. Paul’s Home — had been previously recommended by Mrs. Eichbaum, one of the witnesses for contestants, but Mrs. Thompson had refused to make the change until after she moved to Greenville. The change of her corporate executor was likewise not unnatural. Ever since the depression, many people are, or become dissatisfied with the services of their particular trust company, no matter how efficiently their estate may be managed.
To summarize: Mrs. Thompson’s last Will appeals to us, not as a highly unnatural one, but as a highly natural one.
2. The lower Court concluded that a confidential relationship existed between Mrs. Thompson and the Stitts; that this shifted the burden of proof; and that the Stitts had failed to prove that they had not exercised undue influence. In the view we take of this case, the lower Court’s interpretation of confidential relationship and the resultant burden of proof is imma
There was absolutely no evidence to show that the Stitts exercised undue influence or even any control, as those terms are used in the cases, over Mrs. Thompson. Her financial affairs were and had been taken care of and administered — not by the Stitts — but by Mr. Bieber, Vice President of the Merchants and Manufacturers National Bank of Sharon, since 1944. There was no evidence that the Stitts procured or even attempted to persuade her to make a Will in their favor ■ — indeed the evidence by the Stitts and by disinterested witnesses was exactly to the contrary; and the mere caring for a person, preparing her food and nursing
Opportunity for undue influence, suspicion and conjecture, do not create or amount to proof of either confidential relationship or undue influence: May v. Fidelity Trust Co., 375 Pa. 135, 99 A. 2d 880; Rosenthal’s Estate, 339 Pa. 488, 496, 15 A. 2d 370. See also: Zakatoff Will, 367 Pa. 542, 546, 81 A. 2d 430; Obici v. Third Nat. Bank & Trust Co. of Scranton, 381 Pa. 184, 190, 112 A. 2d 94. In Rosenthal’s Estate, 339 Pa., supra, the Court said (p. 496) : “ ‘ . opportunity is not evidence, and conjecture and suspicion do not take the place of testimony.” ’ ”
3. The lower Court points to three incidents as demonstrating that the Stitts exercised control and undue influence. “The first example is when Mrs. Frye suggested that Mrs. Thompson visit her. Mrs. Stitt refused to permit this. On another occasion Mr. Robertson offered to take Mrs. Thompson to Sharon to visit her store and Mr. Stitt prohibited this. A suggestion was made that Mrs. Thompson could be better cared for in a nursing home and Mr. Stitt stated that Mrs. Stitt would never stand for that. In addition, Robertson, who suggested this move, and the reduction of the nursing fee from $300.00 to $240.00 per month, was refused permission to return to visit Mrs. Thompson” [after he had visited her six to eight times].
Mrs. Thompson was an old lady of 83 years of age who obviously could not get around much. Because of her physical condition or her lack of desire, she never went any place after moving to the Stitts’ home in March 1953. She disliked her sister, Mrs. Frye. There is nothing to indicate that at the time of the suggested visit Mrs. Thompson wanted to visit Mrs. Frye or was well enough to do so. This is likewise
The lower Court and the appellees also rely upon the fact that the Stitts read Mrs. Thompson’s mail to her, operated the radio for her, made almost all her telephone calls for her, and recommended her doctor, her lawyer and her banker. This care and solicitude, without some substantial evidence of control which operated as a present restraint upon her at the time she made her Will, does not amount to proof of undue influence. Moreover, when an ill old lady, 83 years of age, comes to a strange city to live with her sister, to whom else would she turn except to her sister for the recommendation of a doctor, a lawyer and a banker? We note once again that the trial Judge described her doctor, lawyer and banker as “gentlemen of unquestioned integrity”. The lower Court and the appellees also place much weight upon the testimony that the Stitts never left Mrs. Thompson alone with her visitors from Sharon except for the briefest intervals. Wasn’t it natural for Mrs. Stitt who had no outside interests or amusements to want to see and talk with friends whom she and Mrs. Thompson had known for many years? How can that be interpreted as sinister influence when there is no evidence that Mrs. .Thompson ever wanted to be alone with her visitors or that the visitors ever asked to be left alone with her? Even
The trial Judge also relied on certain inconsistent or contradictory testimony of Mrs. Stitt and particularly of Mr. Stitt which he felt made them unreliable witnesses. Mr. Stitt gave testimony at the trial which was inconsistent with that given by him at the hearing nine months before to determine whether an issue d.v.n. should be granted. The trial Judge pointed out that at the prior hearing Stitt testified that he hadn’t seen Mrs. Thompson from the time he left Newcastle fifty years ago until she came to Greenville, whereas at the present trial he testified that he had seen her three or four times in Sharon. There was also contradiction and conflict between the Stitts as to whether Mr. Mortensen or they first suggested Mr. Dilley, and who telephoned Dilley. Stitt also testified that Mrs. Thompson’s health was good each month commencing with June 1953, whereas he wrote three letters stating that her health had been bad for a couple of days. The lower Court also lays emphasis on what it terms is a contradiction in Stitt’s testimony — he testified that he voluntarily reduced the payments from $300. to $240. a month, whereas two other witnesses testified that they pressed him to reduce the nursing fee. There was irreconcilable testimony as to what was done with the proceeds of a $150. Water Company dividend check.
In the first place, anyone who attempts to be truthful could make an honest mistake as to whether he had seen Mrs. Thompson three or four times in fifty years or whether he hadn’t seen her at all in fifty years. Stitt could have made an honest mistake as to whether he recommended Dilley to Mrs. Thompson or gave her
The lower Court also said that the failure of the Stitts to disclose, even though not asked, the exact amount they were being paid by Mr. Bieber to take care of Mrs. Thompson “alone would support the jury’s finding of circumvention, misrepresentation” and undue influence. Even if the Stitts’ explanation for their failure to voluntarily tell Mrs. Thompson the exact amount they were being paid, is disregarded, the lower Court is in error in saying that this failure of disclosure alone would amount to undue influence.
Mrs. Bamsey, a disappointed legatee, Mrs. Malcolm and Mrs. Eichbaum, all of whom were old friends, visited Mrs. Thompson several times when she was living at the Stitts’ home. Each of them testified that she was in a weakened condition and getting weaker and unable to talk much. Each of them testified that when Mrs. Thompson was alone she said (to each, separately) “I don’t like her” referring to Mrs. Stitt. Each of them said that Mrs. Thompson was just about the same as when she left Sharon, except that she was getting weaker. “She seemed to be weak, but she didn’t use her hands much, or try to move;” “She could not raise from the couch without help.” “She just never talked,”
Appellees overlook these important and controlling factors: (1) the Will itself was the clearly understood and desired act of Mrs. Thompson; (2) it represented the exact wishes and directions of Mrs. Thompson; (3) the Stitts did not procure it or know anything about its contents until after her death; (4) the Will was drawn and prepared by . Mrs. Thompson’s lawyer after she consulted with him and with a reputable bank President; (5) it was witnessed by her lawyer and her doctor who the Court found were men of unquestioned integrity; and (6) there was no evidence which was sufficient to prove that the Stitts possessed or exercised a control over Mrs. Thompson which destroyed her free agency and operated as a present re
All of the contentions of the appellees are specifically answered in the following cases:
In Brennan’s Estate, 312 Pa. 335, 168 A. 25, the Court said: “At the outset it may be stated there is no evidence that Thomas Kennedy or any other person exerted any undue influence in making the will. Kindly care and solicitous attention do not amount to undue influence. Advice or even persuasion while a person is a member of one’s household is not improper. Legitimate family and social relations are not prohibited though provisions of a will are thereby influenced and affected; such results are their natural and proper products: Dean v. Negley, 41 Pa. 312. ‘Undue influence’ connotes control of testatrix’s mind at the time and in the very act of making the will: Tetlow’s Est., 269 Pa. 486; Kustus v. Hager, Id. 103. There must be a present, operating and effective restraint upon the will of testatrix in the testamentary effectuation: Keen’s Est., 299 Pa. 430; Tetlow’s Est., supra; Phillips’s Est., 244 Pa. 35; Eckert v. Plowry, 43 Pa. 46; Wainwright’s App., 89 Pa. 220; McMahon v. Ryan, 20 Pa. 329. There was no compulsion or restraint on testatrix’s mind when the will was made, or at any other time.”
In Royer’s Estate, 339 Pa. 423, 12 A. 2d 923, the Court said: “. . . ‘From 1924 to the time of her death in 1936 she had resided continuously with her son •John who, together with his wife, had taken care of her with the tenderest and kindest solicitude. . . . Apparently in her opinion it was only fair to leave them approximately two-thirds of her estate and to leave the other third divided amongst her other children and
In Llewellyn’s Estate, 296 Pa. 74, 145 A. 810, a will was sustained which left the testator’s money to his best friend instead of to his relatives. The Court said: “. . . even in case of confidential relation, the burden of proof is placed upon the legatee only where he is instrumental in procuring the legacy. Here, Swartley did not draw the will or suggest that it be drawn or that he be made legatee. ... In summoning the attorney and in handing the draft of the will to Llewellyn, Swartley acted merely as his messenger. The active part which gives rise to the presumption must go to the substance of the testamentary act, not to some mere formal matter. In the absence of such procurement, no burden of proof rests on the legatee: Douglass’s Est., 162 Pa. 567; Miller et al. v. Oestrich, 157 Pa. 264; Messner v. Elliott, 184 Pa. 41.”
In King Will, 369 Pa. 523, 87 A. 2d 469, the Court said (page 530): “Where there is no evidence that the beneficiary solicited the bequest herself or wrote the will or procured it to be written, or that her advice was sought or taken, the existence of intimate friendly relations between the testatrix and beneficiary, such as
Appellees have undoubtedly misconceived and misapprehended the legal meaning of undue influence and the evidence necessary to establish it.
Decree reversed; judgment non obstante veredicto is here entered for the appellants Clara Stitt and John Lemont Stitt. Costs of $2264.27 representing cost of printing the record and appellants’ brief shall be divided equally between appellants and appellees.
It will suffice to say tliat no other verdict or conclusion could have been sustained.
Italics throughout, ours.
Italics throughout, ours.