122 Neb. 771 | Neb. | 1932
Lead Opinion
This is an action brought by Harry Wixson, guardian of the person and estate of Amy E. Wixson, incompetent, against Nebraska Conference. Association of Seventh Day Adventists.
Briefly, it is alleged in the petition that the ward had on the 10th day of July, 1928, certain building and loan stock of the value of $3,000, which the defendant, Nebraska Conference Association of the Seventh Day Adventists, induced her to assign to it without consideration. The plaintiff claims that this $3,000 represented practically all of the ward’s estate; that she was at the time
A brief statement of facts will suffice. The plaintiff’s ward, Amy E. Wixson, was at the time of the transaction involved 79 years of age, a widow, the mother of several children, a grandmother, a devout member of the Seventh Day Adventists church, and possessed of $3,000 in the Nebraska Central Building & Loan Association of Lincoln, and perhaps- $500 worth of other property.
The contract, by which conveyance was made, was prepared at the office of the defendant association at Grand Island; one of its officers submitted it to Mrs. Wixson for execution before defendant’s counsel at Lincoln, and subsequently she was escorted by the same officer of the defendant association to the building and loan association, where formal transfer was made of the stock to the defendant by Mrs. Wixson.
The record of the evidence is voluminous, but it is unnecessary to quote from it, since it is ample to sustain the verdict, assuming that the issues were submitted to the jury under proper instructions. We shall, therefore, consider the assignments of error in relation to instructions. The first of these relates to instruction No. 8 given by the court. This instruction is as follows:
“Where a person who is mentally infirm from old age and feeble of mind or diseased, and because of such condition may be easily persuaded, deals with another in*773 whom she reposes special trust, confidence or dependence either for advice or - spiritual guidance, under circumstances which suggest an unfair advantage, undue influence or fraud, and without consideration, makes a voluntary gift or conveyance of all or nearly all of her property in an unnatural or improvident manner and without independent or disinterested advice, the law presumes that such gift or conveyance was obtained by undue influence, and the burden is upon the donee or person receiving the gift to prove by a preponderance of the evidence that the gift was fairly obtained and without undue influence and-that it was the free and voluntary act of the giver. Therefore, if you find from the evidence that the plaintiff’s ward, Amy E. Wixson, was old and mentally weak or so enfeebled by age or disease as to be readily susceptible of easy persuasion, and that she had placed trust, confi-' dence or dependence in and upon the defendant conference or its agents, officers or ministers, and that the gift, as claimed by the defendant, represented all or nearly all of the property of the ward and was so improvident and ill-advised on her part as to leave her without means of support in her old age, and that the gift was made without independent or disinterested advice, and that the gift was an unnatural disposition of her property as ignoring the rights of her family, then you are instructed that the defendant must prove by a preponderance of the evidence that the transaction was voluntary, open and fair, and that there was no fraud, imposition or undue means, and that the ward understood the nature and the consequence of her act and that it was not done through the undue influence of the defendant or its agents.”
The defendant’s contention is that this instruction does-not properly state the law, that it places the burden upon the defendant to prove that there was no undue influence, and contradicts instruction No. 2, which assumes to place the burden of proving undue influence and mental incapacity upon the plaintiff. Instruction No. 2 is as follows:
*774 “You are instructed that in this case the burden is upon the plaintiff to prove by a. preponderance of the evidence that the defendant, some of its officers, ministers or agents acting for and on behalf of the defendant, by some act or persuasion, or because of some special trust or confidence which Mrs. Amy E. Wixson imposed in such person, unduly influenced her to make the transfer or assignment in question.”
Instruction No. 8 merely says, in substance, that if the jury find from the evidence that Mrs. Wixson was mentally so enfeebled by age or disease as to be easily susceptive of persuasion, and that she had placed trust or dependence in the defendant, and without consideration made a conveyance of nearly all of her property to the defendant without independent or disinterested advice, the law presumes that such conveyance was obtained by undue influence, and the burden is then upon the donee to rebut the presumption. We think this instruction correctly states the law.
In Gibson v. Hammang, 68 Neb. 349, the court held:
“Where a conveyance from a parent to one of several children * * * is not a just or reasonable disposition of the parent’s property, and the age and physical condition of the parent, the proportion of the property conveyed to the whole estate, and the circumstances surrounding the gift suggest * * * undue influence, * * * the burden is upon the donee to overcome the presumption of fact arising from such circumstances.”
In In re Estate of Noren, 119 Neb. 653, the court again held:
“It may be stated generally that, where a testator who is aged and infirm, with his mental faculties impaired, makes a will * * * in favor of a confidential adviser who is actively concerned in the execution thereof, and who receives * * * valuable property or rights under the will, there arises a presumption of undue influence, and * * * it devolves upon the beneficiary to overcome the presumption * * * by competent evidence sufficient for the purpose.”
It is not necessary to discuss other assignments of error, as they relate largely to the refusal of the court to give certain instructions tendered by the defendant, and we are of the opinion that the instructions given by the court were sufficient.
Finding no reversible error, the judgment of the trial court is
Affirmed.
Dissenting Opinion
dissenting.
I am entirely unable, after a careful study of the bill of exceptions and the briefs, to agree with the opinion adopted in this case. The facts as shown by the evidence disclose that Mrs. Wixson, a woman about 80 years of age, attended Adventist camp meetings for many summers; that at the Shelton meeting held in 1926 or 1927 she met two old ladies who told her that each of them had purchased annuities of the Nebraska Adventist organization, one in the amount of $2,000, and the other for $2,900. She thought this matter over for several years, but did not consult her children. It is proved beyond question that no minister, or officer of the organization, ever talked to her about this matter, or solicited this annuity, directly or indirectly, until she approached the president of the organization, Rev. S. G. Haughey, who signed all such documents. His testimony is that, at the close of a service in the Adventist camp meeting, held in Epworth Park, Lincoln, in August, 1928, as he was walking directly from the pavilion to his tent, Mrs. Wixson came up to him. “Q. Now, tell the jury what talk you had with Mrs. Wixson at that time. A. After pass
The children of Mrs. Wixson charge that their mother was incompetent and that undue influence was practiced upon her by this church organization, but no proof thereof is submitted by them. Her, son Harry, who is her guardian, testified that she told him she transferred it to the association because they paid her 1 per cent, more interest than the bank would pay her, and added that “banks went busted,” but that “God was back of the Conference.” He further testified that his mother did not approve of the children trying to get the money back from the church. Her son Silas also testified that she was incompetent, and that he had borrowed $300 of her so nobody else would get it, but admitted • that she took a mortgage back on his threshing machine for security for the loan to him. To prove her incompetence, her children testified that she lived miserly, nearly starved herself, that she saved milk tops, old cans, and used bread wrappers for napkins, and insisted on wearing old, ragged and patched garments, and lived in a little three-room hut with her oldest son, a rheumatic cripple. No one testified to her incompetency except her own children, who may share the money after her death if it is recovered, and who have now placed her under guardianship. Against this evidence we find that of men who are not personally interested in the outcome of the case. H. F. Bauman, a coal dealer and neighbor, had had many deals with her, and was of the opinion that she was entirely competent. W. H. Crouse, another neighbor, considered her rational
It is claimed that she parted with her money - without consideration, yet the purchase of annuities is the most popular form of investment for old people in England,, and many in this country regret not having purchased-annuities. Upon what basis can this court declare that, the purchase of a safe annuity, with a legal contract binding a large state-wide church organization, is entirely without consideration?
Upon this state of facts, the trial court gave instruction No. 2, set out in the opinion, in which it was rightly stated that the burden of proof of undue influence was-upon the plaintiff alleging it, and in No. 6 the jury were told that there must be proof that the assignment was-, obtained by undue influence. Latham v. Schaal, 25 Neb. 535; Seebrock v. Fedawa, 30 Neb. 424. Commissioner-Pound said, in Boggs v. Boggs, 62 Neb. 274: “Undue influence, in order to invalidate a will, must be of such character as to destroy the free agency of the testator and substitute another person’s will for his own.” And Judge Day said, In re Estate of Bayer, 119 Neb. 191, that,, in such a case, suspicion or supposition of undue influence-is not sufficient either to require the submission of the question to the jury or to sustain a verdict. Now, departing from the line of these decisions, the trial court, in instruction No. 8, set out in the opinion, in my judgment-confused the jury by changing the burden of proof, under certain conditions not found in the evidence in this case, and instructed the jury that the burden shifts and requires the person receiving the gift to prove by a preponderance of the evidence that it was obtained without undue influence; The-jury from this instruction would' conclude ■that" the judge considered-that all of the requisite-' ’
If a determined old lady, who knows her own mind and without consulting her children, carries out her own wishes in that regard and buys an annuity contract, can have her wishes held for naught and the contract set aside upon evidence such as offered in this case, then no such annuity can stand in this state against such attacks. The entire evidence discloses that the conduct of the officers of this church organization was above reproach, for, even after she sought them out and asked for the investment, they did not press the matter, but gave her every opportunity to seek other advice and change her desires.
It is a matter of common knowledge that colleges, hospitals, homes for the aged, universities, ministerial benefit funds, missionary societies, American Bible Society, and many forms of individual church organizations, all seek to pledge payment of annuities on funds placed with them on practically the same form of contract as used in this case. If this decision becomes the law of Nebraska, it will be useless for such organizations to seek such deposits without securing the consent of all of the prospective heirs of the annuitant.