“The critical inquiry in determining testator’s mental capacity to execute a will is directed to his condition of mind at the very time he signed the will and evidence of his previous or subsequent conduct is admissible only so far as it may throw light on his mental condition at the precise moment that the will was signed.”
How later courts described this case
- “The critical inquiry in determining testator’s mental capacity to execute a will is directed to his condition of mind at the very time he signed the will and evidence of his previous or subsequent conduct is admissible only so far as it may throw light on his mental condition at the precise moment that the will was signed.”
- party claiming attorney-client privilege has burden of establishing existence of privilege
Written by the judges who cited it.
The opinion
JOHNSON, Judge
(concurring).
The facts in this case have been set forth and discussed in detail and the law applicable to the issues has been fully and completely stated. I agree with the main opinion and the syllabus thereof.
There are circumstances present in the evidence in this case which give rise to an inference or presumption of undue influence. It is for the jury to appraise and determine whether on the basis of these circumstances and all the evidence presented undue influence entered into the execution of the will of Ethol G. McIntyre.
The trial court submitted this case to the jury on the theory that there were two general questions presented for its consideration. The court said:
“Two general questions are presented for your consideration, namely: (1) Was the testatrix, Ethol G. McIntyre, competent to make her will at the time the will in question was executed? and (2) Was the will in question procured by undue influence ?”
“You should first consider and determine the question of whether testatrix Ethol G. McIntyre was competent to make her will at the time she executed the same.”
“If you believe from a fair preponderance of the evidence that the testatrix Ethol G. McIntyre, at the time of making her will, which has been received in evidence, did not have testamentary capacity, then you need go no further in your deliberations to answer the second question as to whether the will was procured by undue influence, but you should find that the will in question is not the will of Ethol G. McIntyre, and if you do so .find, from a fair preponderance of the evidence, that she was then and there competent to make a will, you will also, in addition to signing a general verdict to that effect, sign the special questions submitted to you on the question of her competency.” (Italics supplied.)
Under the instructions as above set forth it is entirely possible that the jury in its deliberations rendered its verdict without ever considering whether the will in question was executed under undue influence. The court told the jury that it could do so. It also told the jury that if Mrs. McIntyre was incompetent to make a will that “in addition to signing a general verdict to that effect” the jury should sign the special question submitted as to her competency.
In rendering its verdict the jury answered the special question, “Was the testatrix Ethol G. McIntyre mentally competent to make a will at the time when she executed the same? A. No.” Then followed a general verdict: “We, the jury, duly empanelled and sworn to try the above entitled action, do find that the will in question and offered in evidence is not the will of Ethol G. McIntyre, deceased.”
The special finding in this case is authorized by our statute Section 28-1502 of. the 1953 Supp. to the North Dakota Revised Code of 1943. This statute says:
“and the jury shall make their answers thereto [referring to questions submitted] in writing. The court may also direct the jury, if they render a general verdict, to find in writing any particular question of fact, to be stated as aforesaid. * * * When the special findings of fact are inconsistent with the general verdict, the former controls the latter and the court must give judgment accordingly.”
The general verdict in the case at bar was in no way inconsistent with the answer *522 to the special question or special finding of fact. The special question or finding of fact stated that the testatrix Ethol G. McIntyre was not mentally competent to make a will at the time she executed the same, and for all that can be ascertained, the'general verdict rendered by the jury to the effect that the will in question was not the will of Ethol G. McIntyre could involve the same considerations by the jury as the answer to the special question. It, therefore, appears that it is entirely possible that the jury never did reach the second issue presented in this case. It is impossible for this court to determine from the general verdict rendered by the jury whether it did, or did not, consider the second issue presented of undue influence. We must assume that the jury did not, in view of the instructions presented, consider the question of undue influence.
This court has held many times that a judgment notwithstanding the verdict should not be granted unless the moving party is entitled to judgment on the merits as a matter of law. Westerso v. City of Williston, 77 N.D. 251 , 42 N.W.2d 429 , and cases therein cited. A motion for judgment notwithstanding the verdict will not be granted where there is an issue for the jury to pass upon under the evidence as it does not go to the weight of the evidence. Nelson v. Scherling, 71 N.D. 337 , 300 N.W. 803 , at page 804. In passing upon such matter the evidence is considered in the light most favorable to the party against whom the motion is made. State ex rel. Brazerol v. Yellow Cab Company, 62 N.D. 733, 736 , 245 N.W. 382, 384 .
The circumstances under which an attorney draws a will for a client by which he is the sole beneficiary and retains pos-, session of the will necessarily raises the issue of undue influence. The authorities cited in the main opinion amply support the proposition that the determination of whether there was undue influence is for the triers of the facts.
The cases and authorities cited in the main opinion support the rule that a presumption of undue influence arises where an attorney takes a substantial benefit under a will drawn by him for a client; that under such circumstances it is up to him to explain and show that the gift was freely and voluntarily given and that he did not embrace the opportunity of exerting undue influence; that the burden of overcoming the presumption of undue influence and possible unfair dealing raised by the law as a protection to a client against the possible strong influence that may be exerted by an attorney in the confidential relationship existing between him and his client can be overcome only by the clearest and most satisfactory evidence; that the disputable presumption of undue influence by an attorney who-has drawn a will for a client in which he is a substantial beneficiary is one that must be overcome by evidence introduced by him as proponent of the will and is a question to be determined by the jury; that the strength of such presumption and the amount of evidence required to overcome it must be dependent upon the circumstances of each case; that where facts, such as here, are involved they permit but do not command a finding of undue influence, but they at least make a prima facie case for the jury which the jury may either accept or reject; that some of the cases indicate that a suspicion or inference of undue influence requires that under the facts and circumstances of the case the question be presented to the jury.
There was an inference or presumption of undue influence present in the case at bar and the jury was instructed on the basis that the issue of undue influence was a question of fact for their determination. If this -court grants the motion for judgment notwithstanding the verdict, such determination would as a matter of law be a declaration that there was no inference or presumption of 'undue influence involved, or in any event, it would amount to a declaration that if there was an inference or presumption of undue influence, that it was overcome by evidence presented by the proponent of the will. That is also a question of fact and one that should be determined by a jury. It is the basic reason why *523 the motion for judgment notwithstanding the verdict should not be granted.
No matter what our views might be as to the weight of the evidence of undue influence, it is for the jury to pass upon that question.
It is for the jury to pass upon all questions of fact, and since the determination of whether there was undue influence is a question of fact, or whether an inference or presumption thereof was overcome by evidence, is also a question of fact, this court in the initial instance, in a jury case, may not pass upon that question.
If a new trial is granted in this case and no other evidence or newly discovered evidence is presented bearing on the mental capacity of Ethol G. McIntyre, it would appear that the main opinion would amply support the theory that the issue of testamentary capacity or competency of the deceased to make a will- has been determined, and that the only issue remaining in this case is whether or not there was undue influence exerted in the execution of the will of the deceased.
This court has held that it is not at liberty to review or revise the action of the jury unlesb the verdict is without substantial support in the evidence. Keller v. Reichert, 49 N.D. 74 , 189 N.W. 690 . Neither should this court, on a question of fact, in a jury case, substitute its determination upon such question of fact for that of the jury. A motion for judgment notwithstanding verdict will not be sustained where there is an issue for the jury. Nelson v. Grondahl, 12 N.D. 130 , 96 N.W. 299 ; Olstad v. Stockgrowers Credit Corporation, 66 N.D. 416 , 266 N.W. 109 . Likewise a motion for verdict notwithstanding judgment will not be granted where there is an issue for the jury.
It can not be said in this case that the motion for judgment notwithstanding the verdict should be granted as a matter of law. The judgment appealed from should be reversed and a new trial granted on the issue of undue influence and also on the issue of testamentary capacity or competency of the deceased to make a will, if it should appear at a new trial that new or additional evidence is available for presentation to a jury upon that question.
For the reasons here stated, as well as those set forth in the main opinion, the motion for judgment notwithstanding the verdict was properly denied.