Stormon v. Weiss

SATHRE, Judge

(dissenting).

We are all agreed that the will was properly executed in due and legal form and that the testatrix had testamentary capacity to execute the will., The majority opinion concludes however that upon the record presented the question of undue influence is a question of fact and should be submitted to the jury. The writer is unable to agree with this conclusion.

The issue of undue influence is based upon the fact that the proponent of the will, a lawyer, drew the will and that he is the beneficiary under the terms, of the will. It is undisputed that the proponent who was the beneficiary drew the will. His testimony is that he was called by the testatrix to draw her will; that he drew the will; that he typed it on his typewriter in accordance with the terms dictated by the testatrix without any suggestions from him. He thereupon left the -will with the testatrix about twenty minutes while he went out and procured the attendance of a doctor and a lawyer as attesting witnesses. Both of them testified that they signed the will as witnesses at the request ot the testatrix in her presence and in the presence of each other and that she declared to them that it was her last will and testament. So far as the writer has been able to discover from reading the transcript there is no direct evidence nor are there any circumstances which would indicate that the testatrix after the execution of the will at any time indicated either by word or act that she had been subjected to undue influence or that she was dissatisfied with the provisions of the will. The will was executed shortly before she had an operation for removal of her gall bladder. She recovered from the operation and she lived for seven years thereafter without at any *524 time taking any action or expressing any intent to change or revoke the will. Earlier in her life she had executed two wills both of which she afterwards revoked. One of these wills was prepared by her shortly before she planned to take an ocean trip. In this will she left the property to her sister, a Mrs. Nerison. After her return from her trip the will was returned to her and it was destroyed. During the seven years after the execution of the will, she traveled regularly between North Dakota and Florida. She bought property in Florida of considerable value. During all of- that time she conducted her own business affairs, and if she had felt that undue influence had been exerted on her when she executed her will or that she was dissatisfied with its provisions, she had ample time and opportunity to change it. She had had experience in such matters previously for, as pointed out, she had drawn two prior wills each of which she afterwards revoked. In the Nebraska case, In re Fehrenkamp’s Estate, 154 Neb. 488 , 48 N.W.2d 421 , cited in the majority opinion, proceedings were brought to contest the will of the testator. The issue was tried to the court and a jury. At the close of the testimony the proponent moved for a directed verdict which was denied. The proponent of the will appealed from the order. The supreme court reversed the judgment of the trial court and remanded the case to the trial court with directions to enter judgment for the proponent upon the motion for a directed verdict. The contestant was a brother of the testatrix. There is evidence in the case that both before and after the execution of the will testatrix had told the contestant, her brother and others, that she left all of her property including her home to him. ■ (The contestant contended that the testatrix did not understand the nature of her act in making the will and relied upon the testimony of a non-expert witness who was permitted to testify over objection that in her opinion the testatrix did not know what she was doing when she made the will.

In the case of In re Thompson Estate, 153 Neb. 375 , 44 N.W.2d 814, 818 , the rule with reference to undue influence is stated as follows:

“ ‘In a will contest on the ground of undue influence the burden is on the contestant to prove by a preponderance of the evidence (1) that the testator was a person who would be subject to such influence, (2) that there was opportunity to exercise such influence, (3) that there was a disposition to exercise such influence, and (4) that the result was the effect of such influence.’ In re Estate of Farr, 150 Neb. 615 , 35 N.W.2d 489, 490 . Proponent directs attention to elements (1) and (4) of the above rule.

“ ‘In order to invalidate a will, undue influence must be of such a character as to destroy the free agency of the testator and substitute another person’s will for his own.’ In re Estate of Heineman, 144 Neb. 442 , 13 N.W.2d 569 . See, also, In re Estate of Goist, 146 Neb. 1 , 18 N.W.2d 513”.

And in the case of In re Heineman’s Estate, 144 Neb. 442 , 13 N.W.2d 569 , the Supreme Court of Nebraska said:

“Undue influence cannot be inferred alone from motive or opportunity. There must be some evidence, direct or circumstantial, to show that undue influence not only existed, but that it was exercised at the very time the will was executed.” In re Estate of Heine-man, supra.

The majority opinion cites the Iowa case In re Ankeny’s Estate, 238 Iowa 754 , 28 N.W.2d 414, 419 .

A close examination of the facts in that case show that they differ materially from the facts in the case at bar. The testator in the Iowa case was a widower living alone in a house on a farm that he had owned for a number of years. His estate was appraised at $31,000. The will was drawn by an attorney who was the beneficiary of one third of the value of the estate. The administratrix was the daughter of the attorney who drew the will. The will was executed on May 27, 1943. The testa *525 tor died on April 24, 1945 less than two years after the will had been executed. At the time of the execution of the will he was 85 years old. The will was dictated and prepared by Meeker, the attorney and under his direction. There was a long relationship of attorney and client between the attorney and testator and this relationship was in existence at the time decedent’s will was prepared. The will was retained by the attorney in his lock box and was under the control of himself and members of his family until after the death of the testator after which the will was filed for probate. With reference to the relationship between the testator and the attorney who dictated and prepared the will we quote from the opinion:

‘The court had a right to consider, in connection with the above facts, what might be termed a vigorous campaign by the Meeker family in an effort to maintain intimate relations with the decedent. After the death of Mrs. Ankeny the Meeker family commenced visiting testator and entertaining him on holiday occasions. They were constantly sending him postal cards and visiting him. This may have been the natural kindness toward an old man who lived alone, or it may have arisen from other reasons, but it added to and made stronger the relationship that existed between the decedent and his attorney.”

There is no evidence in the instant case of any such overtures by the proponent of the will or his family towards the testatrix. With reference to the manner in which the will was prepared in the Ankeny case the opinion states that the evidence shows that the will was dictated and prepared by and under the direction of the attorney who drew it and his daughter was nominated as executrix thereof. The will of the testatrix in the instant case was short and she could easily have read it during the twenty minutes she alone had it in her possession while Mr. Stormon was gone to procure the attesting witnesses to the will. She was about to submit to a major operation with a possibility that she might not survive the ordeal, and being of sound mind and memory she certainly would wish to ascertain the contents of her will. In this respect the circumstances surrounding the execution of the will of Ethel G. McIntyre the testatrix in the instant case, were materially different from the facts and circumstances in the Ankeny case. The testimony of Mr. Stormon is not contradicted and there is no testimony or circumstances from which it can legitimately be inferred that he in any way exerted any undue influence upon the testatrix. On the contrary, in the writer’s opinion, the evidence as to the conduct of the testatrix during the seven years after the execution of the will shows conclusively that she was entirely free to exercise her own judgment without any undue influence when the will was executed.

The question of undue influence was considered in the recent Nebraska case In re O’Donnell’s Estate, Neb., 64 N.W.2d 116, 123 . This was a will contest in which the validity of an instrument purporting to be the last will and testament of one Nellie O’Donnell was involved. The contestants were children of a deceased brother of the testatrix. The appeal is from an order directing a verdict in favor of the proponents of the will and ordering the will admitted to probate. The will gave to the proponents of the will and members of their family the major part of the estate of the testatrix. They were not related to the testatrix but were old friends and neighbors of the testatrix, and two of them, husband and wife, were nominated as executor and executrix respectively. As to the mentality of the testatrix in In re O’Donnell’s Estate we quote from the opinion of the Court:

“It appears from the record that the testatrix, during her childhood, school, and Sunday school periods in Saunders 'County, was described as slow to learn, backward, and having had much difficulty in comprehending her lessons. One witness described her in later years as ‘simple minded,’ and another witness described her as not possessed of normal understanding or intelligence. When she attended functions, social or *526 otherwise, she was accompanied by a ' member of the family to and .from the same, while her brothers and sisters were not restricted in this respect. She attended country school until she was 17 or 18 years of age and then attended a boarding school in Lincoln for a year. Her brothers and sisters attended Fremont, normal college and later taught school or engaged in gainful occupations, while the testatrix stayed at home and did house work described as ‘menial’ work. She had no outside friends as did the other members of the family. Her condition in such respect did not improve, at least, as shown by the testimony, up to the time of her father’s death in 1929, when she was 50 or 51 years of age.”

The main question on appeal was whether or not the trial court erred in not submitting to the jury the issue of undue influence alleged to have been exerted on the testatrix by Clara M. Topp and Adolph J. Topp, neighbors and friends of the deceased and who were the executors of the will. With reference to the elements necessary to be established to warrant the rejection of the will on the grounds of undue influence the court stated the rule which we have quoted from the case of In re Thompson’s Estate, supra. The court further stated that “the burden is on contestants to produce evidence tending to prove each of the four elements stated above, as a prerequisite of their right to have the issues submitted to a jury for determination. * * * If any one of the essential elements enumerated is not supported by evidence or reasonable inference drawn from a fact or facts otherwise established, the contention of undue influence must be rejected. The evidence must tend to show undue influence directly in reference to the will in question, and be of such nature as to control the will of the testator and cause him to do something that he did not intend. Suspicion or supposition of undue influence is not sufficient to require the submission of the question to a jury or to sustain a verdict.” We quote further from the opinion In re O'Donnell’s Estate, supra:

“It should be stated here that it is not the function of this court to determine the question whether or not undue influence has been established, but only the question whether or not there was ' sufficient evidence to justify submission of that question to a'jury. See, In re Estate of Kerr, 117 Neb. 630 , 222 N.W. 63 ; In re Estate of Noren, 119 Neb. 653 , 230 N.W. 495”.

The opinion -continues:

“In addition, there are other propositions of law applicable to a determination of this appeal as it relates to undue influence, as follows: A testator may dispose of his property as he pleases. The law does not require that he recognize his relatives therein, nor does it put any obstacle in the way of the aged or infirm in making disposition of their property by will; provided, only, that their mentality conforms to the accepted tests at the time of the execution of such testamentary instrument. See, In re Estate of Bose, 136 Neb. 156 , 285 N.W. 319 ; In re Estate of Goist, 146 Neb. 1 , 18 N.W.2d 513”.

In the instant case the record shows that after the execution of her will, and from 1943 to 1945 the testatrix bought U.S. bonds the maturity value of which was $6,500 and that the bonds contained Stormon’s name . either as joint payee,- or were payable to him in case of her death. The cashier of the Merchants Bank at Rugby testified that testatrix had been a customer of his bank for fifteen years; that she purchased U.S. bonds directly from the bank and that some bonds came in from the several bond drives; that the record of the bank showed that some of the bonds were issued directly to testatrix, but that a large number of them were payable to her and were payable on her death to John A. Stormon. These bonds were bought by herself, on her own initiative and it can not be said that she was influenced by Stormon when she bought them. This same witness testified that the testatrix personally conducted her business with the bank and that John A, Stormon never was with her in the bank. Reference *527 is also made to tlie testimony of Mr. Lutz. He was one of the attesting witnesses of an earlier will executed by the testatrix. He testified that he had known the testatrix since 1931; that he was with the Grpnvold Motor Co. at Rugby and that the testatrix had done a considerable amount of business with that company; that she was a bright and intelligent woman and in carrying on her business transactions she exercised her own independent judgment and seemed very capable.

The majority opinion is predicated upon the naked inference that may be drawn from the fact that the proponent of the will drew it and was the beneficiary thereunder. Standing alone without any evidence negativing such inference the question of undue influence might properly be submitted to the jury. But when we fairly consider the testimony in the record as to the business ability of the testatrix, her experience with wills, and other business matters after the death of her husband and particularly during the seven years after she executed the will in question, it seems clear that any inference, or even presumption, of undue influence has been completely overcome and removed, leaving no issue of fact for submission to the jury. As stated in the majority opinion:

“We have never considered whether a presumption of undue influence arises from the fact that an attorney draws a will under which he takes a substantial benefit. We have no statutory presumption applicable to this situation. Our careful study of the cases and texts dealing with this question leads us to the conclusion that we should not by judicial precedent establish a rule that a presumption of undue influence invariably arises from the fact that a will is drawn for a client by an attorney who becomes a major beneficiary under the will. The conditions under which such wills might be drawn could conceivably differ so greatly that such a presumption in one case would serve the ends of justice but in another would be an impelling force in the creation of injustice.”

Every person of sound mind and memory ■has the constitutional and legal right to dispose of his property by will in any manner that he may choose. It is a sacred right which courts are in duty bound to respect and protect. In the instant case the contestants have wholly failed to produce any evidence, .either direct or circumstantial, to . prove the four elements which are necessary prerequisites to have the issue of undue influence submitted to the jury for determination. True, there was opportunity for exertion of undue influence but there is not the slightest evidence that such influence was exerted by Mr. Stormon. Furthermore, as pointed out herein, there is no evidence in the record that the testatrix, subsequent to the execution of the will, ever intimated that she had been subjected to undue influence by Mr. Stormon; nor is there any competent evidence that the will of the testatrix was the result of undue influence. It seems clear to'the writer that the contestants have failed to establish by any credible evidence that the testatrix, Ethol G. McIntyre was induced to execute the will in question through any undue influence. It would therefore be unfair and unjust to the testatrix to submit the question of undue influence to a jury that might be more disposed to base a verdict upon the question whether testatrix in disposing of her property was fair to her relatives rather than upon her fundamental right to make disposition thereof as she saw fit and as she directed in her will. The motion for judgment notwithstanding the verdict should have been granted.

I am authorized to say that Hon. GEO. THOM, Jr., District Judge, sitting in the stead of GRIMSON, J., concurs in the views herein expressed.