# In Re Estate of Elmer

> North Dakota Supreme Court · October 8, 1973 · 210 N.W.2d 815

URL: https://www.frixlaw.com/law-library/cases/9724249

## Case

- **Full name:** In the Matter of the ESTATE of D. W. ELMER, Deceased. Lena ELMER Et Al., Contestants and Respondents, v. Jake N. ELMER, Proponent and Appellant, v. Lawrence ELMER, Henry Elmer, and Interested Parties, Respondents
- **Court:** North Dakota Supreme Court
- **Decided:** October 8, 1973
- **Citations:** 210 N.W.2d 815
- **Precedential status:** Published
- **Opinion:** Dissent by Teigen
- **Judges:** Erickstad, Son, Paulson
- **Cited by:** 132 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9724249

## Opinion text

*821 TEIGEN, Judge
(dissenting).
I dissent. I fully realize that under Rule 52(a), N.D.R.Civ.P., we are bound by the so-called “clearly erroneous” rule in reviewing findings of fact of the trial court. I also agree that the mere fact that this court might have viewed the facts differently had it been the initial trier of the case does not entitle us, under that rule, to reverse the lower court. However, on the entire evidence, where the reviewing court is left with a definite and firm conviction that a mistake was made by the trial court, it has a duty to reverse the lower court. United States v. United States Gypsum Co., 333 U.S. 364 , 68 S.Ct. 525 , 92 L.Ed. 746 (1948). In this case I am firmly of that conviction, and therefore believe that the majority have erred.
As noted by the majority, this case has been tried twice. They were both complete trials, one in the county court and the other on appeal de novo in the district court. It is agreed that the testimony was similar in both trials. Each of the judges of these courts is a good and qualified judge, learned in the law. However, they arrived at opposite conclusions. The judge of the county court found that the testator, D. W. Elmer, was competent and that the will was not executed as the result of undue influence. He therefore admitted the will to probate. The judge of the district court made no finding on the question of competency, but determined that the will was obtained and was the result of the exercise of undue influence, and adjudged that it was invalid and not entitled to probate. Both found that the will was legally executed. After a careful study of the entire evidence I am left with a definite and firm conviction that the judge of the district court made a mistake, and that he should have affirmed the county judge’s decision.
D. W. Elmer, at the time of the execution of the will in question, was seventy-three years of age. He was a single man. All his life he had resided on the home farm in the vicinity of Hebron, North Dakota. He lived there with his sister, Lena, also single, who was sixty-eight years of age. They had inherited this 1200-acre farm, together with all the personal property located thereon, from their parents, and owned it in common. In addition, they had accumulated a bank account, amounting to about $42,000, which was held in joint tenancy with the right of survivor-ship. It had been a successful operation, and nowhere in the evidence is it indicated that D. W. Elmer had relied upon his brother, Jake, in any way before January 11, 1972. In addition to his sister, Lena, and his brother, Jake, aged seventy, D. W. also had a brother, Henry, aged eighty-four, a sister, Rachel, aged eighty, and a sister, Marie, aged sixty-seven. Although D. W. and Lena had inherited the farm from their father, together with the personal property located thereon, the father, during his lifetime, had made a gift of separate farms to each of D. W.’s brothers, Henry and Jake. In addition, he had made gifts of $3,000 to each of the children.
Although Henry is living in a retirement home in California, there is no proof that he is poor. He had sold his farm in North Dakota and moved to California. He owned his home there, where his wife was living at the time of trial. Lena Elmer, of course, is financially well-fixed. The two sisters, Rachel and Marie, left home years ago and have had no relationship with D. W. for years.
On January 11, 1972, D. W. telephoned his brother Jake and requested a ride to the hospital at Richardton because he was ill. Jake first took him to the hospital, as requested, and then, at the request of the hospital authorities, he was taken to the office of Dr. Neville Jones. Dr. Jones diagnosed congestive heart failure, and directed that D. W. be hospitalized. Jake then returned D. W. to the hospital, and then went home.
The doctor ordered that D. W. be treated with bed rest and placed on a low salt diet. He ordered oxygen for him at inter *822 mittent periods, as needed, and prescribed three drugs. These drugs did not affect the patient’s mental processes.
The doctor testified that, on the following day, January 12, 1972, he found his patient to be clear and coherent; he answered questions rationally and without difficulty, but showed a certain amount of apprehension which, he testified, occurs frequently in people suffering from congestive heart failure. The doctor then prescribed morphine sulfate, with instructions that it could be repeated every six hours, if necessary, at the discretion of the registered nurse on duty. He gave permission to substitute Demerol. The doctor testified that each of these drugs exert virtually the same medicinal effect. Both are narcotics.
Demerol was muscularly injected at 2:50 p. m., on January 12. The dosage was seventy-five milligrams, which, according to the doctor, for a person of D. W.’s size and physical condition, was classified as a moderate dose. The effects were described as being hypnotic and having a direct effect upon the brain of the patient, making things a little more pleasant for him and producing euphoria. He described this as giving the patient a “lackadaisical, happy-go-lucky, slightly airy feeling.” The effect of the drug would commence about twenty to thirty minutes after injection, reaching maximum intensity perhaps forty-five minutes to one hour after injection, and then gradually diminishing. He testified that its main effects would have worn off in about four hours but that there might be some residual effect for a further two hours, or a total period of about six hours. No further Demerol was administered until January 14.
The doctor also saw his patient on the morning of January 13, 1972. He found his condition improved and his color good. He testified that he looked better and felt better. His patient indicated no inability to talk to him rationally or to discuss his situation on that day, and continued to show day-to-day improvement until January 14.
D. W.’s attending physician testified that, in his opinion, D. W. was a perfectly sane man, although he was distressed and apprehensive. He testified that on January 14 he noted some sagging in his patient’s face and that the hospital record disclosed that on January 12 the patient had complained that the thumb and first finger of his right hand felt numb. This indicated to the doctor an interference with the blood supply in the nerve area of the brain which controls the arm and hand, and he concluded, on January 14, that the numbness was the onset of a stroke, which was the ultimate cause of his death on January 19.
The evidence establishes that at about 2 p. m. on January 12, D. W. asked a nurse to telephone his brother Jake to come and see him. In response, Jake came to see D. W. at the hospital at about 4:30 p. m. and, according to Jake’s testimony and the hospital records, he stayed and visited with his brother for a period of twenty-five to thirty minutes. Unquestionably, at this time, the effect of the Demerol was at or near its maximum, and it was during this visit, the contestants claim and the trial court found, that Jake exercised undue influence upon his brother. Three hours elapsed before Jake returned with Attorney Kurt H. Krauth.
Mr. Krauth has practiced law in Hebron since 1934. He had done legal work for D. W. Elmer, on occasion, “probably once a year over a period of about twenty years.” He had done no legal work for Jake Elmer.
D. W. Elmer had been in Kurt Krauth’s office in Hebron on January 5, 1972, for the purpose of having him complete a Social Security tax reporting form. On that occasion, D. W. had mentioned to Mr. Krauth that, because of his advanced age and because he hadn’t been feeling too well, he ought to make some provision for the disposition of his property, and stated that he had in mind giving his property to *823 his nephew, Lawrence Elmer. This conversation did not go beyond the discussion stage.
Mr. Krauth testified that on arriving at the hospital on January 12 he asked Jake Elmer and his son Lawrence, who had accompanied them, to leave the room as he did not want them present if he was going to discuss with D. W. the making of a will. He testified that after the two men had left the room, and in his discussion with D. W. relative to making a will, he recalled the incident of January 5 and asked D. W. if he still had the same intention, and was told by D. W. that it was his desire to leave all his property to his nephew Lawrence. Mr. Krauth took notes of this conversation, which notes were introduced in evidence. Mr. Krauth testified that, in his opinion, D. W. Elmer was rational and normal, that he gave answers to all questions which were asked, and that his mind appeared to be perfectly clear. He also testified that after he had obtained the information necessary for drawing the will he obtained a table upon which to place a typewriter, which he had brought with him. He then typed the will in accordance with his notes. When the will had been prepared he went back into D. W.’s hospital room and read the will to him, word for word; that D. W. agreed that the will was drawn in accordance with his wishes. Mr. Krauth then went into the hallway and obtained a second witness to the will. This second witness was Gayle Heinsen, a male nurse who is employed at the hospital and who is in charge of nurses. Following the necessary legal preliminaries, Mr. Krauth handed D. W. a felt-tipped pen with which to sign the will. However, D. W. was unable to sign the will because of a numbness in his right thumb and forefinger. Mr. Krauth then suggested that he sign by affixing thereto his mark in the form of an “X”. This was done, and the will was witnessed by Mr. Krauth and Mr. Heinsen in accordance with the procedure required for the execution of wills. Mr. Krauth then folded the will, put it into an envelope, and kept it in his possession.
Mr. Heinsen confirms the execution of the will in accordance with the explanation made by Mr. Krauth. He also testified that at the time of the execution of the will Mr. Elmer appeared to him to be coherent and rational; that he had no reason to believe that D. W. was not in control of his senses; that he knew what was going on and understood what he was doing. The will was executed at about 8 p. m. Mr. Heinsen knew that D. W. had been administered seventy-five milligrams of Demerol at about 2:50 that afternoon, but stated that D. W. did not appear to be under the influence of the drug at the time of the execution of the will. He testified that it was his opinion that D. W. had testamentary capacity, as that term had been described to him by counsel on cross-examination.
There is much evidence that D. W. Elmer was a man of strong will and character. He was a successful farmer and managed his own business and, although he had inherited substantial property, he had, in addition, accumulated substantial additional properties and money. There is no contention on the part of any witness that at any time prior to D. W.’s admission to the hospital, he was incompetent or a person susceptible to influence. In fact, D. W. initiated the action which resulted in the will being drawn and executed when he directed the nurse to telephone his brother to come and see him. There is no evidence which would indicate that he did not also direct the chain of events which followed. The testimony of the doctor, of the nurse in attendance, and of the attorney who drew the will indicate that, except for his apprehension, D. W. was normal mentally. According to the doctor the effect of the drug Demerol, administered over five hours before the execution of the will, had but a residual effect. There is no evidence which would permit the presumption that diminution of the blood supply to the *824 brain, causing the numbness of the forefinger and thumb of his right hand, had any effect upon his mental processes.
Further, there was no unusual opportunity on the part of Jake to exercise undue influence upon his brother. He came to the hospital as a result of his brother’s call at about 4:30 p. m. He remained there for a period estimated to be from twenty-five to thirty minutes, after which he left to carry out his brother’s request. There was another patient in the room, separated from D. W. by a curtain.
There is no evidence that at any other time prior thereto had D. W. consulted with his brother relative to any business matters. There is no evidence that a confidential relationship existed between D. W. and his brother Jake. I find no evidence that there was any unusual opportunity on the part of Jake to exercise undue influence upon his brother. There are no facts upon which an inference or presumption of an opportunity to exercise undue influence existed under these conditions. The disposition to Lawrence is not unnatural as it is clear from the evidence that D. W. had a strong bond of affection for his nephew Lawrence, who had worked for him on the farm a good part of his life, ever since he was ten years old.
There is no direct evidence' that undue influence was exercised by Jake upon D. W., nor is there any evidence, nor are there any circumstances, which would indicate that D. W., after the execution of the will, indicated by word or action that he had been subject to undue influence, or that he was dissatisfied with the will, although, according to the doctor, his condition had improved the next couple of days. The congestive heart condition did not cause his death. Death, caused by a stroke, occurred seven days later.
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 the courts are duty-bound to respect and protect. In this case it is my opinion that the contestants have wholly failed to produce any evidence, either direct or circumstantial, to prove the four elements which are necessary prerequisites for establishing undue influence. For these reasons, I would reverse the judgment of the district court, with directions to enter a judgment affirming the decree of the county court admitting the will to probate.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9724249. Public record. Not legal advice.