Anderson v. Davis , 208 Okla. 477 ( 1952 )

PER CURIAM.

The question presented by this appeal is whether the will of Arne N. Anderson should be admitted to probate, or whether probate should be denied on the presented contest on the ground of undue influence. In such contest the cause is one of purely equitable cognizance and it is the duty of this court to examine the entire record and weigh the evidence. See In re Chubbee’s Will, 133 Okla. 156, 271 P. 681, where it was held in paragraph one of the syllabus:

“Will contest cases are of purely equitable cognizance, and upon appeal, in such cases, from the district court to the Supreme Court it is the duty of the Supreme Court to examine the whole record and weigh the evidence and render, or cause to be rendered, such judgment as should have been rendered in the district court.”

We have examined the entire record and we here set out the facts, circumstances and conclusions which in our view guide and direct the determination of the cause.

Arne N. Anderson was born in Norway where he received about a grade school education. He came to America in young manhood and lived with a brother and sister-in-law who taught him the English language. He was frugal in his habits and careful in his investments and accumulated an estate of the value of about $100,000 to $150,000. He had no immediate family of his own, but was on good terms with his brothers who predeceased him, and he remained on good terms with his several nieces and nephews. He died in May, 1948, when 86 years of age.

On the last day of 1944, or the first day of 1945, then aged about 83, Anderson sustained a broken leg in an accidental injury and was confined in a hospital more than a year. He was in declining health and vigor from the first of 1945 until his death three years and four months later, during which time he was back in the hospital a' time or two, and ill at times in his hotel room. It is clearly shown that during that period of about three years and a half he suffered substantial decline in physical health and strength and in mental competency, and in the initiative and aggressiveness which had marked his life in previous years.

During that three year period Mr. Johnson, principal beneficiary of the will, had charge of the business affairs, funds and property of Anderson and they were together much of that time and until Mr. Anderson died. Specifically the will named Mr. Johnson and his wife as principal beneficiaries.

It is that association between Mr. Anderson and Mr. Johnson, and the details of the transactions in reference to the property and in reference to the making of the will, that give rise to the claim of undue influence.

Mr. Johnson was cashier of the bank in which Mr. Anderson was a stockholder. Mr. Johnson had the will drawn which left $2,500 each to five nieces, and all other property, real and personal, to Mr. Johnson and his wife. The will was executed in the bank in Mr. Johnson’s presence on March 1, 1947. While Mr. Anderson was in the hospital on September 3, 1946, he executed, without consideration, a release of a mortgage on Mr. Johnson’s home which represented a loan made some years before. On the day Mr. Anderson died, or the next day, Mr. Johnson presented various assignments to himself of a bond of $10,000, and of Anderson’s bank stock and stock in two Building and Loan Associations, and on May 22, 1948, he recorded a deed by which Anderson conveyed to him a city lot and farm lands of high value. The assignments were dated Sept. 19th and 23rd, 1947, and the deed was dated October 16, 1946. It was Mr. Johnson’s position that the assignments and the deed were delivered to him when executed, and that he held them in secret or in confidence until Mr. Anderson died, because Mr. Anderson specifically requested it. He did not claim that any consideration was paid in any such transactions, but claimed that each such conveyance was a voluntary gift to him for friendly service.

Mr. Johnson admits having complete charge of the property and affairs of Mr. Anderson during the three and one-third years, during which time he made many collections and bank deposits, and wrote many check for Mr. Anderson, with a great many visits and conferences, sometimes several in a day, but he claims all this was at the request of Anderson and was but the performing of friendly services. He admits that he had the will drawn, but states that also was at the request of Mr. Anderson and that the will was drawn as he had requested it. It is his position that throughout all the transactions his motives were altogether wholesome. On the contrary, it is the position of his adversaries that Mr. Johnson was proceeding on a plan and design to obtain the Anderson property, and that presents the issue between the parties.

It is noted that throughout his life Mr. Anderson continued to pose and act as the owner of all his lands and corporate stocks and claimed to continue in that ownership although the conveyances to Mr. Johnson were dated as above set out long before Mr. Anderson’s death. There are several obnoxious contradictions in the testimony of Mr. Johnson. There can be no doubt that during all the above period a relationship existed between Mr. Anderson and Mr. Johnson which was highly confidential, and that relationship places on Mr. Johnson certain burdens in this litigation.

Of course, no man can say, to a certainty, whether Mr. Johnson’s motives were wholesome and pure, or whether designed to take advantage of this elderly man. It is our duty to weigh the evidence and observe the overall picture which is drawn by the acts, transactions and statements of the parties. In such a case it will not do for this court to merely scan the testimony in a perfunctory manner and approve the finding before us. When a citizen has passed away and his property is before the court to be passed to his heirs by law, or to an unrelated person by a will which it is charged he influenced for his private gain, this court must really weigh the evidence, in the highest and most conscientious sense of that term, with firm resolution to do justice in the instant case, within guidance of former precedent, and thereby laying down further precedent for future guidance of men and courts.

Mr. Johnson points to the long family friendship and to the friendship existing for many years between his father, now deceased, and Mr. Anderson, who were about the same age, and evidence is offered to show that the father gave valuable aid to Mr. Anderson by investment advice and counsel, and Mr. Johnson offers in explanation of the mortgage release that Mr. Anderson expressed the desire that Mr. Johnson and his wife have a home, free of all encumbrances. We consider those circumstances, but we note that the testimony of Mr. Johnson shows serious contradiction as to the execution of this mortgage release. We also note that Mr. Anderson rendered some aid to Mr. Johnson’s father as evidenced by the loan of several thousand dollars on his unsecured notes, which notes remained unpaid at Mr. Anderson’s death, and, also, we note the evidence that Mr. Johnson is a man of some substantial worth in his own right, aside from the Anderson properties.

Mr. Johnson points to the fact that the will was found in Mr. Anderson’s bank box after he died as indicating that Mr. Anderson had exclusive possession and control of the will from its execution until his death. That is a circumstance to be considered, but in that connection we note that, since Mr. Johnson was in control of all other items as aforesaid, he may have had access to the bank box. We cannot say he did because there is no direct evidence to that effect. We do observe, however, that the unpaid promissory notes above mentioned were not in the Anderson box, but were held elsewhere in the bank.

There is evidence that Mr. Anderson had executed a former will by which he gave Mr. Johnson his bank stock in the sum of $10,000 and divided the balance of his estate among his relatives. It is not shown just when that will was executed, but apparently it was several years before he died, and that apparently remained as his last will until late in 1946, when, in a conference with Mr. Johnson, Mr. Anderson for the first time discussed changing his will.

A controlling point in this case, or a strong point, is the fact that there is no showing that Mr. Anderson had any independent advice in connection with this will which gives the principal part of his estate to a person with whom he had this highly confidential relationship. In Hunter v. Battiest, 79 Okla. 248, 192 P. 575, this court said:

“When the legal presumption of undue influence has arisen by showing confidential relations, whether in dispositions of property inter vivos or by will, the burden of proof is upon the party seeking to take the benefit of such disposition to rebut the presumption attaching thereto by showing either a severance of the confidential relations, or that the party making the disposition had competent and independent advice in regard thereto. Gidney v. Chappel, supra; McQueen v. Wilson, 131 Ala. 606, 31 South 94.”

In the case of In re Kuhn’s Will, 120 Kan. 13, 241 P. 1087, it was held:

“When a will is prepared by the sole or principal beneficiary, who was the confidential agent, or who occupied a position of confidence or trust, to the testator, the instrument will not be held valid as a will unless it be affirmatively shown (a) that the testator read or knew its contents, and (b) had independent advice with reference thereto.”

In that case and in other cases in that court the term “independent advice” was held to mean:

“That the donor had the preliminary benefit of conferring fully and privately upon the subject of his intended gift with a person who was not only competent to inform him correctly as to its legal effect, but who was, furthermore, so disassociated from the interests of the donee as to be in a position to advise with the donor impartially and confidentially as to the consequences to himself of his proposed benefaction.”

In the case of In re Conroy’s Estate, 29 Wyo. 62, 211 P. 96, where the decedent was aged, and for a short period of years the principal beneficiary in the will managed the decedent’s property in and by reason of a confidential relationship, probate was denied and the court took occasion to enumerate the following elements of undue influence which should be considered by the court on the question of undue influence:

“(1.) The suspicion excited by the fact that the beneficiary drew the will gained strength when it appears that he was a stranger to the blood of the testatrix.

“(2) That by the will he takes a large or unreasonable proportion of the estate.

“(3) That he was the trusted or confidential agent or adviser of the deceased.

“(4) That he was present and active in the execution of the will.

“(5) That the testatrix was of advanced age, impaired faculties, and feeble of mind and body.

“(6) That she had no independent and disinterested advice with reference to making the will.”

All of the elements there stated are present in the case at bar, and also in that case, as in the case at bar, there had been some outside statements of intention to will or to leave the property to the principal beneficiary on account of friendship or acts of kindness.

In the case at bar there is no proof whatever that the testator Anderson had any independent advice concerning this devising of his property. The proponent points out that he had opportunity for such independent advice, but in that connection we note the forceful demonstration of high secrecy as to all the property transactions between testator and Mr. Johnson. The notary acknowledgments were taken by a notary public who was a permanent employee in Mr. Johnson’s bank. All the circumstances would imply or indicate that the testator did not have independent advice.

In Fairbank v. Fairbank, 92 Kan. 45, 139 P. 1011, the facts disclose that on March 31, 1906, the testatrix, a widow, deeded a large tract of land to her son. On February 14, 1907, she executed a will giving him almost all of her property and naming him as executor. On August 2, 1908, she died. The beneficiary offered the will for probate and his sister and the testatrix’ grandchildren contested the probate of the will. The will was denied probate on the ground of undue influence of the chief beneficiary. The court in discussing the question of undue influence gave great weight to the following circumstances:

“(1) The deed was not recorded until after the death of the grantor, and the other members of the family did not know of its execution.

“(2) The testatrix died at the age of 79 years.

“(3) For about 25 years before her death, her son Rudolph who is unmarried, managed her property and business, living with her for the last few years.

“(4) She was feeble and in ill health.

“(5) She had learned to read after she was 60 years of age.

“(6) She was to a certain extent enfeebled mentally by dropsy, heart disease and Bright’s disease (the latter being a kidney disease.) She was not as clear mentally as she had been.

“(7) She was not previously acquainted with the lawyer who drew her will and had never before employed him, while the beneficiary consulted with him as his attorney about that time.

“(8) Some 10 years before she died, Elizabeth Fairbank expressed an intention that her daughter, Mrs. Carter (one of the contestants) should have an equal share of her property, and she repeated this a year and half before her death.”

All those circumstances were present in the case at bar by direct proof or fair analogy, noting, however, that there are slight differences. While the confidential relationship as applied to complete property management in that case extended over a longer period than here, we have in this case a testator who was several years older.

In the case of In re Mullen’s Estate, 8 Cal. App. 2d 684, 47 P. 2d 746, the California court said:

“The testimony of appellant and his wife, besides being impeached as above shown, must also be weighed against the presumption of undue influence, which arises from proof of the existence of a confidential relation between a testator and a beneficiary, coupled with activity of latter in the preparation of- a will. In re Estate of Baird, 176 Cal. 381, 168 P. 561; In re Estate of Nutt, 181 Cal. 522, 185 P. 393. In the instant case decedent requested appellant to prepare a will, and the latter had his own wife pen it at his direction.

* -X-

“A previously executed testamentary writing, conflicting with the propounded instrument, executed voluntarily and while decedent had recognized mental capacity, is an evidentiary fact from which undue influence or unsoundness of mind at the time of the later writing might be inferred, there being no explanatory facts.”

In the case of In re Hampton’s Estate, 39 C. A. 2d 488, 103 P. 2d 611, the California court held:

“If the provisions of the propounded instrument vary radically from testamentary intentions which the decedent entertained previously-to the execution of the writing, this fact, when unexplained, is one of the recognized indicia of imposition or undue influence.”

We have- heretofore noted in this opinion the sharp differences between the former will of Anderson and the present will which was executed about a year after Mr. Johnson took over the detail management of the property, funds, collections and expenditures of the deceased.

In the case of In re Lance’s Estate, 216 Cal. 397, 14 P. 2d 768, a will was denied probate which named as the sole beneficiary a friend of 20 years standing, who was not related to testator by blood or marriage, but a confidential relationship existed between the two. The court there noted three important elements held to give rise to a presumption of undue influence, and held to place the burden on the proponent to show that he had not been guilty of undue influence as follows:

“(1) That confidential relations existed between the proponent and the decedent;

“(2) That the proponent ‘unduly profited by the terms of the will * * * to the prejudice of the heirs of the decedent.’

“(3) That the proponent actively participated in the execution of the will.”

All of these elements are present in the case at bar.

In the case of In re Rupert’s Estate, 152 Ore. 649, 54 P. 2d 274, the decedent had a former will naming his nephew as beneficiary. He later made a will naming his physician as principal beneficiary. The relationship there was a confidential one and the beneficiary denied that he had ever influenced the deceased in regard to his will. In the course of the opinion there and in reference to the situation, the Supreme Court of Oregon said:

“But denials alone will not suffice. He participated in the will making and owed a duty to give an explanation of occurrences which only he could explain. * * * Possessed of the influence which he held over the decedent, the latter’s mention of an intention to make a will, and includé a devise in it for appellant, should have caused the latter promptly to retire from the scene. If he wanted to participate, he should have surrounded the decedent with those of his old-time friends who would have given him disinterested advice.”

In the case of In re Lobb’s Will, 2 Appeals 173 Ore. 414, 145 P. 2d 808, and 177 Ore. 162, 160 P. 2d 295, there is this:

“Where a principal beneficiary under a will sustains a confidential or fiduciary relationship toward the testator, and actively participates in the preparation of the will, he must assume, when the will is attacked upon the ground of undue influence, the burden of proving that he did not exert such influence. In re Rupert’s Estate, 152 Ore. 649, 54 P. 2d 274; In re Knutson’s Will, 149 Ore. 467, 41 P. 2d 793. * * *”

In that case the principal beneficiary was an attorney at law and was the testator’s attorney, but the court there shows no disposition to limit the legal principle to be appliable only as between attorney and client. All know that relationship between men may be just as a confidential in fact when neither is a lawyer. In this case the record is such that all must agree that the relationship between Mr. Anderson and Mr. Johnson was such a confidential relationship of the highest degree.

We will cite no more decisions. We have selected these citations because we regard them as forceful statements, to be applied here. A multitude of authorities could be cited along the same line, but we deem it not necessary. We do not understand that proponent questions these rules of law. He does insist with vigor either that they do not apply here, or that their application does not guide to a reversal. However, that is a decision for this court to make in all sound judicial discretion. It is our duty to weigh the evidence and apply the law in full justice as we conscientiously view it.

Our duty here is a solemn duty because the case involves probably a fortune in amount, which will go by inheritance to the blood relatives of Mr. Anderson if we decide it one way, or which will go as a gift to his friendly banker if we decide it the other way.

We see no need to further detail the evidence. We have carefully considered the entire record. The contest to the will must be sustained on the ground of undue influence, on account of the showing made in that regard, and on account of the failure of Mr. Johnson to discharge the burden cast on him by the legal rules above referred to, and by the relationship shown by the facts and circumstances.

For the reasons stated the judgment is reversed, and the cause remanded, with directions to render judgment sustaining the contest and denying probate of the proposed will.

ARNOLD, C. J., and WELCH, CORN, O’NEAL, and BINGAMAN, JJ., concur. HALLEY, V. C. J., and GIBSON and DAVISON, JJ., dissent.