In Re Haskell's Estate , 283 Mich. 513 ( 1938 )

The judgment should be affirmed. At the time the will was drawn, testatrix was about 82 years of age. She evidently was wholly inexperienced in business matters, as is shown by her contract with proponent. She agreed to pay him a 50 per cent. contingent fee, in addition to all expenses, for the collection of an account from the Battle Creek College, which in no way disputed the correctness of the account but merely asked for more time in which to pay it because of the financial conditions prevailing in 1932.

The confidential relationship of attorney and client existed between proponent and testatrix. A presumption of undue influence arises from the fact of this relationship, which presumption is founded on common experience. It is a presumption of fact, and its force and effect is for the jury, depending upon the circumstances of the particular case. In reMcMaster's Estate, 163 Mich. 210. Notwithstanding this presumption, proponent did not see fit to take the witness stand. He claims, however, that the presumption was rebutted by a showing that testatrix obtained independent counsel.

While it is true that proponent did not draft the will, he took testatrix from Bad Axe, Michigan, to Detroit, a distance of over 100 miles, in order to have the will drawn by a lawyer who shared offices with proponent. This attorney and proponent had occupied joint offices for a period of seven years, having one outer door and two small offices, one for each of them. They used the same library and employed the same stenographer. Their names, a number of years ago, appeared in a State gazetteer as if they were partners, although the attorney testified that such publication was unknown to him and that he and proponent never were co-partners. No certificate of co-partnership was ever filed by them. This lawyer was unwilling to state that he had not previously discussed with proponent the drawing of a will for decedent. When the will was offered for probate in the probate court, he appeared as attorney for proponent and conducted the examination of witnesses. Under these circumstances there was clearly a question for the jury and a verdict could not properly be directed for proponent. It cannot be said, as a matter of law, that there was a showing that independent legal advice was had. In the case of In re Eldred's Estate, 234 Mich. 131, the proponent, who was a physician of testatrix and held a power of attorney for her, recommended an attorney to draw the will, the attorney being a stranger to the testatrix. It was held that the presumption of undue influence was not rebutted and that proponent's motion for a directed verdict was properly denied by the trial court. In the case of In re McMaster's Estate,supra, the confidential agent recommended an attorney, procured the preparation of the will, was present when it was executed and acted as custodian until the death of testatrix. It was held that there was a question of undue influence for the jury. The fact that the draftsman was selected by proponent strengthens, instead of rebuts, the presumption of undue influence.

The cases cited by Mr. Justice SHARPE are distinguishable. In the case of In re Cochrane's Estate, 211. Mich. 370, the testator, not the proponent, selected the lawyer who drew the will. In Re Bromley's Estate, 113 Mich. 53, the question arose on the propriety of the charge to the jury and there was no question of directing a verdict for proponent. In Re Fay'sEstate, 197 Mich. 675, no confidential relationship between the testator and proponent was involved. In Re Browne's Estate,217 Mich. 621, the court held that when there was evidence of independent legal advice, it was not error to refuse to direct a verdict for contestant on the ground of presumption of undue influence. No question of directing a verdict for proponent was involved. In the case of In re Cotcher's Estate, 274 Mich. 154, it was not shown that the proponent procured the execution of the will. The cases holding that a showing of independent legal advice rebuts the presumption of undue influence are distinguishable from the present fact situation in Re Rosa's Estate, 210 Mich. 628. In that case, the attorney who drew the will had previously been employed by proponent and was a stranger to the testatrix. It was held that the presumption was not rebutted and that there was a question for the jury.

Since the presumption of undue influence was not overcome by the testimony, the question became one for the jury to determine, and it was not error to refuse to direct a verdict for proponent.

Objection was made to the introduction in evidence of a letter written by testatrix. When undue influence is shown, statements of the deceased are admissible to show her state of mind. In re Allen's Estate, 230 Mich. 584.

The judgment should be affirmed, with costs to contestants.

BUTZEL and CHANDLER, JJ., concurred with BUSHNELL, J.