51 N.W. 614 (Minn. 1892), In re Timothy Hess' Will. Mary Foster

• Citation: 48 Minn. 504,51 N.W. 614
• Date: 07 March 1892
• Docket Number: .
• Parties: In re Timothy Hess' Will. Mary Foster et al. v. Ella Dearborn et al
• Court: Minnesota Supreme Court

Page 614

51 N.W. 614 (Minn. 1892)

48 Minn. 504

In re Timothy Hess' Will. Mary Foster et al.

v.

Ella Dearborn et al

Supreme Court of Minnesota

March 7, 1892

November 9, 1891, Argued

Appeal by Ella Dearborn and James Hess, proponents of the will of Timothy Hess, deceased, from an order of the district court of Winona county, Start, J., made January 23, 1891, refusing a new trial in the matter of the probate of the will.

Timothy Hess, deceased, made his will September 24, 1888, at the house of Theodore Searl, a justice of the peace, at Witoka, in Winona county, Minn. Mr. Hess and Ella Dearborn, his daughter, came to Mr. Searl's house at about eleven o'clock in the forenoon, and stayed until three o'clock in the afternoon. The daughter stated that her father had come to have Mr. Searl draw his will, and told, in his presence, how he wanted to dispose of his property. The testator was seventy-three years old, and had no wife, but had five children, viz. Mary Geeslin, Emma Tate, Cornelius Hess, Ella Dearborn, and James Hess. It appears, also, that Mrs. Dearborn had a son, George G. Ford, by a former husband. She lived in Chicago, Ill., and was then on a visit to her father. Mrs. Geeslin was divorced from her first husband, and afterwards married Mr. Foster, and lived at Baraboo, Wis. Mrs. Tate's husband died, and she afterwards married Mr. Ryan. Cornelius was married, and lived at or near Spokane Falls, Wash.

The testator told Mr. Searl, when he was about to draw the will, that he wished to give Mary but $ 50. Mr. Searl testified that he expressed surprise that the amount was so small, whereupon Mrs. Dearborn said that her brother James wanted Mary to have but five dollars, -- just enough so she could not break the will. He also testified that Mr. Hess did not say much, was not talkative, but appeared like a man that was hardly satisfied with what he was doing; that, when the amount was mentioned which Cornelius was to have, Mrs. Dearborn said that Cornelius' wife was keeping a ranch of bad repute near Spokane Falls. The testator appeared like a man that was doing something that he seemed to think necessary, and that had got to be done, but did not seem to like to do it. After it was completed he said it might not amount to anything. He seemed to be studious and very thoughtful. He did not appear to be satisfied with what he was doing. Searl further testified that when Hess came to his house he told Searl he had come to have his will drawn. Searl asked him how he wanted it drawn, and he told him, and it was discussed more or less as he was drawing it. Hess told what each bequest should be. Mrs. Dearborn said her father did not want Mary to have any more, because she would give it to her husband, Mr. Geeslin, and he would squander it. Searl further said: "She did not dictate the will to me. I drew it as he dictated it. He was decided. He did not want it changed from the way he had arranged it in his mind. Mrs. Dearborn said in the conversation that her sister Emma's conduct was such that she had no right to the property, and that Mr. Geeslin had made boasts that he would have a good time on Mr. Hess' money. The testator said but very little. He was generally quite a sociable man. He was competent and knew what he was about all the time. I did not believe the statements that Mrs. Dearborn made about her sister, and her brother's wife, and do not know whether the testator believed them or not."

Mrs. Searl and Mrs. Dearborn, the other persons present when the will was drawn, testified substantially to the same effect.

Mr. Hess died in December, 1889, and the will was presented in the probate court for Winona county, and admitted to probate on March 8, 1890. The contestants appealed to the district court, and a trial was had in September, 1890. The court submitted to the jury two questions, viz.:

First. Was the alleged will of Timothy Hess procured to be made by the undue influence of Ella Dearborn and James Hess, or either of them?

Second. Was the alleged will of Timothy Hess procured to be made by the fraud or deceit of Ella Dearborn and James Hess, or either of them?

Each of these questions was answered by the jury in the affirmative. The proponents moved the court to set this verdict aside and grant a new trial on the ground that it was not justified by the evidence and was contrary to law. The motion was denied, and they appealed.

Order reversed.

Lloyd Barber, for proponents.

There is no evidence in the case that reasonably tends to show that the will was procured by the undue influence or fraud of Ella Dearborn and James Hess, or either of them.

The testator had a right, in disposing of his property by will, to use his own judgment and consult his own preferences, without regard to how such disposition might be approved or disapproved by others. Storer's Will, 28 Minn. 9; Mitchell v. Mitchell, 43 Minn. 73.

To set this will aside, the contestants must show that in making it the testator acted against his will; that his free agency was destroyed at the time he made the will; that he was not left to act intelligently, understandingly, and voluntarily, but was controlled by the will or purpose of another. Nelson's Will, 39 Minn. 204; Mitchell v. Mitchell, 43 Minn. 73.

To avoid the will, the influence must overcome and control the mind of the testator, at the time the will is made, and there must be affirmative evidence of the facts from which such influence is to be inferred. Nelson's Will, 39 Minn. 204; Gardiner v. Gardiner, 34 N.Y. 155; Cudney v. Cudney, 68 N.Y. 148; Children's Aid Soc. of New York v. Loveridge, 70 N.Y. 387; Miller v. Miller, 3 Serg. & R. 267; Tawney v. Long, 76 Pa. 106, 115; Rabb v. Graham, 43 Ind. 12; Schouler, Wills, § 232.

And there can be no fatally undue influence without a person incapable of protecting himself, as well as a wrongdoer to be resisted. Latham v. Udell, 38 Mich. 238.

The declarations or statements of the testator, made more than eleven months after the execution of his will, were not admissible in evidence for any purpose, on any issue in the case. Storer's Will, 28 Minn. 9; Rusling v. Rusling, 36 N.J.Eq. 607; Boylan v. Meeker, 28 N. J. Law 282; Kitchell v. Beach, 35 N.J.Eq. 454; Cudney v. Cudney, 68 N.Y. 148; Horn v. Pullman, 72 N.Y. 277; Shailer v. Bumstead, 99 Mass. 112, 122; Bush v. Bush, 87 Mo. 486; Richardson v. Richardson, 35 Vt. 238; Harring v. Allen, 25 Mich. 505; Stevens v. Vancleve, 4 Wash. C. C. 265; Comstock v. Hadlyme Ecc. Soc., 8 Conn. 254; Runkle v. Gates, 11 Ind. 98; Herster v. Herster, 122 Pa. St. 239.

Keyes & Brown, for contestants.

The reasons why the order of the court below, denying a new trial of this action, should be affirmed, may be brought to the attention of the court by a hasty review of the evidence, and in particular the evidence of the witnesses Mr. and Mrs. Searl.

The disposition of the testator's property appears to have been agreed upon and arranged by him and Mrs. Dearborn before they came to the house of witness Searl to have the will drawn. Mrs. Dearborn was present, with the testator and two witnesses, and seemed to control it, and it seemed to be just as she said it was going to be. The testator appeared like a man that was hardly satisfied with what he was doing; it was not satisfactory to him, -- what he was doing. He appeared like a man that was doing something that he seemed to think necessary and that had got to be done, and did not seem to like to do it, -- something that he thought he was obliged to do. The testator appeared dissatisfied with what he was doing, and the way he was doing it. He was restless, and more than usually silent.

It was Mrs. Dearborn, not the testator, who made the slanderous statements regarding contestants, and gave reasons why the will should be drawn so and so, and caused her brother and sisters to be cut off with only enough so they could not break the will. The will seemed to be drawn just as previously arranged, and according to her will. These circumstances, coupled with the fact that more than half of the estate was willed to Mrs. Dearborn and her son, George Ford, and practically all or it to herself and James, can mean but one thing, and that is that this interest taken by Mrs. Dearborn was to see that her...