Anderson v. Davis

• Decision Date: 29 April 1952
• Docket Number: No. 34063,34063
• Citation: 208 Okla. 477,256 P.2d 1099
• Parties: ANDERSON et al. v. DAVIS.
• Court: Oklahoma Supreme Court

Page 1099

256 P.2d 1099

208 Okla. 477

ANDERSON et al. v. DAVIS.

No. 34063.

Supreme Court of Oklahoma.

April 29, 1952.

Rehearing Denied Jan. 10, 1953.

Application for Leave to File Second Petition for Rehearing

Denied May 19, 1953.

Syllabus by the Court.

1. Slight evidence is sufficient to set aside a will on the ground of undue influence when a confidential relationship exists between testator and the beneficiary.

In re Brown's Estate (Weeks v. O'Neill), 165 Or. 575, 108 P.2d 775.

2. What degree of influence will vitiate a will depends much upon the bodily and mental vigor of the testator. In re Brown's Estate (Weeks v. O'Neill), 165 Or. 575, 108 P.2d 775.

3. That confidential relationship existed between testator and beneficiary is not in itself sufficient to vitiate a will, in absence of evidence indicating that beneficiary exercised undue influence, but where confidential relationship is shown to have existed, and will is consistent with claims of duty and affection, slight evidence that beneficiary abused testator's confidence is sufficient to invalidate the will. In re Lobb's Will, 177 Or. 162, 160 P.2d 295.

4. When will is drawn by beneficiary who is in confidential relation with testator, a presumption of undue influence arises. In re Lobb's Will, 177 Or. 162, 160 P.2d 295.

5. A principal beneficiary under will who sustains confidential or fiduciary relationship towards testator, and actively participates in preparation of will, must assume, when will is attacked upon ground of undue influence, the burden of proving that he did not exert such influence, especially where beneficiary is testator's attorney. In re Lobb's Will, 177 Or. 162, 160 P.2d 295.

6. 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 re Kuhn's Will, 120 Kan. 13, 241 P. 1087.

7. The term 'independent advice,' means that the testator had the preliminary benefit of conferring fully and privately upon the subject of his intended will with a person who was not only competent to inform him correctly as to its effect, but who was so disassociated from the interest of the beneficiary named therein as to be in a position to advise with the testator impartially and confidentially as to the consequences to those naturally entitled to the testator's bounty. In re Kuhn's Will, 120 Kan. 13, 241 P. 1087.

8. 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. In re Chubbee's Will, 133 Okl. 156, 271 P. 681.

9. Record examined, and held, that the judgment of the trial court admitting will to probate is clearly against the weight of the evidence, and held further it is the duty of this court to reverse the judgment and remand the cause with directions to render judgment sustaining the contest and denying probate of the proposed will.

Wayne W. Bayless, Oklahoma City, G. C. Spillers, G. C. Spillers, Jr., Tulsa, for plaintiffs in error.

Tom L. Irby, C. L. Armstrong and Felix Duvall, all of Ponca City, for defendant in error.

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 Okl. 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 $2500 each to fives 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 1st, 1947. While Mr. Anderson was in the hospital on September 3rd, 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 22nd, 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 Oct. 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 checks 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...