Anthony's Estate, In re

• Decision Date: 17 May 1963
• Docket Number: No. 38577,38577
• Citation: 121 N.W.2d 772,265 Minn. 382
• Parties: In re ESTATE of Alfred ANTHONY, decedent. Joseph ANTHONY and Joseph Anthony, as Spec. Adm'r of Estate of Melvin Anthony, deceased, substituted as appellant, Appellants, v. EVANGELICAL LUTHERAN CHURCH, Respondent.
• Court: Minnesota Supreme Court

Page 772

121 N.W.2d 772

265 Minn. 382

In re ESTATE of Alfred ANTHONY, decedent.

Joseph ANTHONY and Joseph Anthony, as Spec. Adm'r of Estate

of Melvin Anthony, deceased, substituted as appellant, Appellants, v. EVANGELICAL LUTHERAN CHURCH, Respondent.

No. 38577.

Supreme Court of Minnesota.

May 17, 1963.

Syllabus by the Court

1. Evidence in a will contest Held to support a finding that the instrument offered by appellants was the product of undue influence exerted on testator by one of the beneficiaries and was therefore not entitled to probate.

2. Under Minn.St. 525.19 an instrument which can no longer operate as a testamentary disposition because the time to appeal from its disallowance by the probate court has expired may nevertheless constitute 'some other writing' of the testator effective to revoke prior wills, if otherwise valid and executed with requisite formality.

3. Under the doctrine of 'dependent relative revocation' the trial court must determine whether the testator intended revocatory provisions to be conditioned on the court's giving testamentary effect to the remainder of his will.

R. G. Johnson, Willmar, Rosenbloom & Rosenbloom, Redwood Falls, for appellant.

R. M. Saltness, Dawson, Swenson & Nelson, Madison, for respondent.

OTIS, Justice.

The proceedings here for review require a determination of the validity of four instruments executed by decedent, Alfred Anthony, each purporting to be his last will and testament. Will No. 1 was executed on July 7, 1950, and bequeathed all of decedent's property to his sister, Ida M. Anthony, for life, vesting the remainder in the respondent, Evangelical Lutheran Church. Will No. 2, dated April 21, 1958, purported to revoke all previous wills, and bequeathed testator's entire estate to his three nephews, Carter Anthony, Martin Anthony, and verle Anthony. Will No. 3, dated March 27, 1959, purported to revoke prior wills and made specific bequests of $100 each to a cousin, a nephew, a niece, and a brother, the residue going to Lutheran Bible Institute. Will No. 4, dated April 8, 1959, purported to revoke prior wills and bequeathed all of testator's estate in equal shares to his brothers, Joseph and Melvin, who are the appellants herein.

Each of the four wills was offered for probate by the interested beneficiaries or representative, and written objection to the allowance of each was in turn filed with the court.

The probate court held that on July 7, 1950, decedent and his sister Ida executed mutual wills making reciprocal provisions for one another pursuant to a binding agreement between them. The court found that respondent church was entitled to specific performance of the contract created by the mutual wills, and held that in so far as the later wills attempted to revoke Alfred's will of July 7, 1950, they were ineffectual. That will was thereupon admitted to probate.

The beneficiaries of will No. 4, Joseph and Melvin Anthony, appealed to the district court. No appeals by the proponents of wills Nos. 2 and 3 were perfected.

By pretrial order, the issues to be determined in the district court were expanded to include, among other things, the question of undue influence with respect to the execution of the will of April 8, 1959. The court, trying the case without a jury, found that there was no agreement between Ida and Alfred not to revoke their mutual wills of July 7, 1950; ¹ that Ida died on April 15, 1958, and her will was admitted to probate; that Alfred died on April 15, 1959, at the age of 80; and that the will of April 8, 1959, was induced by undue influence exercised on Alfred by his brother Joseph and his nephew, Carter Anthony. Accordingly, the court admitted to probate the will of July 7, 1950, and disallowed the three subsequent wills.

In their motion for amended findings or a new trial, appellants expressly raised the question of whether the last three wills revoked the first so as to cause an intestacy. This appeal is from an order denying that motion. There are only two issues for determination: (1) Whether the evidence sustains a finding of undue influence with respect to will No. 4; and, if so, (2) whether the record permits an adjudication that will No. 2 or No. 3 was effective to revoke the will of July 7, 1950.

1. The evidence discloses that Ida and Alfred Anthony were brother and sister, both unmarried, and lived together on the family farm up to the time of Ida's death. Thereafter, Alfred remained on the farm alone, and from time to time, Mona, the wife of his nephew, Carter, took care of his housekeeping needs. The record indicates that Alfred was greatly disturbed by the discovery that his interest in Ida's will was limited and his control of her estate circumscribed. Wills Nos. 2 and 3 were to some extent the product of his displeasure over Ida's testamentary disposition.

At the time of the execution of will No. 4, Alfred was seriously ill in the hospital. His relatives closest in degree were his brothers, Joseph and Melvin, and a sister, Lydia Hanson. Although he had been somewhat estranged from Joseph, there is evidence that during his confinement he was frequently visited by him and by Joseph's son, Carter, and daughter-in-law, Mona. While Alfred was in the hospital immediately prior to his death, according to the testimony of Carter, Alfred requested an interview with an attorney, expressing unequivocally an intention not to leave any of his property to the church. On Saturday, April 4, 1959, Carter and his father, Joseph, consulted Robert Cudd, an attorney practicing in Clara City. Their inquiries were directed in general terms to the probable disposition of Alfred's estate. On the following Monday, Joseph and Carter advised Cudd that Alfred wished to confer with him, and on the same day an interview between them took place at the hospital. Cudd testified that Alfred was emphatic in expressing his intent not to bequeath his property to the church, but at the same time he was undecided as to what disposition should be made of his estate. In leaving, the attorney stated to Alfred, 'Well, you think about it and make a decision on what you want to do.' In the course of their conversation Alfred had indicated to Cudd a leaning toward appellants, but discussed other relatives as well. Cudd thereupon advised Joseph and Carter that Alfred had not definitely made up his mind, said he would prepare a will, but added that 'it's going to have to be his will and it will have to be taken care of and as required by law.' At the suggestion of Joseph and Carter, Cudd then prepared the will of April 8, 1959, and a codicil expressly revoking all bequests to the Lutheran Bible Institute and the Evangelical Lutheran Church. These instruments were delivered to Carter Anthony at the hospital. After their initial discussion Cudd neither saw nor interviewed Alfred Anthony again, nor did he in any manner explain the terms of the will. The witnesses to the actual execution of the will were furnished by Carter and his wife, who drove them to the hospital. No discussion of the contents of the will was had in the presence of the witnesses, although they testified that Alfred expressed his satisfaction with its provisions. He did, however, refuse to sign the codicil which would have expressly revoked previous bequests to the Lutheran Bible Institute and Evangelical Lutheran Church. The will was retained by Carter after its execution and delivered by him to his father's attorney.

In his memorandum the trial court noted that there was no evidence to suggest that the first interview between Carter, Joseph, and Robert Cudd was prompted by Alfred. The court further pointed out that Alfred didn't actually request Cudd to prepare a will and that the will was witnessed by friends of Carter, whose testimony and that of Carter and his wife relating to its execution did not favorably impress him. In addition, it appeared significant to the trial court that Alfred had no opportunity to talk to Cudd about the will after it was drafted for execution, and that Carter submitted it to his father's attorney after it was signed. Further weight was given to the fact the will in question was executed only 12 days after will No. 3, which had provided for bequests wholly at variance with those directed in the later will. Under these circumstances the court concluded that the will was the product of undue influence exercised by Carter Anthony and his father, Joseph. We concur in this decision.

In support of their contention that the court's findings are not sustained by the evidence, appellants call attention to the testimony that Alfred was strong-willed and mentally sound at the time he signed the will; that he emphatically expressed an intent to revoke his gifts to the church, and stated his approval of the terms of the will; and that the provisions substantially conformed to the disposition which would be required under the intestacy laws.

The law governing undue influence is so well settled that we need only cite a few cases. Significantly, in recent years we have sustained the trial court's findings in all but two appeals. ² The decisions are nearly evenly divided between those which found undue influence to exist ³ and those which did not. ⁴

Essentially our function is limited to determining whether or not the trial court's conclusions are manifestly and palpably contrary to the evidence, viewed in the light most favorable to respondent. The contestant has the burden of proving by clear and convincing evidence not only that influence was in fact exerted, but improperly so, and that it resulted in expressing the will and intent of someone other than the testator. The influence must be of a degree which, by moral coercion or constraint, overpowers the testator's free agency and substitutes the will of the person exercising it.

Contestant must prove that the improper influence operated at the very time the will was signed and dominated and...