Appeal of Dale

CourtSupreme Court of Connecticut
Citation57 Conn. 127,17 A. 757
PartiesAppeal of DALE.
Decision Date13 November 1888

Appeal from superior court, New Haven county; FENN, Judge.

Appeal by Frederick S. Dale from a probate decree approving and allowing the will of Mary Ann Monson, deceased. Verdict for appellees, and Dale appeals.

C. R. Ingersoll, S. E. Baldwin, and E. A. Smith, for appellant. H. Stoddard and J. W. Alling, for appellees.

PARDEE, J. Mary Ann Monson died on April 28, 1887, resident in the probate district of New Haven, leaving a will dated May 21, 1880. The executor asked the probate court to admit the will to probate upon proof of due execution. On July 8, 1887, the probate court, upon hearing, found that the instrument presented was duly executed by the testatrix as and for her last will and testament when she was of sound mind and memory, and approved and allowed the same, and ordered it to be recorded. On August G, 1887, Frederick S. Dale appealed from this order to the superior court. He contested the probate of the will for two reasons: (1) Because of the alleged want of testamentary capacity on the part of the testatrix, resulting from the asserted immoderate use of intoxicating liquors; (2) upon the alleged fact of undue influence exerted by her son Frank A. Monson.

The appellant requested the court to charge the jury as follows: "(1) The issue for you to decide is whether the paper offered in evidence as the last will of Mary Ann Monson was executed by her according to the formalities prescribed by law, and freely, and while she was of sound mind and sufficient capacity. If you find all these conditions to have been fulfilled, your verdict should be for the appellees; that is, in favor of the probate of the paper as a valid will. But, if you find any one of these conditions not to have been fulfilled, your verdict should be for the appellant; that is, against admitting the paper to probate. (2) The burden of proving each and all of these conditions to exist rests by law on the appellees. (3) Every fact which tends to show that this will is not a valid one, whether it relates to Mrs. Monson's age or capacity, or to fraud or undue influence exerted upon her by any person or persons to procure the making of this will, is material for you to consider in determining upon your verdict. (4) In order to support the will the appellees must satisfy you by a preponderance of evidence that Mrs. Monson was of sound and disposing mind and memory on May 21, 1880, and, in particular, that she then knew substantially what property she owned and meant to dispose of, and the manner in which, and persons to whom, she meant to distribute it; and you must be also satisfied that she was not induced to execute the will by the influence of any person unduly exerted upon her. (5) In ordinary cases, if the attesting witnesses to a will all agree in the opinion that the will was duly made and executed, it throws the burden of proving affirmatively the exercise of undue influence or want of testamentary capacity on the heirs who may contest the will. But this is not always so where a confidential relation is shown to exist between the testator and a legatee under the will. (6) In this case the appellant has shown, and the appellees admit, that for several years before the date of the alleged will Mrs. Monson had a large property in her own right, yielding an income of several thousand dollars, which was collected and mainly expended for her by her son Frank A. Monson, and that she seldom had more than a few dollars at a time in her own possession, all of which was given her by him. If you find that there was, as the appellant claims, a confidential business relation between her and Frank A. Monson, subsisting at the date of the alleged will, and for several years next previous, by which he was her general agent to manage her property, income, and expenditures, paying and regulating her ordinary household expenses, and paying, among other things, the lawyer who drew this alleged will, and that she herself knew little about the nature or condition of her property or the amount of her income except as she got it from him, and that he alone of all the heirs knew of the execution of the will at the time, and took her to the lawyer who drew it, then a legal inference arises, as matter of law, against the validity of the will, which is not overcome by the mere testimony of the subscribing witnesses, but throws on the appellees the burden of showing by a clear preponderance of evidence that everything connected with the making and execution of the alleged will was free from impropriety and unfairness, and requires you to make a careful examination of the conduct of Frank A. Monson, and makes it necessary that you should be satisfied that those relations existing between them, above referred to, had no undue or improper influence over Mrs. Monson's mind, and did not induce her to make a different disposition of her property, or any part of it, from what she would otherwise have done; and unless you are satisfied from the evidence that his conduct in this matter was unexceptionable and proper, and that he in fact exerted no improper influence over her mind, and that the disposition of her estate was not changed by his relations with or influence over her, your verdict should be for the appellant,—that is, against the alleged will. (7) Undue influence is not ordinarily susceptible of direct proof, and the jury, therefore, have a right to infer it from the nature of the transaction alone, the relations of the parties, the terms of the alleged will itself, and all the circumstances attending the making of it. (8) The exercise of undue influence does not necessarily mean coercion by force or threats or fear or apprehension; but such influence may include flattery, or promises of benefit, or any art employed for the purpose of accomplishing the improper object."

It was found that the facts referred to as admitted in the first paragraph of the sixth request were not in terms admitted by the appellees, and would not have been conceded as therein alleged, though it appeared in evidence and was not substantially contested that Mrs. Monson, for several years before the date of the will, had property in her own right, yielding an annual income of some thousands of dollars, which was mainly, but not entirely, collected by Frank A. Monson; that while she incurred such bills as she desired she seldom had much money by her, and kept no bank account, but called on him for such money as she wished, asking, generally, for small sums of a few dollars only, and that he gave her what she asked.

The court did not charge as above requested, except as hereinafter set forth, but charged the jury as follows: "Gentlemen of the Jury: The issue for you to decide is whether the paper offered in evidence as the last will of Mary Ann Monson is a legal and valid will. Upon the trial of this issue it is incumbent upon the party seeking to sustain the will, the appellees in this case, to show that it is so by a fair preponderance of evidence. The burden of proof is upon them in the first instance to prove the formal execution of the will, and also that the testatrix at the time of its execution possessed that degree of intellect which is denominated in law 'sound and disposing mind and memory,' or 'testamentary capacity.' Having introduced the subscribing witnesses to this point, by the practice in this state the appellees rest, the appellants go forward with their evidence, and the appellees then rebut. The formalities required in the making of a will, as provided by the statute in force at the time the paper in issue purports to have been made, in 1880, are that wills should be in writing, subscribed by the testator, and attested by three witnesses, all of them subscribing in his presence, and in the presence of each other. These formalities have been testified to and are not disputed. The contention on the part of the appellant relates to the mental capacity of the testatrix, and also is that the paper offered for probate was procured by the exercise of undue influence upon her. Although the evidence by which the want of capacity is sought to be shown, and with regard to undue influence, and the claims made, bear in some parts an intimate relation, and are interwoven, it is important for clearness to distinguish them and examine them separately, because they are in fact distinct issues, subordinate to the main issue of the validity of the will, and because, while the burden of proof in the first instance is upon those insisting upon the probate of the will to prove the capacity of the testatrix, the burden of proof on the other hand to show undue influence is ordinarily upon those who oppose the will. * * * What constitutes undue or improper influence which would defeat the probate of the will is again a question of law, and upon this point I instruct you that the degree of influence necessary to be exerted over the mind of the testatrix, to render it improper, must from some cause or by some means be such as to induce her to act contrary to her wishes,—to make a different will and disposition of her property from what she would have done if left entirely to her own discretion and judgment; that her free agency and independence must be overcome; and that she must, by some domination or control exercised over her mind, have been constrained to do what was against her will, and what she was unable to refuse, and too weak to resist. A moderate and reasonable solicitation, entreaty, and persuasion, though yielded to, if done intelligently, without constraint, and from a sense of duty, would not vitiate a will in other respects valid. If a paper is executed with the requisite formalities of a will, and the person signing it is shown to have sufficient capacity to make a will, the presumption is that it was executed fairly, and without fraud or mistake, until the contrary...

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