Auld v. Cathro
| Decision Date | 24 September 1910 |
| Court | North Dakota Supreme Court |
Rehearing denied December 14, 1910.
Appeal from District Court, Bottineau county; Honorable Chas. F Templeton, J.
Action by Robert Auld and Bertha Johanna McGaffney against F. W Cathro, Laura M. Dana, and Gertrude G. Dana. From an order denying a motion for a new trial, contestants appeal.
Affirmed.
Noble Blood, & Adamson, and Ball, Watson, Young, & Lawrence, of counsel, for appellants.
Undue influence is to be measured with regard to the mental and physical condition of the person influenced. Woerner, Am. Law of Administration, 48; Dunaway v. Smoot, 23 Ky. L. Rep. 2289, 67 S.W. 62; Juzan v. Toulmin, 9 Ala. 663, 44 Am. Dec. 448; Lingle v. Lingle, 121 Iowa 133, 96 N.W. 708; Woodbury v. Woodbury, 141 Mass. 329, 55 Am. Rep. 479, 5 N.E. 275; Meyer v. Fishburn, 65 Neb. 626, 91 N.W. 534; 29 Am. & Eng. Enc. Law, p. 111 and cases there cited.
Unjust and unnatural disposition of property may be considered. Meier v. Butcher, 197 Mo. 68, 6 L.R.A. (N.S.) 202, 94 S.W. 883, 7 A. & E. Ann. Cas. 887; Gay v. Gillilan, 92 Mo. 250, 1 Am. St. Rep. 712, 5 S.W. 7; Elliott v. Welby, 13 Mo.App. 19; Tyner v. Varian, 97 Minn. 181, 106 N.W. 898; Rivard v. Rivard, 109 Mich. 98, 63 Am. St. Rep. 566, 66 N.W. 681; England v. Fawbush, 204 Ill. 384, 68 N.E. 526; Livering v. Russell, 30 Ky. L. Rep. 1185, 100 S.W. 840; Hoffman v. Hoffman, 192 Mass. 416, 78 N.E. 492; Re Wiltsey, 135 Iowa 430, 109 N.W. 776; Fry v. Jones, 95 Ky. 148, 44 Am. St. Rep. 206, 24 S.W. 5; Farnsworth's Will, 62 Wis. 474, 22 N.W. 523; Trezevant v. Rains, 85 Tex. 329, 23 S.W. 890; Edgerly v. Edgerly, 73 N.H. 407, 62 A. 716.
If there is evidence for and against the validity of the will, case is for the jury. Re Arnold, 147 Cal. 583, 82 P. 252; Fry v. Jones, 95 Ky. 149, 44 Am. St. Rep. 206, 24 S.W. 6; Lischy v. Schrader, 104 Ky. 657, 47 S.W. 611; Disch v. Timm, 101 Wis. 179, 77 N.W. 196; Davis v. Dean, 66 Wis. 100, 26 N.W. 737; Cole v. Getzinger, 96 Wis. 559, 71 N.W. 75; Baker v. Baker, 102 Wis. 226, 78 N.W. 453; Re Derse, 103 Wis. 108, 79 N.W. 46; Re Wheeler, 5 Misc. 279, 25 N.Y.S. 314.
Privileged communication to a physician can be waived by the patient and those representing him. Olson v. Court of Honor, 100 Minn. 117, 8 L.R.A. (N.S.) 521, 117 Am. St. Rep. 676, 110 N.W. 374, 10 A. & E. Ann. Cas. 622; Winters v. Winters, 102 Iowa 53, 63 Am. St. Rep. 428, 71 N.W. 184; Blackburn v. Crawford, 3 Wall. 175, 18 L. ed. 186; Thompson v. Ish, 99 Mo. 160, 17 Am. St. Rep. 555, 12 S.W. 510; Fraser v. Jennison, 42 Mich. 209, 3 N.W. 882; Scripps v. Foster, 41 Mich. 742, 3 N.W. 216.
Weeks & Murphy and Geo. A. Bangs, for respondent.
Mere suspicion, conjecture, or possibility that undue influence induced a will, or power, motive, and opportunity to exercise it, are insufficient. Ginter v. Ginter, 79 Kan. 721, 22 L.R.A. (N.S.) 1024, 101 P. 634; Re Shell, 28 Colo. 167, 53 L.R.A. 387, 89 Am. St. Rep. 181, 63 P. 413; Winn v. Grier, 217 Mo. 420, 117 S.W. 48; Lamb v. Lippincott, 115 Mich. 611, 73 N.W. 887; Re Nelson, 132 Cal. 182, 64 P. 294; Sheehan v. Kearney, 82 Miss. 688, 35 L.R.A. 102, 21 So. 41.
Sufficiency of the evidence to show mental capacity is one for the court. 1 Wharton & S. Med. Jur. § 96; Kempsey v. McGinniss, 21 Mich. 123; Leffingwell v. Bettinghouse, 151 Mich. 513, 115 N.W. 731.
The undue influence must destroy free agency. Myers v. Hauger, 98 Mo. 433, 11 S.W. 974; Doherty v. Gilmore, 136 Mo. 414, 37 S.W. 1127.
A privileged communication is personal with the patient, applies to testamentary matters, and cannot be waived by the heirs and personal representatives. Grattan v. Metropolitan L. Ins. Co. 80 N.Y. 296, 36 Am. Rep. 617; Westover v. AEtna L. Ins. Co. 99 N.Y. 56, 52 Am. Rep. 1, 1 N.E. 104; Renihan v. Dennin, 103 N.Y. 573, 57 Am. Rep. 770, 9 N.E. 320; Loder v. Whelpley, 111 N.Y. 239, 18 N.E. 874; Re Myer, 184 N.Y. 54, 76 N.E. 920, 6 A. & E. Ann. Cas. 26; Re Coleman, 111 N.Y. 220, 19 N.E. 71; Re Flint, 100 Cal. 391, 34 P. 863; Harrison v. Sutter Street R. Co. 116 Cal. 156, 47 P. 1019; Re Redfield, 116 Cal. 637, 48 P. 794; Re Nelson, 132 Cal. 182, 64 P. 294.
Witness may testify to sanity of a person, from general observations, without testifying to facts. 2 Jones, Ev. § 366; Lamb v. Lippincott, 115 Mich. 611, 73 N.W. 887; Re Hull, 117 Iowa 738, 89 N.W. 979; Stutsman v. Sharpless, 125 Iowa 335, 101 N.W. 105; Lucas v. McDonald, 126 Iowa 678, 102 N.W. 532; State v. Hayden, 131 Iowa 1, 107 N.W. 929; Heaston v. Krieg, 167 Ind. 101, 119 Am. St. Rep. 475, 77 N.E. 805; Proctor v. Pointer, 127 Ga. 134, 56 S.E. 111; Glover v. State, 129 Ga. 717, 59 S.E. 816.
Accuracy of observation and weight of opinion is for the jury. Higgins v. Nethery, 30 Wash. 239, 70 P. 489; Howard v. Carter, 71 Kan. 85, 80 P. 61; Lassas v. McCarty, 47 Or. 474, 84 P. 76.
This litigation arose in the county court of Bottineau county, and involves the validity of the last will of one Mary Auld, deceased. Plaintiffs and appellants, Robert Auld and Bertha Johanna McGaffney, were respectively the husband and sister of said deceased. Defendant and respondent Cathro is the executor named in said last will. Defendants Laura M. and Gertrude G. Dana are two of the legatees named in said will. Respondent Cathro filed in such county court a petition praying for the probate of such will. Appellants filed written objections to admitting said will to probate, in which they allege, in substance, that the writing purporting to be the said will was pretended to be made and executed on the 18th day of March, 1905; that on the said 18th day of March, 1905, and long prior thereto, said Mary Auld, by reason of unsoundness of mind, insanity, mental weakness, and imbecility, has been wholly incapable of making and executing her last will and testament, or any codicil to any will or testament, or any writing in the nature of a last will and testament; that said paper or writing purporting to be the last will and testament of the said Mary Auld were obtained by fraud and undue influence exerted over and upon her, by said Cathro, H. C. Dana, and others, as follows: That said Cathro, Dana, and others, by reason of the unsoundness of mind, mental weakness, and imbecility of the said Mary Auld, exercised over and upon the said Mary Auld undue influence in varied and divers ways, and represented to the said Mary Auld that it would be necessary for her to place her property in the hands of a third person, or some person other than any of her relatives or heirs, to prevent the said Robert Auld from obtaining said property for himself, and the said writing is not the last will and testament of the said Mary Auld, deceased; that the said Robert Auld and the said Mary Auld were married in the county of Cavalier and state of North Dakota, in August, 1892, and the said Mary Auld, from the time of said marriage, always represented to Robert Auld, and he always supposed that they were lawfully married; that she was the wife of the said Robert Auld at the time of her death; that the said Mary Auld represented to him at the time of her marriage that her name was Mary Hitterdahl, but contestants now believe that her name was Mary Olson, and that at the time of her marriage with said Robert Auld she had a husband living, named N. K. Olson, from whom she was not at the time of said marriage divorced; and that all of the real property named by the said Mary Auld in said purported last will and testament is property given to her by Robert Auld in consideration of love and affection, and for the reason and under the belief that the said Mary Auld was his wife.
In addition to these objections, Robert Auld filed another objection as follows: "That the said purported last will and testament of the said Mary Auld, deceased, was not signed, sealed, and declared by her to be her last will and testament and witnessed; that it was not executed by the said Mary Auld, deceased, as provided by the statutes of North Dakota."
Respondents, replying to said written objections, deny each and every allegation contained therein, except as admitted or qualified.
Deny that said Mary Auld, on the 18th day of March or at any time, was unsound of mind, insane, mentally weak or an imbecile, and allege that at all times prior to her death she was of sound mind, and possessed of sufficient mental capacity to make and execute her last will and testament.
Deny that the will was obtained by fraud or undue influence, and allege that said will was duly and legally signed, executed, and witnessed.
Deny that any of the property named in said will was given to Mary Auld by said Robert Auld.
The county court made findings of fact and conclusions of law sustaining the contentions of appellants, and found that the said Mary Auld at the time of her death had a sister, Bertha Johnanna McGaffney, and a husband, Robert Auld, who are the plaintiffs in this action.
An appeal from the order and decree denying the petition of F. W. Cathro, asking for admission to probate of said instrument, was taken to the district court of Bottineau county, where the will was allowed by the jury. From an order denying their motion for a new trial, contestants appeal to this court.
In addition to the facts herein stated, the following are the facts necessary to a decision of this case: At the time of the marriage of testatrix with Robert Auld, she had a homestead of 160 acres of land in Rolette county, adjoining Bottineau county; also three horses, two cows, and a calf and household goods. She afterwards traded her farm for city property in Bottinea. She and her husband,...
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