Boardman v. Lorentzen

• Decision Date: 03 February 1914
• Citation: 145 N.W. 750,155 Wis. 566
• Parties: BOARDMAN v. LORENTZEN.
• Court: Wisconsin Supreme Court

155 Wis. 566

145 N.W. 750

BOARDMAN

v.LORENTZEN.

Supreme Court of Wisconsin.

Feb. 3, 1914.

Syllabus by the Judge.

He who obtains property by will or otherwise, through undue influence or consciously takingadvantage of incompetency of the owner, commits a fraud of most serious character.

The common rule as to certainty of the existence of facts constituting fraud, applies, emphatically, in case of the wrong being that of obtaining property by undue influence or taking advantage of incompetency of the owner,--such facts are required to be established by clear and satisfactory evidence.

In a controversy as to whether property was obtained by undue influence there is an evidentiary presumption in favor of the person charged, the same as in all cases sounding in fraud, that he did not perpetrate the wrong.

The charge of obtaining property by undue influence may be circumstantially, prima facie, established; but that requires these essentials: Proof of a subject unquestionably susceptible to undue influence and clear and satisfactory evidence of opportunity to exercise such influence, a disposition to exercise such influence and indication that it was in fact exercised.

Upon a prima facie case of undue influence having been circumstantially or otherwise established, there is no shifting of the burden of proof upon the accused more than in any other case where plaintiff's evidence, unexplained or uncontradicted, would entitle him to judgment.

In case of a charge of obtaining property by undue influence, prima facie or otherwise established, the defendant must meet such prima facie case to such extent, at least, that there is no longer clear and satisfactory proof of the facts constituting the charge of fraud.

The common evidentiary presumption in favor of judicially found facts does not exist where such findings are the result of misconception of law.

A person, however old, so long as he retains appreciation of his possessions and relations to others, may dispose of his property in any lawful way he sees fit, and regardless of whether his children or any one else may be pleased therewith.

The heirs at law of a person have no right to his property, except subject to his pleasure,--he is not bound to consult them or be influenced by their wishes, nor have they any right in the matter except that he be left free to exercise his own will.

A person having acted in the exercise of his right to dispose of his property upon his own judgment, it is not within the judicial function to disturb such disposal or do otherwise with reference thereto than to conserve his intention.

If a person makes a disposition of his property in contemplation of death and survives for a considerable period thereafter in such mental condition as to appreciate what he has done, and gives no sign that such disposition was not his free intelligent act, such circumstances are strongly evidentiary of a disposition free from undue influence or incompetency.

A married woman, by direction of her husband, having written a letter to another, she is competent to prove the contents of such letter in case of that being material in a judicial investigation and satisfactorv excuse being given for not producing the writing.

Appeal from a judgment of the Circuit Court for St. Croix County; E. W. Helms, Circuit Judge. Reversed.

Action to set aside a conveyance of property on the ground of fraud. The issues tried are indicated by the following abridgment of the decision: December 26, 1907, Jacob Svenson, deceased, a man about 78 years of age and possessed of $3,125.00, in personal property, for a promise on the part of defendant and his wife to care for him during the rest of his life, transferred the same to him. Mr. Svenson was incompetent to make such a contract. He was induced to make it by undue influence on the part of defendant and his wife. They performed services on the faith of such contract of the reasonable value of $500.00. Plaintiff, as personal representative of deceased, is entitled to judgment declaring said transfer void and that he recover the value of the property involved, less the value of the services actually rendered therefor, with costs. Judgment was so entered.

The findings were based on evidence more or less conflicting, supposed to indicate these circumstances: Mr. Svenson was somewhat feeble around about the time of the transaction in question and somewhat childish, impaired in memory and much reserved in manner as compared to his habits prior thereto, particularly up to the time of the death of his wife in 1903. He had several children and, prior to the transfer, expressed an intention to treat them equally in disposing of his property. He gave all to defendant and his wife, placing the title in defendant's name. Two persons outside of the latter's family were procured to be present at the time of the transfer. One of such persons was a Mr. Anderson,--cashier of a bank in a near-by village who acted as legal adviser--and the other was a neighbor who was asked to be present as a witness. The presence of these two persons was directly procured by the defendant. None of Mr. Svenson's children, except defendant's wife was present during the transfer. Mr. Svenson had four children,--Sievert who resided some few miles distant from defendant's home and had not lived with his father since he was thirteen years of age, absence from the paternal home being more than twenty-five years,--another son who resided in a distant place and had been away from his boyhood home over twenty-four years, a daughter who also resided in a distant place, and the defendant's wife. The latter was the youngest child. She lived with her father until after she was married and her mother died and perhaps a short period thereafter. Before the death of Mrs. Svenson she and her husband, or the latter, had some thought of the family property being conveyed to their youngest daughter, or to her husband, or both of them in consideration of an agreement for permanent support. None of the children, except defendant's wife, had paid any particular attention to the father for years before the particular transaction, and none of them were so circumstanced as to need any assistance from him. There were these undisputed facts: Mr. Svenson owned a small farm and transacted his own business and possessed and cared for his own property up to the time of the transfer to defendant. He had lived with the latter and his wife some little time before such transfer. He lived with them, contentedly, and was cared for by them, properly, and without any attention being paid to him by any of his other children, except Sievert, and no attention by him in particular, for considerably over a year. All of the time, except the latter part thereof, he remained in about the same mental condition as at the time of the transfer. At such time the business was done deliberately, some two hours being occupied in the transaction. Mr. Svenson gave all directions as to what should be done and was very emphatic about the matter. Neither defendant nor his wife made any suggestion favorable to themselves. Both advised the old gentleman to give part of his property to his absent children. He knew all about his property,--appreciated what it consisted of and the amount of it. Nothing was said or done in the year after the transaction, during all of which time his mental condition did not greatly change, showing dissatisfaction with what he had done. In addition to the undisputed evidence that Mr. Svenson thought of turning his property over, as stated, before his wife died to secure future support, there was evidence strongly tending to show that he thought of doing so shortly before and shortly after he went to live with defendant and his wife, or to transfer the property to some institution for the care of the aged to secure permanent support and care, and that Sievert was informed of that fact for the purpose of having him express his opinion in respect thereto, and that after the transfer Sievert was informed thereof and made no objection thereto. The old gentleman did his own business and kept it entirely within himself up to the time of the transfer. He lived on his farm for some four years after his wife died. For a short time a sister resided with him. Much of the time he resided alone. When he tired of that he endeavored to arrange with a neighbor to whom he was accustomed to let his farm, to afford him a home; but upon the neighbor declining to name what he would charge for the service he turned to defendant and his wife. He made a pretty shrewd arrangement with them for his board and adhered to it until it was suggested to him by Sievert that he should pay a little more. He paid for his board, so far as appears, in a business way up to the time of the transfer and manifested a desire to pay for any service rendered, or which might be rendered him.Spencer Haven, of Hudson, for appellant.

W. F. McNally and W. T. Doar, both of New Richmond, for respondent.

MARSHALL, J.

Were the conclusions of fact reached by application to the case of correct legal principles? Upon surveying the evidence in connection with the treatment of it in the opinion, filed by the learned judge before whom the case was tried, we are strongly impressed with the idea that he was efficiently influenced by a wrong notion of the law.

[1][2][3][4][5][6][7] There is an absolute absence of any direct evidence that appellant or his wife, by act or word, ever suggested to Mr. Svenson the idea of his conveying his property to them or either of them or that they influenced him to reside with them, or that they ever interfered with his property or business affairs in any way whatever. On the contrary, as indicated in the statement, the direct evidence, and circumstantial as well, is to the effect that Mr. Svenson had his own way with his property up to the time of the transfer, did his own business, without soliciting or...