Buck v. Buck
| Decision Date | 18 July 1913 |
| Docket Number | 18,134 - (222) |
| Citation | 142 N.W. 729,122 Minn. 463 |
| Parties | DENNIS BUCK v. MARY WHIPPLE BUCK and Others |
| Court | Minnesota Supreme Court |
Mary Whipple Buck petitioned the probate court for Dodge county to allow and admit to probate the last will and testament of Lewis Buck, her husband, and to be appointed executrix thereof. Dennis Buck filed objections to the allowance of the will. From the order of the probate court admitting the will to probate, the contestant appealed to the district court for Dodge county where the appeal was heard before Childress, J and a jury which returned a verdict that the testator was of sufficient mental capacity to make a will on the day of its execution, and that the will was procured by the undue influence exerted upon him by the societies to which he made bequests. From the order granting a new trial on the single issue of undue influence, Dennis Buck appealed. Affirmed.
Granting new trial -- discretion of trial court -- presumption.
1. Where a trial court grants a new trial, it is not presumed on appeal that the order was made on the discretionary ground that the verdict was not justified by the evidence unless it is expressly so stated in the order. On the other hand, the court on appeal must presume, in the absence of such statement, that the order was not made upon this ground, and this ground of motion cannot be considered.
Motion for new trial -- verdict contrary to law.
2. Where a motion for a new trial is made on the ground that the verdict is contrary to law, the motion should be granted if as a matter of law, there is no sufficient evidence to support it; that is, when the evidence is such that, conceding all that it tends to prove, it will not justify a verdict as a matter of law.
Discretion of trial court.
3. The function of the trial court in determining whether a verdict is not justified by the evidence differs from its function in determining whether it is contrary to law, in that, in the former case, there is the element of discretion, while in the latter case there is not.
Will -- undue influence.
4. In a will contest the burden of proof rests upon the contestant to establish the existence of undue influence. There must be proof of influence which in effect substitutes the will of another for that of the testator. Undue influence is the exercise of constraint, and is a species of coercion. It must, in order to avoid a will, destroy the free agency of the testator at the time it was made, so that the instrument in fact expresses the mind and intent of some one else and not his own.
Will -- burden of proof.
5. This rule as to the burden of proof is subject to the modification that, when the contestant has made out a prima facie case by the production of evidence from which the presumption of undue influence arises, the burden is then upon the proponent to show that the instrument is the will of the testator. There is no definite rule as to what sort of a showing is required to create this presumption. Inequality in the will, and motive and opportunity, on the part of a person preferred, to exert such influence are not sufficient. There must be some evidence that he did exert it.
Evidence of undue influence.
6. Deceased left no natural children. He left an adopted son who had been married many years. By his will he gave his widow one-third. He gave the adopted son $500, and the residue, amounting to several thousand dollars, he gave to various Baptist church societies. Deceased was a devoted churchman and in his lifetime contributed liberally to the support of these organizations. Their minister and representatives at times called on him socially and also solicited contributions from him. Their relations towards him, so far as appears, were much the same as toward other members and contributors. Some differences had existed between deceased and the adopted son. The will was made nearly 5 1/2 years before his death. He went alone to his attorney to have it prepared, and he alone dictated its terms. There is no evidence that any one representing any of the beneficiaries ever talked to him on the subject before the will was executed. The evidence is insufficient to sustain a verdict of undue influence or to raise any presumption thereof.
New trial upon one issue.
7. At the instance of appellant the court submitted to the jury two issues, one the issue of mental capacity of the testator, the other the issue of undue influence. The former the jury decided in favor of the proponent, the latter in favor of the contestant. Proponent moved for a new trial upon the issue of undue influence, and the court granted the motion. No other motion was made. Held, the court properly granted a new trial of this one issue.
M. H. Boutelle, R. T. Boardman and S. L. Pierce, for appellant.
J. J. Truax and Lord & Ronken, for respondents.
Lewis Buck died January 25, 1912, at the age of 79. He left surviving a widow by a second marriage and the appellant Dennis Buck, an adopted son. He left an estate valued at about $25,000. He left a will, dated August 21, 1906, by the terms of which he gave to his widow one-third of his estate, to appellant $500, the balance in equal shares to the Baptist Missionary Union, Baptist Home Missionary Society, Baptist Minnesota State Convention, Baptist Publication Society, and Pillsbury Academy at Owatonna, Minnesota. Appellant contested the will on the ground that the deceased was not possessed of testamentary capacity to make a will, and that the execution of the will was procured through undue influence. The probate court found against contestant and admitted the will to probate. Contestant appealed to the district court. He moved there for an order settling the issues of fact to be tried and directing a trial of the same by a jury, and proposed the following questions to be submitted:
The court ordered these two questions submitted to the jury. The jury answered "yes" to both questions. The answer to the first question was in favor of the proponent of the will, and the answer of the second was in favor of the contestant. Proponent moved for a new trial upon the second issue on the ground "that the verdict of the jury upon said issue is not justified by the evidence and is contrary to law." The trial court granted the motion without stating in the order the ground upon which he did so. No other motion was made. Contestant appeals.
1. The labors of counsel and of this court would have been much simplified had the trial court made clear the ground on which the motion for a new trial was granted. The statutes of the state provide in terms too plain to be misunderstood that, unless it be so expressly stated in the order granting a new trial, it shall not be presumed on appeal that such order was made on the discretionary ground that the verdict was not justified by the evidence. R.L. 1905, § 4198, subd. 7. This court has heretofore held that, in such a case, resort may be had to the memorandum, if one is filed, for the purpose of elucidating the order. Gay v. Kelley, 109 Minn. 101, 123 N.W. 295, 26 L.R.A. (N.S.) 742. A memorandum was attached to this order, but it does not make clear that the motion was granted on the ground that the verdict is not justified by the evidence. We are accordingly obliged, by positive mandate of the statute, to presume that this order was not made upon this ground. Hillestad v. Lee, 91 Minn. 335, 337, 97 N.W. 1055; Independent Brewing Assn. v. Burt, 109 Minn. 323, 123 N.W. 932. And this ground of motion cannot be considered. Halversen v. Moon & Kerr Lumber Co. 87 Minn. 18, 91 N.W. 28; Sather v. Sexton, 101 Minn. 544, 112 N.W. 1142.
2. We must accordingly determine whether the order for a new trial was properly granted on other grounds. No specific errors of law were assigned as ground for the motion. Proponent assigned the general ground that the verdict "is contrary to law." This is one of the statutory grounds for a new trial. R.L. 1905, § 4198, subd. 7. There has been some confusion in decisions and in text books as to the meaning of this term. In Valerius v. Richard, 57 Minn. 443, 59 N.W. 534, it was said the term means "contrary to the instructions" and that it is not enough that a principle of law not embodied in an instruction was disregarded by the jury. This is the view adopted in Hayne on New Trials, § 99, and in some of the California cases which are cited by the author.
It is no doubt true that a verdict contrary to the instructions of the court is "contrary to law," but it may be contrary to law for other reasons as well. In First Nat Bank of Shakopee v. Strait, 71 Minn. 69, 73 N.W. 645, the court through Mitchell, J. said: "A motion for a new trial on the ground that the verdict is contrary to law is somewhat in the nature of a demurrer to the evidence; that is, conceding all that the evidence tends to prove, the verdict is not supported by the principles of law applicable to the facts." This is in harmony with the language of the court in the early case of Alden v. City of Minneapolis, 24 Minn. 254, where it is said, "in considering the question whether it is contrary to law we must assume that state of facts most favorable to the...
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