Dilios' Will, In re

• Decision Date: 30 November 1960
• Citation: 167 A.2d 571,156 Me. 508
• Parties: In re DILIOS' WILL. Appeal of CASCO BANK & TRUST CO., from Decree of Judge of Probate in re: disapproval and disallowance of last will of Christos Dilios. Appeal of Bertha TOMUSCHAT, from Decree of Judge of Probate in re: disapproval and disallowance of last will of Christos Dilios.
• Court: Maine Supreme Court

Page 571

167 A.2d 571

156 Me. 508

In re DILIOS' WILL.

Appeal of CASCO BANK & TRUST CO., from Decree of Judge of

Probate in re: disapproval and disallowance of

last will of Christos Dilios.

Appeal of Bertha TOMUSCHAT, from Decree of Judge of Probate

in re: disapproval and disallowance of last will

of Christos Dilios.

Supreme Judicial Court of Maine.

Nov. 30, 1960.

Bernstein & Bernstein, Portland, for plaintiff.

Jacob Agger, Robert C. Robinson, Arthur A. Peabody, Portland, for defendant.

Before WILLIAMSON, C.J., and WEBBER, TAPLEY, SULLIVAN, DUBORD, and SIDDALL, JJ.

DUBORD, Justice.

These two cases which were tried together in the Probate Court within and for the County of Cumberland and before the Supreme Court of Probate, are before us to be heard together, upon exceptions filed by the Casco Bank & Trust Company and Bertha Tomuschat, to the findings of the Superior Court sitting as the Supreme Court of Probate for the County of Cumberland holding the will of Christos Dilios, late of Portland, Maine, as invalid because of undue influence and mistake.

Christos Dilios died on June 27, 1958. An instrument dated and executed by him on March 14, 1958 was presented in the Probate Court within and for the County of Cumberland as and for his last will and testament. In this purported will, he named the Casco Bank & Trust Company and Israel Bernstein, a Portland attorney, as joint executors.

By decree dated April 7, 1959, the will was disallowed by the Probate Court within and for the County of Cumberland. This order was entered without the filing of any opinion or expressing any legal reason for the action taken.

An appeal from this decree was filed by the Casco Bank & Trust Company to the Supreme Court of Probate. Bertha Tomuschat, a beneficiary named in the aforesaid purported will, filed a similar appeal.

Both appeals were heard together and on August 28, 1959 the sitting justice of the Superior Court, acting as the Supreme Court of Probate, filed decrees in both cases in which it was ruled that the testator, at the time of the execution of the purported will was in possession of mental capacity sufficient to execute a will, but the appeal was dismissed and the purported will held invalid, because of undue influence and mistake.

To these findings, the proponents filed their exceptions.

The issues for our determination are as follows:

(1) Was the instrument purporting to be the last will and testament of Christos Dilios procured by undue influence?

(2) Was this instrument executed by Christos Dilios under mistake and misunderstanding as to its composition?

The proponents maintain that the execution of the instrument in question was not the result of undue influence and that there was no mistake or misunderstanding on the part of the testator. These assertions are denied by the appellees and to the aforesaid issues, the appellees advance the additional argument that the findings of the Justice of the Supreme Court of Probate should not be disturbed, for the reason that such findings can be attacked only for errors of law or for abuse of judicial discretion, and that such findings are conclusive if there is any evidence to support them. Appellees contend that no such error or abuse is shown and that there was sufficient evidence to support the findings.

We start out with the premise, of course, that an instrument purporting to be a last will and testament obtained by undue influence is void; and likewise, that a mistake which defeats the intention of a testator is sufficient to invalidate a purported will.

We turn our attention, therefore, to what constitutes undue influence such as to invalidate a purported will and the burden of proof when an instrument purporting to be a last will and testament is contested on the grounds that it was obtained by undue influence.

That the burden of proof of undue influence rests upon the party asserting it has been frequently asserted by this court. Barnes v. Barnes, 66 Me. 286, Chandler Will Case, 102 Me. 72, 66 A. 215, Norton et al., Applts., 116 Me. 370, 102 A. 73, Hiltz, Applt., 130 Me. 243, 154 A. 645, Thibault, Applt., 152 Me. 59, 122 A.2d 545; Royal et al., Applts., 152 Me. 242, 127 A.2d 484.

Now, what of the nature of the influence which can be construed as undue and thus invalidate a purported will?

Undue influence such as will invalidate a will has been found not too easy to define with precision.

'As applied to a will contest, undue influence has reference to the means and methods resorted to and employed by a person for the purpose of affecting and overcoming, and which ultimately do affect and overcome, the free and unrestrained will of a testator. Concisely stated, undue influence invalidating a will is that which substitutes the wishes of another for those of the testator. Although it has often been stated that undue influence is an unlawful influence, it appears that no more is meant by the expression 'unlawful influence,' as used in this connection, than that it is the influence which deprives the testator of his free agency.' 57 Am. Jur., Wills, § 350.

'The different definitions which have been suggested for undue influence are substantially alike in the idea involved, and differ only because in part of difference in expressing the same idea, and in part because of a difference in the standpoint from which the idea of undue influence is viewed. In some cases the idea of coercion is emphasized. It is said to be influence which 'amounts to moral or physical coercion so that the testatrix was prevented from exercising her own judgment and free will and that her act became, in effect, that of another,' or 'imprisonment of mind or body.' The use of the term coercion is not meant to limit undue influence to physical force or threats of physical force. Any pressure upon testator's mind, which overpowers it, is coercion in this sense. The fact that it is not physical coercion is sometimes indicated by calling it moral coercion.

'Emphasis is also laid on the idea that in undue influence, testator's free agency is destroyed. It is influence 'such as in some measure destroys the free agency of testator and prevents the exercise of that discretion which the law requires that a party should possess.' His loss of free agency is such that he is compelled to make a will which he would not have made if he had been left to the free exercise of his own judgment and wishes.

'Undue influence exists only when the will power of the testator is destroyed, and his own will is borne down. His freedom of will must be so destroyed as to substitute the will of another for his own. Undue influence exists when 'testator's volition at the time of testamentary act was controlled by another and * * * the will was not the result of the free exercise of judgment and choice.' It consists of 'a pressure which overpowered the mind and bore down the volition of testator at the very time the will was made.' Undue influence is that ascendency which prevents testator from exercising his unbiased judgment. It is 'any improper or wrongful constraint, machination or urgency of persuasion whereby the will of a person is overpowered and he is induced to do or forbear an act which he would not have done or foreborn had he been left to act freely.' It deprives testator of his usual volition, so that his will is not free and unconstrained, and his act in executing the will is not voluntary.' Page on Wills, Vol. 1, § 183.

'Upon the other hand, whatever may be the nature and extent of the influence, if, because of the physical or mental weakness of the testator, and the nature and persistency of the influence exerted, it is such that the testator is unable to resist it, if it deprives him of his power to act as a free agent in the manner that he otherwise would, it is sufficient to avoid the will, because a will made under such circumstances is not the will, and does not carry out the wishes, of a capable testator, acting as a free agent. It follows that the true test is to be found, not so much in the nature and extent of the influence exercised, as in the effect that such influence has upon the person who is making his will.

'Whatever the nature and extent of the influence exercised, if in fact it is sufficient to overcome the volition and free agency of the testator, so that he does that which is not in accordance with the dictates of his own judgment and wish, and what he would not have done except for the influence exerted, it is undue influence.' O'Brien, Appellant, 100 Me. 156, 158, 60 A. 880, 881.

'By undue influence in this class of cases is meant influence in connection with the execution of the will and operating at the time the will is made, amounting to moral coercion, destroying free agency, or importunity which could not be resisted, so that the testator, unable to withstand the influence, or too weak to resist it, was constrained to do that which was not his actual will but against it.

'Undue influence often closely resembles and is near akin to actual fraud. But strictly speaking it is not synonymous with fraud. In the making of a will, undue influence is exerted where the mind of the nominal maker of the document, in yielding to the dominancy and supervision of another's designing mind, does what otherwise the ostensible actor would not have done. Undue and improper influence, to go a little further, presupposes testamentary capacity. Were there no capacity, there could be no will, and the question of whether or not there was influence would be an idle one. The strength of the person's will, in connection with other facts, may be material in relation to whether an exerted influence became operative, but total incapacity negatives the very suggestion of influence. The influence must arise either from proof or presumption of law. It is never inferred from mere opportunity or interest, though these facts if shown should weigh with other facts.' Rogers, Appellant, 123 Me....