Eggan's Estate, In re

• Decision Date: 01 November 1963
• Docket Number: No. 9195,9195
• Citation: 386 P.2d 563,86 Idaho 328
• Parties: In the Matter of the ESTATE of Carter P. EGGAN, Deceased. Signe V. SAWYER, Plaintiff, Contestant, Appellant, v. Martin V. HUFF, as executor of the Estate of Carter P. Eggan, Deceased, and the City of Moscow, Idaho, a Municipal Corporation, Defendants, Proponents, Respondents.
• Court: Idaho Supreme Court

Page 563

386 P.2d 563

86 Idaho 328

In the Matter of the ESTATE of Carter P. EGGAN, Deceased.

Signe V. SAWYER, Plaintiff, Contestant, Appellant, v. Martin V. HUFF, as executor of the Estate of Carter P. Eggan, Deceased, and the City of Moscow, Idaho, a Municipal Corporation, Defendants, Proponents, Respondents.

No. 9195.

Supreme Court of Idaho.

Nov. 1, 1963.

J. H. Felton, Lewiston, J. L. Eberle, Boise, for appellant.

Robert W. Peterson, John F. Brady, Moscow, for respondents.

McFADDEN, Justice.

Carter P. Eggan, a resident of Moscow, Idaho, died May 20, 1960 at the age of 65 years. His purported will dated September 5, 1958, was presented for probate. His sister, Signe V. Sawyer, the appellant, contested the admission to probate of this will. She alleged at the date of the execution of the will Mr. Eggan was not of sound and disposing mind, but was so addicted to the use of alcoholic beverages that he did not know what he was doing, and that he was acting under duress, menace, fraud and undue influence. She also alleged the will was not duly executed and attested by Mr. Eggan and the subscribing witnesses. She further alleged that the trust in the City of Moscow, attempted to be created by the fifth paragraph of the will is, not only so ambiguous, so indefinite and uncertain that it cannot be carried out, but is beyond the authority of the city council. The fifth paragraph of the instrument reads:

'I hereby give, devise and bequeath all the rest and residue of my estate to the City of Moscow, Idaho, my home, said devise and bequest by said city to be used only to build and/or furnish and/or equip a Youth Center Building situate within the corporate limits of Moscow, Latah County, Idaho, and said building to be used primarily for the recreation of the youth of this area. It is not the intention of testator that said Youth Center be situated in a separate building of its own, but that, should the city government deem it advisable this devise and bequest can be used for the construction of a Youth Center Building.'

The probate court heard the issues presented by the petition for probate of the will and for issuance of letters testamentary and appellant's contest. That court ruled against appellant, finding:

'* * * that said document is the Last Will and Testament of Carter P. Eggan, deceased, and that it was executed in all particulars as required by law, and that said testator, Carter P. Eggan, at the time of the execution of said will was of sound and disposing mind and memory and not acting under undue influence, menace, fraud or duress, nor under the influence of alcoholic liquors, * * *'

The will was admitted to probate and respondent Martin V. Huff, appointed the executor of the estate. The court did not construe the fifth paragraph of this will and made no ruling as to its validity.

Appellant thereafter appealed to the District Court from the Order Admitting Will to Probate, Certificate of Proof, and Order Appointing Executor on questions both of law and fact.

The District Court submitted special interrogatories to a jury touching upon the questions of execution of the will by the testator, his freedom from duress, menace, fraud, or undue influence, and his competency. The trial court reserved the question presented by appellant's initial pleading concerning the validity of the fifth paragraph of the will. The jury found in favor for respondents on the issues presented and the trial court, accepting the jury's findings as to the testator's competency, entered its judgment and decree that the will was properly executed by the testator, without duress, menace, fraud or undue influence, and also ruled that the fifth paragraph of the will was valid. The court thereafter denied an alternative motion for new trial or for judgment notwithstanding the verdict, or for summary judgment.

Appellant appeals from this judgment and decree and the order denying the motion for new trial, and judgment notwithstanding the verdict, or summary judgment. Appellant directs assignments of error to instructions given by the trial court; refusal to give certain requested instructions; refusal to hold the fifth paragraph of the will to be invalid; and to the Findings of Fact, Conclusions of Law and Decree; she contends the same are not supported by the evidence.

Appellant specifically assigns as error the giving of instructions Nos. 11, 12, 13, 14, 15, 16, 20, 21, 23 and 24. She contends that these instructions unduly assert the necessity of strong, direct proof of undue influence where only circumstantial evidence is presented on that issue.

The record indicates that Instruction No. 14 given by the court was from appellant's own requested instructions. Assignment of error cannot be predicated upon a requested instruction thus given. Neff v. Hysen, 72 Idaho 470, 224 P.2d 146.

Instructions Nos. 20 and 21 do not deal with undue influence, but are concerned with the burden of proof of fraud and a definition of fraud. Instruction No. 23 is concerned with duress and No. 24 with the law of menace; neither of them have to do with undue influence.

Instruction No. 15 in effect states that the mere existence of a confidential relationship does not in itself establish undue influence. Instruction No. 16 states that there is no presumption of undue influence merely because the attorney who prepared the will also was named as the executor of the will. Both are correct statements of the law and both were properly given. Swaringen v. Swantrom, 67 Idaho 245, 175 P.2d 692.

Instructions 11, 12 and 13 dealing with 'undue influence' read as follows:

'No. 11. The court instructs the jury that, in an action to set aside a will of a deceased person on the ground of undue influence, it is necessary to show that the influence was such as, in effect, to destroy the testator's free agency and substitute for his own another person's will. Mere general influence is, however strong and controlling, not to bear upon the testamentary act, is not enough; it must be influence used directly to procure the will and must amount to coercion destroying free agency on the part of the testator.

'No. 12. The court instructs the jury that undue influence has been, in effect, defined as domination by the guilty party over the testator to such an extent that his free agency is destroyed and the will of another person substituted for that of the testator.

'No. 13. You are instructed that 'undue influence' is any means employed upon and with the testator which, under the circumstances and conditions by which the testator was surrounded, he could not well resist, and which controlled his volition and induced him to do what otherwise would not have been done.'

These instructions also correctly state the law. In re Lunders' Estate, 74 Idaho 448, 263 P.2d 1002; In re Motz's Estate, 136 Cal. 558, 69 P. 294 (1902); In re Keegan's Estate, 139 Cal. 123, 72 P. 828 (1903). In In re Lunders' Estate, supra, this court cited In re Arnold's Estate, 16 Cal.2d 573, 107 P.2d 25 (1940), (which in turn relied upon In re Keegan's Estate, supra), from which was taken the language employed in Instruction No. 11. Instruction No. 12 comes from the language used by this court in the Lunders' estate case. Instruction No. 13, altho not necessary, was confined to the definition of the term 'undue influence'. No error appears in the giving of these instructions.

In Stoddart v. Idaho Concrete Products Co., 76 Idaho 417, 421, 283 P.2d 922, 924, is stated the rule:

"All instructions given in a case must be read and considered together, and where, taken as a whole, they correctly state the law and are not inconsistent, but may be reasonably and fairly harmonized, it will be assumed that the jury gave due consideration to the whole charge and was not misled by an isolated portion which considered alone, does not fully and clearly state the law applicable to the facts in the case."

Appellant assigns as error the refusal of the trial court to give three of appellant's instructions, one dealing with a definition of the terms 'youth', 'child' and 'center'. Another requested instruction read:

'You are instructed that in order for the Will of Carter P. Eggan, to be upheld he must have understood the nature and extent of the gift he was making to the City of Moscow in paragraph 5 of the will. If he did not understand that the gift to the City of Moscow, if received by the City, could be used for any City purpose, and was not limited to the aid or betterment of children or youth, the will is invalid.'

Another requested instruction read:

'You are instructed that as a matter of law, if the will of Carter P. Eggan is upheld, paragraph 5 of the will is an absolute gift of the majority of Carter P. Eggan's property, to the City of Moscow, and that the additional words in paragraph 5 of the will do not limit the use of the gift to any particular purpose.'

The last requested instruction was phrased in form of interrogatories to the jury, dealing with what decedent understood as to the nature and extent of the gift to the City of Moscow. Appellant contends that failure to give these instructions was error for they go to the validity of the will itself. The trial court instructed the jury that they were not to concern themselves with the interpretations of paragraph five of the will, as the interpretation and construction of such paragraph was a matter of law for the court. Appellant contends the district court by such actions precluded the jury from considering the circumstances surrounding the execution of the will.

The jury was properly instructed that they need not concern themselves with the meaning, interpretation or validity of the fifth paragraph of the will. These requested instructions pertained to a construction of the fifth paragraph, which involved legal questions only. The court explicitly instructed the jury that for the testator to make a valid will it was essential to find he had:...