Elmer's Estate, In re

• Decision Date: 17 August 1973
• Docket Number: No. 8873,8873
• Citation: 210 N.W.2d 815
• Parties: In the Matter of the ESTATE of D. W. ELMER, Deceased. Lena ELMER et al., Contestants and Respondents, v. Jake N. ELMER, Proponent and Appellant, v. Lawrence ELMER, Henry Elmer, and Interested Parties, Respondents. Civ.
• Court: North Dakota Supreme Court

Page 815

210 N.W.2d 815

In the Matter of the ESTATE of D. W. ELMER, Deceased.

Lena ELMER et al., Contestants and Respondents, v. Jake N. ELMER, Proponent and Appellant, v. Lawrence ELMER, Henry Elmer, and Interested Parties, Respondents.

Civ. No. 8873.

Supreme Court of North Dakota.

Aug. 17, 1973.

As Amended on Denial of Rehearing Oct. 8, 1973.

Syllabus by the Court

1. Whether undue influence existed at the time of the making of a will, and whether a testator was competent, are questions of fact.

2. In deciding whether findings of fact by a lower court are 'clearly erroneous,' the fact that two lower courts disagreed on the result may be considered, but the function of the ultimate appellate court is to decide whether the findings of the court appealed from are 'clearly erroneous.'

3. Interpretations by Federal courts of Federal Rules of Civil Procedure, which were copied or adapted as State rules of

2. In deciding whether findings of binding upon a State appellate court.

4. Where a testator is subject to the influence of drugs at the time of execution of a will is a question of fact.

5. Where a trial judge has determined that the testimony of a witness, whose testimony is of crucial importance, is not to be given full credit, that determination is entitled to great weight.

6. The choice of a trial judge between two permissible views of the weight of the evidence is not clearly erroneous.

7. Where the trial court made exhaustive findings of fact, supported by the record, and the conclusions of law and ultimate decision follow from such findings, the ultimate decision is entitled to be affirmed even though the facts might have supported different findings and a different result.

8. Where findings made include all the requirements for a conclusion of undue influence: the opportunity to exercise undue influence, the disposition to exercise it, the susceptibility of the decedent to the exercise of undue influence, and that the result appears to be the effect of undue influence, the trial court's determination is affirmed.

Orville A. Schulz, New Salem, and Thompson, Lundberg & Nodland, Bismarck, for contestants and respondents.

C. J. Schauss, Mandan, and Kurt H. Krauth, Hebron, for proponent and appellant.

VOGEL, Judge.

This is an appeal from a judgment of the district court of Morton County, setting aside a decree of the county court of Morton County which admitted to probate the will of D. W. Elmer, deceased. The judgment of the district court directs that the estate of Elmer be administered under the laws of intestate succession of the State of North Dakota.

The will in question was executed by the deceased on the evening of January 12, 1972. The testator had been brought to the hospital by his brother, Jake Elmer, the appellant, on the previous day, at the request of the testator. It is evident from the record that the testator was a critically ill person when admitted to the hospital. He was suffering from congestive heart failure and from shortness of breath, and was very apprehensive. A dose of seventy-five milligrams of Demerol was administered to him at about 2:50 p.m. on January 12. Demerol is a drug which affects the brain processes, and was prescribed to reduce the apprehension. About 4:30 p.m. of that day, less than two hours after the drug had been administered, and during the period of its greatest effect, the appellant, Jake, whose son was bequeathed the entire estate under the provisions of the will, spoke to the testator alone for about half an hour. Then the appellant left to obtain an attorney to have the will prepared.

Medical testimony discloses that at 4:30 p.m., the drug which had been administered would have been at its maximum in effectiveness, but that in the ordinary person those effects would have worn off to a large extent by the time of the execution of the will that evening, and that the drug would have a more lasting effect on a person in poor physical condition.

The testator had been placed in an oxygen tent at about noon on the 12th of January and the oxygen tent had been removed at some time prior to the execution of the will. Although the testator signed his name in a very legible hand on his admission to the hospital on January 11, he was wholly unable to sign his name to the will at the time of its execution, and executed it merely by making a belabored 'X.' There also is testimony by the proponents of the will that it had been drawn by the attorney who was called by the appellant, and the attorney was given information as to the provisions to be put into the will by the testator himself. After the execution of the will, the attorney kept the instrument until after the death of Elmer one week later. It was not seen again by the testator after its execution.

About six days prior to the testator's entry into the hospital, he called on his attorney on another matter, but talked about selling the farm or renting it. At that time, he made no mention of drawing a will in favor of his nephew, the son of the appellant. The appellant testified that when he first talked to the decedent on January 12, just prior to the drafting of the will, the decedent had said, 'I don't know what to do. What shall I do?' At the time of this conversation, he was under the effects of medication and the appellant was alone with him.

One paragraph of the will provides:

'THIRD: I make no provision for my brothers, Jake N. Elmer, Henry Elmer, nor for my sisters, Lena Elmer, Rachel Martell and Marie Brown, all of whom are financially so fixed that they can well live without any benefits from my estate. . . .'

The record discloses that the brother Henry was eighty-two years of age at that time and was a retired fruit picker living in a retirement home. One of the sisters, Rachel Martel, was a widow seventy-seven years of age, in the process of purchasing a trailer home by installments. Another sister, Marie Brown, was sixty-seven years of age and making her living scrubbing and cleaning buses for a transcontinental bus company. Each had a small amount of savings, insufficient for support for any prolonged period of time.

There are two main issues to be determined on this appeal, and they are so closely related that they can be considered together: (1) Was D. W. Elmer legally competent to execute a will on the evening of January 12; and (2) Was he at that time under the undue influence of his brother Jake?

Section 30--06--03, North Dakota Century Code, provides that among the issues to be tried and determined by the court, where objections are made to the probate of a will, are:

1. The competency of the decedent to make a last will and testament; and

2. The freedom of the decedent, at the time of the execution of the will, from duress, menace, fraud, or undue influence.

The district court found that at the time the will was executed the appellant, Jake, whose son was the sole beneficiary under the will, was disposed to and did exercise undue influence upon him; that the disposition of the estate as made in the will was unnatural because it excluded the testator's brothers and sisters and all other nieces and nephews and was highly advantageous to the family of the appellant; and that the will as executed was not the free and lawful will of the deceased, but was obtained by the exercise of the undue influence of Jake N. Elmer.

Assuredly, this is a very close case. On the side of the appellant, many persuasive arguments can be made, as the dissent shows. The decedent was a successful farmer, self-reliant during his lifetime. Unless his mind was overpowered by undue influence, he had every right to dispose of his property as he chose. The persons present at the time he signed the will (the attorney and the male nurse, who witnessed the will) and the appellant (who saw him earlier in the day and just before the conference between the decedent and the attorney resulting in the drafting of the will) testified that he knew and understood what he was doing. They indicate that his inability to sign his name, and his use of an 'X' instead, was due to a temporary numbness in his right thumb and forefinger.

On the other hand, it appears that the decedent spent about half an hour alone with his brother, the appellant, in the afternoon, and that during this half hour the decedent was admittedly under the influence of Demerol to a high degree. The attending physician (who did not see the patient during the crucial period, but did see him many times during his hospitalization) testified that the patient was critically ill and suffering from congestive heart failure, that this medical problem results in a deficiency of a oxygen in the brain which in turn results in a 'clouding of clarity' and a reduction of a acuity, that he was very apprehensive and had difficulty in breathing, and that a person in such a condition will tend to avoid other problems and take the easy way out. In order to alleviate the apprehension, the physician prescribed Demerol, which reduces the apprehension (but has no effect on the supply of oxygen to the brain), has the further effect of producing euphoria, and reduces likelihood of resistance to suggestion. The physician described 'euphoria' as a 'lackadaisical, happy-go-lucky, slightly airy feeling.'

The trial court concluded from the foregoing that the decedent was highly susceptible to undue influence in the afternoon when he conferred with the appellant, just before the appellant left to get the attorney who subsequently drew the will, about four hours later. By the time the will was drawn and signed, the effect of the Demerol was lessened, but the problem of oxygen supply to the brain continued, and the apprehensiveness presumably returned to some degree. More important, the medical testimony of the attending physician, who was the only expert called by either side, indicates a considerable significance in the numbness of the right hand at the time of the...