Estate of Price, In re

• Decision Date: 06 June 1986
• Docket Number: No. 85-007,85-007
• Parties: In re ESTATE OF Earl S. PRICE, Deceased. Robert L. CURTIS and Hazel Dolores Curtis, Appellants, v. Devona E. PRICE, Appellee.
• Court: Nebraska Supreme Court

Page 72

388 N.W.2d 72

223 Neb. 12

In re ESTATE OF Earl S. PRICE, Deceased.

Robert L. CURTIS and Hazel Dolores Curtis, Appellants, v. Devona E. PRICE, Appellee.

No. 85-007.

Supreme Court of Nebraska.

June 6, 1986.

Syllabus by the Court

1. Wills. An action to probate a will is one at law.

2. Wills: Undue Influence: Proof. In an action to probate a will, undue influence is to be proved by a preponderance of the evidence.

3. Undue Influence: Evidence: Proof. A party seeking to prove the exercise of undue influence is entitled to an evaluation of all the circumstances proved, together with all the reasonable inferences to be drawn therefrom; but if all the evidence is circumstantial and the inferences to be drawn therefrom are as equally consistent with the hypothesis that undue influence was not exercised as they are with the hypothesis that such influence was exercised, the burden of proving the exercise of undue influence by a preponderance of the evidence has not been met.

4. Directed Verdict. Upon a motion for a directed verdict, the moving party is deemed to have admitted as true all the material and relevant evidence admitted which is favorable to the party against whom the motion is directed, and the party against whom the motion is directed is entitled to the benefit of all proper inferences which can reasonably be deduced therefrom.

5. Wills: Undue Influence: Words and Phrases. Undue influence sufficient to defeat a will is such manipulation as destroys the free agency of the testator and substitutes another's purpose for that of the testator.

6. Wills: Undue Influence: Proof. The elements which must be proved in order to vitiate a will on the ground of undue influence are that (1) the testator was subject to undue influence, (2) there was an opportunity to exercise such influence, (3) there was a disposition to exercise such influence, and (4) the result was clearly the effect of such influence.

7. Wills: Undue Influence. In evaluating the evidence and the proper inferences to be drawn therefrom, it is not necessary to separate each fact supported by the evidence and allocate it under one or more of the four essential elements requisite to establish the exercise of undue influence; rather, the trier of fact is to view the entire evidence and rest the decision upon whether the evidence as a whole is of such a nature as to prove each of the elements.

Laurice M. Margheim, Alliance, for appellants.

Clark G. Nichols of Winner, Nichols, Douglas and Kelly, Scottsbluff, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

CAPORALE, Justice.

Hazel Dolores Curtis and her husband, Robert L., appeal from the denial of probate to the last will executed by the deceased testator, Earl S. Price, the father of Dolores. Because of the terms of an earlier will, the appellee, Devona E. Price, the testator's daughter-in-law, thereby stands to inherit a certain 160-acre parcel of land which the daughter and her husband would have inherited under the last will. The issues presented by the assignments of error of the daughter and her husband are (1) whether the trial court properly instructed the jury and (2) whether the evidence is such that the trial court should in any event have sustained the motion of the daughter and her husband to direct a verdict in their favor. We reverse and remand with the direction that judgment be entered admitting the last will of the testator to probate.

THE EVIDENCE

The testator died a widower on May 24, 1984, at 90 years of age, seized of various lands in Box Butte County. In a will executed May 20, 1981, he devised certain of those lands, including the 160-acre parcel in question, to his daughter-in-law and devised certain other lands to his daughter and her husband. In his last will, executed December 11, 1981, the testator devised the The parties stipulated that the testator was possessed of testamentary capacity when both wills were executed and that both wills were executed in the manner provided by law. The daughter-in-law contends, however, that the last will was the result of the undue influence exerted over the testator by his daughter and her husband. The parties also stipulated that if the last will was the product of undue influence, no objections would be lodged to the probate of the May will.

disputed 160-acre parcel to his daughter and her husband instead of to his daughter-in-law. The other provisions of that last will were the same as those of the earlier will.

The evidence reveals that the testator's daughter-in-law and his son, Harold, were married in 1948 and that they lived on land adjacent to the disputed 160 acres until the son's death in April 1981, after which time the daughter-in-law continued to live on that land. The evidence also establishes that both of testator's children and their spouses farmed the testator's lands, that the daughter-in-law continued to do so after the son's death, and that the testator had made inter vivos conveyances of some of his land holdings to both of his children and their respective spouses.

In June 1978 the son asked the testator to sign a mortgage on some land, which the testator did. Thereafter, the testator became unhappy about the amount of debt his son was incurring and the fact that he had not been told about the indebtedness. The testator also became concerned about his liability on the mortgage he had signed but was advised by his then attorney that he had no personal liability on the mortgage note, advice which was later confirmed by another attorney.

In the fall of 1978 the testator had a leg amputated. At that time his daughter and her husband moved in with him and took care of the testator until after Christmas of that year, when he entered a hospital. After leaving the hospital, he went to a convalescent center, where he stayed until 1982, and then moved to a nursing home, where he remained until his death.

Since the testator was unable to drive and to get around very well after he lost his leg, his daughter continued to run errands for him and to transport him. She had authority to write checks on the testator's account in order to help him take care of his bills, which she went over with him on a monthly basis. The testator was kept informed of all the deposits made to his account, and his daughter and her husband helped the testator with his business affairs when asked. The testator trusted and relied upon the information the daughter's husband gave him.

On the 4th of July following his son's death, the testator was driven by his daughter and her husband around the farm the daughter-in-law was leasing from the testator. Thereafter, the testator berated his daughter-in-law for the condition of the farm, which, according to the daughter-in-law's son, was not in bad condition. Nonetheless, according to the daughter-in-law, her relationship with the testator deteriorated after that incident.

According to the daughter-in-law, the daughter would not allow the testator to accompany the daughter-in-law and her children to his son's funeral; rather, the daughter and her husband took him. The testator refused to attend his son's funeral service, electing to remain in his daughter's car instead.

At some point the testator came to believe that he had not received all of his landlord's share of the wheat from the 1980 crop harvested by his son. According to the daughter-in-law, the testator's share of the wheat had been moved for storage so that it would not be commingled with his son's. She thought that although the testator seemed relatively satisfied with that explanation, he never really fully understood the situation, as he continued to question the matter from time to time.

In the fall of 1981 the testator was brought to the daughter-in-law's farm by his daughter and her husband, at which time the testator demanded some lumber The attorney who represented the testator until he began to represent the daughter-in-law in the handling of her husband's estate, and who initially advised the testator concerning the lack of personal liability on the mortgage note, was of the opinion the testator could have been susceptible to undue influence. He based that notion on the fact that the testator questioned him and was confused about conveyances he had made several years in the past. Further, in 1981, while the testator expressed concern over his son's finances, he at the same time cut back the amount of land he allowed the son to farm. This action appeared inconsistent to the attorney. This attorney also testified that the testator told him his daughter had expressed the thought that the attorney might have a conflict of interest in representing both the testator and his deceased son's estate, but the daughter denied doing so.

about which the daughter-in-law had no knowledge.

The daughter testified she did not give her father advice, as she respected the fact that he knew what he wanted and how he wanted to go about things. She did not feel giving her father advice would "have done me any good."

The attorney the testator consulted after the death of the son, and who confirmed the first attorney's advice concerning the lack of personal liability on the mortgage note, testified that the testator was an independent thinker with a sharp mind who would listen to what others had to say but who made up his own mind. The testator was, in this attorney's opinion, determined and clearheaded and knew what he was doing. Although his daughter and her husband took the testator to the attorney's office, it was the testator who supplied the information. This attorney's records reflected, however, that he had talked with the testator's daughter and her husband from time to time in the course of preparing wills for the testator, which, according to the son-in-law, was for the purpose of providing legal descriptions. This attorney did no legal work for the daughter or her husband...