Estate of Roll, Matter of

• Decision Date: 23 March 1989
• Docket Number: No. 17185,17185
• Citation: 770 P.2d 806,115 Idaho 797
• Parties: In the Matter of the ESTATE OF James Gregg ROLL, Deceased. Alvah J. ROLL and Henry H. Roll, Plaintiffs-Appellants, v. Lola M. ROLL, Richard L. Roll, and Elizabeth J. Roll, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 806

770 P.2d 806

115 Idaho 797

In the Matter of the ESTATE OF James Gregg ROLL, Deceased.

Alvah J. ROLL and Henry H. Roll, Plaintiffs-Appellants, v. Lola M. ROLL, Richard L. Roll, and Elizabeth J. Roll, Defendants-Respondents.

No. 17185.

Supreme Court of Idaho.

March 23, 1989.

Randolph E. Farber, Nampa, for plaintiffs-appellants.

Risch, Goss, Insinger & Salladay, Boise, for defendants-respondents. Lawrence E. Kirkendall, argued.

SHEPARD, Chief Justice.

This is an appeal from a district court order which affirmed the decision of the magistrate court. The central question to be resolved is whether the court erred when denying the appellants' motion for a judgment notwithstanding the verdict. Incident to that determination is whether attorney fees are due the respondents for the defense of the former appeal to the district court, and for this subsequent appeal. Such fees were awarded at the district court level. We affirm the denial of appellants' motion for judgment notwithstanding the verdict and we hold that respondents are entitled to an award for their reasonable attorney fees for this and the earlier appeal.

The decedent-testator, James Gregg Roll, was the father of the litigants. On July 6, 1983, the respondents presented a writing that purported to be the last Will and Testament of James Gregg Roll. This instrument was in the handwriting of Richard L. Roll, was witnessed by Richard L. Roll and Elizabeth J. Roll, and was signed by the decedent. It was accepted for probate, and letters of administration were issued to Richard L. Roll and Lola M. Roll. The appellants, Alvah J. and Henry H. Roll, brothers to the respondents, filed an Objection to the Petition for Formal Probate of Will, citing the seemingly disproportionate share granted to Elizabeth J. and Lola M. Roll, and moved for the appointment of a special administrator. The motions were denied.

Appellants noted, and it appears uncontroverted, that the contested instrument was drafted, witnessed, and held for safekeeping by the respondents without the benefit of outside legal counsel or third-party witnesses.

At trial, Richard L. Roll testified to the active part that his ninety-year-old, sight-impaired father played in "walking off" the farm acreage, writing out the complex legal description, and executing the contested instrument. The decedent's eye doctor testified for the appellants that James Gregg Roll was legally blind, and would have had difficulty performing these tasks. The appellants asserted that their father was almost deaf and would have had trouble hearing the will read to him. They alleged that the events attested to by Richard L. Roll were highly improbable occurrences, and should be read as indica of undue influence. On these facts and testimony, it was asserted that respondents violated the position of trust and confidence that they occupied in their dual role as drafters of the will and sole witnesses to its execution.

Based on that conflicting testimony, and that of numerous witnesses for each side, including the decedent's eye doctor, minister, neighbors, and various family members, the jury found the will to be valid. The appellants moved for a judgment notwithstanding the verdict, citing the alleged incredible nature of respondents' testimony, and the use of improper jury instructions. The court issued an order denying the appellants' motions and affirming the jury verdict as rendered.

On appeal to the district court it was held that substantial, competent evidence existed for the verdict, that the jury instructions on the whole were neither misleading nor prejudicial, and the judgment of the magistrate court was affirmed. Also, the district court held that respondents were entitled to their attorney fees and costs. Attorney fees were awarded because the appeal was viewed by the court as a mere invitation to second guess the jury. Costs were awarded to respondents as the prevailing party.

The law regarding undue influence is a necessary prelude to our analysis of the jury instructions applied at trial. In Idaho, undue influence is recognized where sufficient evidence has been presented that indicates a testator's (testatrix's) free agency has been overcome by that of another. King v. MacDonald, 90 Idaho 272, 279, 410 P.2d 969, 973 (1965), citing In re Eggan's Estate, 86 Idaho 328, 386 P.2d 563 (1963) and In re Lunder's Estate, 74 Idaho 448, 263 P.2d 1002 (1953). Moreover, where parties occupy the dual role of fiduciary and beneficiary, or where the fiduciary has been actively involved in will preparation or as witnesses, Idaho law creates a rebuttable presumption of undue influence. See I.C. § 15-2-501, et seq. Thereafter, the burden rests with the proponent to rebut that presumption.

To rebut the presumption, the proponent must come forward with that quantum of evidence that tends to show that no undue influence existed. Once that burden has been met, the matter becomes one for the trier of fact. The existence of undue influence will be determined accordingly, and on appeal such determination will only be disturbed if not supported by substantial, competent evidence. King v. MacDonald, 90 Idaho at 280, 410 P.2d at 977.

In the instant case, after a review of the proponents' evidence, it is our view that the presumption of...