Ferrill, Matter of, No. 4898

Docket NºNo. 4898
Citation640 P.2d 489, 1981 NMCA 74, 97 N.M. 383
Case DateJune 23, 1981
CourtCourt of Appeals of New Mexico

Page 489

640 P.2d 489
97 N.M. 383
In the Matter of the Last Will and Testament of Hazel Cash
FERRILL, Deceased,
Joe THORP, Appellant,
Don CASH, Appellee.
No. 4898.
Court of Appeals of New Mexico.
June 23, 1981.
Writ of Certiorari Quashed.

[97 N.M. 386]

Page 492

Alan Konrad, Miller, Stratvert, Torgerson & Brandt, P.A., Albuquerque, for appellant.

Thomas L. Popejoy, Jr., Popejoy & Leach, P.C., Richard E. Ransom, Albuquerque, for appellee.


LOPEZ, Judge.

Joe Thorp, a legatee under the July 12, 1979, will of Hazel Cash Ferrill, appeals the judgment of the district court denying admission of this will to probate. A jury of six had found the will to be invalid as a result of undue influence exerted on the decedent by Mr. Thorp.

Eight points are raised on appeal. They fall into four broad categories as follows: 1) whether there was substantial evidence to support the judgment; 2) whether the case should have been tried to a jury, and especially a jury of six; 3) whether certain testimony should have been excluded; and 4) whether the court erred in certain jury instructions given and refused. Finding no error, we affirm the judgment of the district court.

Hazel Cash Ferrill died on December 18, 1979, at the age of 82. She suffered from cancer the last fifteen or sixteen months of her life and at various times during this period underwent various treatment for it. Joe Thorp and his wife, Billie, worked for Phillip McKee, a neighboring rancher. Beginning in May, 1979, the Thorps began to help care for Hazel and her sister, Beulah, who lived with her. Both women moved into a house on McKee's ranch for a time that spring. In part of May and June, the Thorps took care of Beulah when Hazel was in Albuquerque undergoing chemotherapy treatments, and helped Hazel when she was not in the hospital. In July 1979, while in the hospital for more treatments, Hazel executed a will disinheriting her family and leaving substantially her entire estate to the Thorps. Her grandson, Don Cash, contested the admission of the will to probate.

I. Substantial evidence of undue influence.

Mr. Thorp argues first that there was no evidence of undue influence and that, consequently, the court erred in refusing to grant him a directed verdict. His second argument is that, even if there was some evidence going to the contestant's claim, there was not substantial evidence to support the verdict. We condense these arguments into one and address the question of whether substantial evidence of undue influence was presented at trial. Since we conclude that there was substantial evidence on which to invalidate the will, it is clear that the judge did not err in refusing [97 N.M. 387]

Page 493

to direct a verdict for the proponent. It is irrelevant if the judge misstated the grounds at the time of denying the motion. See, In re Will of Skarda, 88 N.M. 130, 537 P.2d 1392 (1975).

In considering the evidence, we are mindful that presumptions are in favor of verdicts, that we are to view the evidence in the light most favorable to the prevailing party, and that we are to disregard all inferences or evidence to the contrary. Anaconda Co. v. Property Tax Dept., 94 N.M. 202, 608 P.2d 514 (Ct.App.1979) cert. denied, 94 N.M. 628, 614 P.2d 545 (1980). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate support for a conclusion. Id.

Undue influence has not been specifically defined in New Mexico. Our Supreme Court wrote in 1949:

We make no attempt to define "undue influence". Neither is it susceptible of any fixed formula. Whether undue influence is present is always a question to be determined from the circumstances of the particular case, and any attempt to define it may well suggest a clear path of evasion. But, undue influence in the sense as used means influence, improperly exerted, which acts to the injury of the person swayed by it or to the injury of those persons whom she would have benefitted. It is immaterial whether such influence is exercised directly or indirectly.

Brown v. Cobb, 53 N.M. 169, 172, 204 P.2d 264, 266 (1949). Generally, undue influence is not proven directly, but is inferred from the circumstances. Galvan v. Miller, 79 N.M. 540, 445 P.2d 961 (1968); Hummer v. Betenbough, 75 N.M. 274, 404 P.2d 110 (1965); Calloway v. Miller, 58 N.M. 124, 266 P.2d 365 (1954); Trigg v. Trigg, 37 N.M. 296, 22 P.2d 119 (1933); Cardenas v. Ortiz, 29 N.M. 633, 226 P. 418 (1924). A presumption of undue influence arises if there is shown to be a confidential or fiduciary relation between the primary beneficiary and the testator and if suspicious circumstances are also shown. Hummer; 94 C.J.S. Wills § 239 (1956). A confidential or fiduciary relation exists "whenever trust and confidence is reposed by one person in the integrity and fidelity of another." 94 C.J.S. Wills § 230 at 1078 (1956), quoted in Hummer, 75 N.M. at 280, 404 P.2d at 114. Some of the circumstances which courts have found suspicious in cases where a will was contested on the grounds of undue influence are: 1) the testator is old and in a weakened physical or mental condition; Galvan; Hummer; Ostertag v. Donovan, 65 N.M. 6, 331 P.2d 355 (1958); Cobb; Cardenas; 2) there is a lack of consideration for the bequest; Ostertag; Cobb; Salazar v. Manderfield, 47 N.M. 64, 134 P.2d 544 (1943); Cardenas; 3) the disposition of the property is unnatural or unjust; see, Hummer; see, generally, Galvan; Ostertag; 4) the beneficiary participated in procuring the will; Galvan; Hummer; and 5) the beneficiary dominated the testator. Galvan.

Having examined the evidence in the light most favorable to appellee, we find there is substantial evidence of a confidential relation between Joe Thorp and Hazel Cash. The evidence is uncontradicted that Hazel trusted Joe and thought very highly of him. This relation of trust began in the late spring of 1979 and continued until Hazel's death in December of that year. As the relation progressed, Hazel turned the handling of her affairs more and more over to Joe Thorp, and, in November, she signed a power of attorney in his favor. We do not agree with Thorp that there is no evidence that this confidential relation existed on July 12, 1979, the day the will was signed. Hazel and her sister, Beulah, resided at the McKee ranch during part of May and June, 1979, where the Thorps devoted much time and attention to them. The jury could reasonably infer that the confidential relation began at this time. Moreover, Hazel asked that Joe be present when she signed the will, a further indication that, by that time, she trusted him concerning her most important affairs.

There is also substantial evidence of several suspicious circumstances which, together with the existence of the confidential[97 N.M. 388]

Page 494

relation, would give rise to a presumption of undue influence. 1) Hazel was old and sick. She was 82 when she died. The last year of her life, during the time she became attached to Joe Thorp, she was suffering from cancer. In the spring of 1979, she began chemotherapy treatments. By May 1979, her condition was detriorating; she suffered from pain, and lack of oxygen, was weak, irritable, and needed help in caring for Beulah and the ranch. Dr. McCullough, a psychiatrist, gave his opinion that Hazel would have been susceptible to undue influence at the time the will was signed due to her physical and mental condition. 2) The evidence indicated that the value of the ranch left by Hazel to the Thorps was between $875,000.00 and $1,000,000.00. Although they were a great help to her in the last months of her life, they were being paid at that time by Phillip McKee who had asked them to help Hazel. The jury could have found there was inadequate consideration for Hazel's bequest. 3) Don Cash, Hazel's grandson, was raised by Hazel as a son. During his childhood, he helped her by working in the bars she ran, working in her nursing home, and at the ranch. In October and November of 1978, she and her sister lived with Don and Marie, his wife. During this time, Marie drove her to Albuquerque for daily radiation treatments. In a will Hazel made in September 1978, before she became acquainted with the Thorps, she left most of her estate to Don. From the evidence, the jury could have concluded that the disposition of the will was unnatural or unjust. 4) Joe Thorp's presence at Hazel's bedside when she signed the will is not in itself a suspicious circumstance. In listing suspicious circumstance, C.J.S. states:

"(N)o presumption of undue influence will be raised where the activity of the beneficiary in the * * * execution of the will was in compliance with the request of the testator."

94 C.J.S. Wills § 239 at 1096 (1956). The evidence indicates that Joe was present because Hazel asked that he be there. While by itself, his presence at the execution of the will would not be sufficient to raise a presumption of undue influence, it is further evidence that Hazel trusted him and that the confidential relation between the two was established by the time the will was signed. 5) While there is no direct evidence that Joe dominated Hazel by July 1979, such evidence is not crucial.

Citing Galvan, Thorp claims there must be a showing of strong dominance by the beneficiary at the time of the execution of the will. We do not think Galvan stands for this proposition. Such an interpretation does not harmonize with other cases on undue influence which have been decided in New Mexico. Cf. Hummer; Ostertag; Calloway; Cobb; Salazar; Trigg; Cardenas. A showing of dominance is just one of the possible circumstances which, together with a confidential relation, gives rise to a presumption of undue influence.

A presumption of undue influence will arise if it is shown that, in addition to the confidential or fiduciary relation, the testator was dominated, or controlled by the beneficiary, or that the testator was weak-minded or in frail...

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