Ginter v. Ginter

• Decision Date: 10 April 1909
• Docket Number: 15,733
• Citation: 101 P. 634,79 Kan. 721
• Parties: J. H. GINTER v. FRED GINTER et al
• Court: Kansas Supreme Court

101 P. 634

79 Kan. 721

J. H. GINTER v. FRED GINTER et al

No. 15,733

Supreme Court of Kansas

April 10, 1909

Decided January, 1909.

Error from Shawnee district court; ALSTON W. DANA, judge.

STATEMENT.

ON August 14, 1903, Louis Ginter executed his will, giving one-half of his property to his wife, $ 100 each to three married daughters, $ 50 to his son John, and the remainder of his estate to his son Fred. Fred was named as executor, was given the care and management of the estate for five years and was allowed the same period in which to pay bequests. The will was duly witnessed by S. B. Isenhart and Mae V. Burnett. On January 15, 1904, the testator died, leaving as his heirs the beneficiaries named in the will, and leaving an estate consisting of real and personal property valued at $ 3000. It may have been worth $ 3750. In March, 1904, the will was duly probated, and soon afterward John Ginter commenced proceedings to set it aside on the ground of undue influence and fraud practiced upon his father by Fred Ginter.

On the trial the plaintiff's evidence tended to prove that Louis Ginter was about seventy years old when he made his will. He was very deaf, so that conversation with him was quite difficult, and when once an idea was implanted in his mind he clung to it with much tenacity. The son John, who was forty-five years old, had not lived at his father's house for many years, and when the daughters had married they had moved away. The son Fred remained with his father. At the time of the trial he had a wife and four children. Some twelve or fifteen years before his death Louis Ginter entered into a partnership with Fred to engage in farming. At first John was taken in as a member of the firm, but in a few days he had difficulty with his father, who then refused to do further business with him. The partnership between Fred and his father lasted until the latter's death, and through their joint efforts the substantial part of the property disposed of by the will was created. A homestead of 160 acres of land covered by a mortgage of $ 1100 was so acquired where both families lived, each partner paying one-half of the expenses. The father had great confidence in Fred--much more than in any other of his children. His disposition was to rely upon persons whom he trusted. Generally he consulted Fred, and as he aged he depended more and more upon Fred and yielded more to his advice than in former years. It might be said that for ten years before his death Fred had been his confidential business adviser.

In 1899 John suffered the loss of a hand through an accident. He was poor, and had a wife and four children to support. After that his father manifested sympathy and affection for him by giving him presents of small value, and both his father and brother indorsed notes for him to enable him to borrow money. In January, 1903, bad feeling existed between John and two of his brothers-in-law. Previous to that time there had been bickerings between John and Fred. In April, 1903, John noticed a coolness toward him on the part of his father. His father seemed to avoid him, and refused to sign a note for him. The father's birthday occurred on April 5 and a dinner was given at John's house. The father came, but went away soon after dinner. Another dinner was given on August 17, the mother's birthday, but the father did not come. When the mother desired to visit John's house the father took her there, left her, and went on to the home of one of his daughters.

Probably in March, 1903, John and Fred had a conversation relating to the disappearance of some undivided money belonging to Fred and his father. John said: "If father has more money than he has use for, if at father's death the property is equally divided, twenty cents of every dollar that you give away you give away twenty cents of my money." Fred became incensed and said: "You claim that twenty cents out of every dollar is yours, do you?" John replied "I said that of every dollar father and mother did not use twenty cents of it would be mine if it was divided equally." Fred told his father. Precisely what Fred stated can not be determined, but it may be assumed the substance was that John had said every dollar ought to be accounted for because twenty cents of it belonged to him. One of the sisters heard the conversation and corroborates John's version of it. A little later in March the father spoke of the matter to this daughter. He was angry at John and said that he would show John he would give twenty cents of it whether John wanted him to or not. The daughter endeavored to explain to her father what had occurred, and to make him understand the truth of it, and thought she did so. He said: "If that's the way it is n't quite so bad, but it is n't the way Fred tells it."

In July, 1903, the father, who was much opposed to the use of intoxicating liquors, went to the home of Mr. Rupple, one of his sons-in-law, to inquire about John's drinking. Mr. Rupple was away and he talked with Mrs. Rupple. He said he had it from pretty good authority that John was drinking heavy; that Fred had told him; and that the day Fred and John and Mr. Rupple had all brought hogs up John had been so drunk he did not know what he was doing and had a racket with the feed-yard man. What Mrs. Rupple said, or what further investigation her father made, is not disclosed. In October, after the will was made, the father talked with another daughter, Mrs. Hill, about John's drinking. He said he had it from good authority John was drinking "like siz," and further said: "If I outlive mother John won't get anything, but if mother outlives me he will get what the law allows him." John testified that he had never been drunk but once, when he was given liquor to deaden the pain after the loss of his hand, and that he was not a drinking man. After the father's death Fred accused John of being drunk on the occasion at the feed-yard, and an altercation ensued.

It appears that Louis Ginter died as the result of an injury received on November 20, 1903. John and two of his sisters testified they did not know of a will until after their father's death.

The trial court sustained a demurrer to the foregoing evidence, and the only question is whether it was sufficient to take the case to the jury on the charge of undue influence and fraud.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WILLS--Undue Influence. To destroy the validity of a will undue influence must amount to coercion, compulsion or constraint which destroys the testator's free agency and by overcoming his power of resistance obliges him to adopt the will of another instead of exercising his own. It must be brought to bear directly upon the testamentary act, and particular parties must be benefited or disfavored as the result of the purpose and pressure of the dominating mind.

2. WILLS--Fraud--Undue Influence. Generally the same considerations control when a testator is unduly influenced by misrepresentations and artifices usually comprehended by the term "fraud." Although in strictness fraud and undue influence are distinguishable, more often than otherwise it is a mere matter of a choice of terms. Always something sinister is involved which perverts the testator's will by overcoming his power truly to express his real desires.

3. WILLS--Presumption of Validity--Burden of Proving Undue Influence. When a contested will appears to have been duly executed and attested according to the statute of wills the law presumes it to be valid. This presumption must be overcome by proof, and the burden of proof rests upon whoever alleges it to be the product of undue influence or fraud.

4. WILLS--Evidence of Undue Influence. In all such cases the proof must be substantial, so that the judges of fact, having a proper understanding of what undue influence is, may perceive by whom and in what manner it has been exercised, and what effect it has had upon the will.

5. WILLS--Same. In making his proof a contestant is not limited to the bare facts which he may be able to adduce, but he is entitled to the benefit of all inferences which may be legitimately derived from established facts.

6. WILLS--Same. Suspicion, conjecture, possibility or guess that undue influence or fraud has induced a will is not sufficient to support a verdict to that effect.

7. WILLS--Same. Power, motive and opportunity to exercise undue influence do not alone authorize the inference that such influence has in fact been exercised.

8. WILLS--Same. The mere existence of confidential relations between a testator and a beneficiary under his will does not raise a presumption that the beneficiary has exercised undue influence over the testator and does not cast upon the beneficiary the burden of disproving undue influence. Those consequences follow only when the beneficiary has been actively concerned in some way with the preparation or execution of the will.

9. WILLS--Same. The right to make a will includes the right to make it according to the testator's own desires, subject only to the statutory restrictions. It is no condition of this right that the will shall please a jury, or a court, or the testator's relatives, or any one else. The giving of unequal portions to the natural objects of the testator's bounty raises no presumption of undue influence. The fact may be considered in determining the question, Is this the testator's will? But in the absence of proof of undue influence it has no weight.

10. WILLS--Undue Influence--Fraud--Demurrer to Evidence. In this case a demurrer was properly sustained to evidence offered in support of an issue of undue influence and fraud in the making of a will.

J. J Schenck, and W. E. Atchison, for plaintiff in error.

W. W Harvey, for defenda...