In re Cotcher's Estate, 53.

• Decision Date: 06 January 1936
• Docket Number: No. 53.,53.
• Citation: 264 N.W. 325,274 Mich. 154
• Parties: In re COTCHER'S ESTATE. Appeal of UNION NAT. BANK.
• Court: Michigan Supreme Court

274 Mich. 154

264 N.W. 325

In re COTCHER'S ESTATE. Appeal of UNION NAT. BANK.

No. 53.

Supreme Court of Michigan.

Jan. 6, 1936.

Application for the probate of the will of Hannah Cotcher, deceased. From a judgment n. o. v. for proponent, the contestants, the Union National Bank and Ernest L. Pearce, administrators and trustees under the will of William O'Meara, deceased, and others, appeal.

Affirmed.

Appeal from Circuit Court, Marquette County; Frank A. Bell, judge.

Argued before the Entire Bench.

M. J. Kennedy, of Ishpeming, for appellants.

Miller, Eldredge & Eldredge, of Marquette, for appellee.

EDWARD M. SHARPE, Justice.

This is an appeal from the judgment of the circuit court for the proponents of the will of Hannah Cotcher non obstante veredicto.

The testatrix died in Marquette July 17, 1932, a childless widow; the relatives who survived her are one brother, William O'Meara, and the three children of her deceased nephew, John O'Meara, whose names are Percy O'Meara, Frances Read, and Olive Stark. The will in question was dated October 11, 1930, and directs her executor to cause her body to be interred in Park Cemetery, Marquette, beside that of her deceased husband. It also directs the expenditure of $1,000 for masses for the repose of her soul, and provides a legacy of $500 each for the children of her deceased nephew, John O'Meara, and that one-third of the residue is to go to the Holy Family Orphanage Home of Marquette, and the remaining two-thirds is to go to the then pastor of St. Peter's Cathedral, Marquette, to be expended for the use and benefit of the Baraga Parochial School of Marquette. The value of the estate is approximately $27,000.

The testatrix came to this country from Ireland as a girl and in her early years was a Roman Catholic. During the year 1904 or 1905 she married Mr. Cotcher, who was of the Protestant faith and who died in 1925. During her married life she went to church rarely, if at all; but, after the death of her husband, she again resumed her early religious beliefs and became to all intents and purposes a practical Catholic. With the aid of her husband she accumulated considerable real estate, but upon his death began to dispose of it and invest the proceeds in bonds. She made three wills, the first of which was made in 1925 and shortly after her husband's death; the second will was made May 26, 1926, while the third will and the one in question was made October 11, 1930. Each of the wills makes the same provisions for the children of her nephew, John O'Meara. The last will was prepared by Mr. John J. Walsh who, at the time of the execution of the will, had been acting as attorney for the bishop of the Roman Catholic Church and was a member of a Catholic Church. At the time the last will was executed, testatrix was living in an apartment rented from Mrs. Berry, who was one of the subscribing witnesses to the will. She stayed in this apartment from about September, 1929, until May, 1931, when she went to the hospital. She had previously arranged with the hospital authorities for her board and care for the rest of her natural life, for which she paid $3,000.

When the cause came on for trial, the following special questions were submitted to the jury:

‘Was Hannah Cotcher a free agent in planning and executing the instrument in question so that it was her will, and not the result of the influence of another or others?

‘Was Hannah Cotcher at the time this will was made mentally competent to plan and execute the instrument in question as her last will?’

The jury answered both questions in the negative and brought in a verdict against the will. The trial court later entered judgment for the proponents, and from which judgment contestants appeal.

It is first contended by contestants that the relationship between Rev. Buchholz and testatrix was confidential and fiduciary in its nature, and as such gave rise to the presumption of undue influence. The record discloses that Rev. Buchholz came to Marquette in 1915 and first became acquainted with testatrix in 1925. In the summer of 1929, Rev. Buchholz saw testatrix at her home in Mrs. Berry's flat and talked to her about getting into a home. He preached to the members of his church and advised that it would be wise to make provision for themselves after death; this included provisions for masses and donations to the church or its institutions. The doctrine of the Catholic Church is that the performance of masses after death will assist in bringing the soul out of purgatory and that by donations to the church people may satisfy for the souls of those who have gone. There appears to be no dispute over the fact that Father Buchholz did nothing directly to influence testatrix. He never discussed the subject of a will or the disposition of testatrix' property with her and did not know of the bequests in the will of 1930 until he was so notified by the probate court.

In order to establish undue influence, contestants must prove that improper influence was exerted and that it had the effect of overcoming the will of testatrix. In re Spinner's Estate, 248 Mich. 263, 226 N.W. 862. While there is a presumption of undue influence where a person devises property to one in such a confidential and fiduciary relationship as a priest, In re Bromley's Estate, 113 Mich. 53, 71 N.W. 523, yet it is a rebuttable one. We said in Gillett v. Mich. United Trac. Co., 205 Mich. 410, 171 N.W. 536, 538: ‘It is now quite generally held by the courts that a rebuttable or prima facie presumption has no weight as evidence. It serves to establish a prima facie case; but, if challenged by rebutting evidence, the presumption cannot be weighed against the evidence. Supporting evidence must be introduced, and it then becomes a question of weighing the actual evidence introduced,without giving any...