In re Estate of Olson
| Decision Date | 08 February 1929 |
| Docket Number | 26,964 |
| Parties | IN RE ESTATE OF GJERMUND OLSON; THORE T. JOHNSON, PROPONENT; OLE R. ENGER, CONTESTANT |
| Court | Minnesota Supreme Court |
Thore T. Johnson appealed to the district court for Fillmore county from an order of the probate court, Michener, J. refusing to probate the will of Gjermund Olson on the grounds, raised by contestant, of lack of testamentary capacity on the part of testator and undue influence exerted by proponent. On the trial these two questions were submitted to a jury and answered favorably to contestant. From an order, Peterson, J. denying his motion for a new trial, proponent appealed. Affirmed.
Shortening of printed record.
1. Rule VIII, subd. 2, of this court is intended to encourage every possible shortening of the printed record that will not jeopardize the arguments to be presented here.
Undue influence proved by circumstantial evidence.
2. Direct proof of undue influence procuring the execution of a will is not required. The circumstantial evidence found in the record held to furnish ample support for the affirmative finding on that issue.
Attesting witnesses are competent to testify as to testator's testamentary capacity.
3. Without any foundation laid, the attesting witnesses to a will are competent to give in evidence their opinion as to the testamentary capacity of the testator. The exclusion of such an opinion in this case held error, but, for the reasons stated in the opinion, without prejudice.
Exclusion of physician's testimony harmless.
4. On the day he executed his will decedent was examined by two physicians. He understood only Norwegian, and one of the physicians spoke and understood that language. The other doctor understood it but slightly, so the first acted as interpreter. Assuming that it was error to exclude the questions and answers interpreted for and to the doctor who did not understand Norwegian, he testified so fully and gave his opinion so unequivocally that no prejudice could have resulted.
Physicians' certificate was incompetent as hearsay.
5. The examination referred to in the preceding paragraph resulted in a written certificate, signed by both of the examiners that the decedent was mentally sound. That certificate held incompetent as hearsay.
Certain opinions of layman admissible.
6. There being no question of the personal competency of a lay witness nor of the foundation for his testimony, it was not error to permit him to express an opinion upon the ability of the decedent to "grasp the extent of his property" and the "claims of his only relatives" and to "make a rational judgment and disposition of his property."
Medical certificate of death.
7. The medical certificate of death provided for by statute is admissible in evidence to prove, prima facie, the immediate cause as well as the fact of death.
Appeal and Error, 4 C.J. § 2130 p. 424 n. 80; § 2986 p 1004 n. 63; § 2989 p. 1007 n. 84.
Evidence, 22 C.J. § 168 p. 207 n. 51; § 696 p. 601 n. 66; § 702 p. 610 n. 44; § 922 p. 810 n. 98.
Wills, 40 Cyc. p. 1164 n. 78; p. 1165 n. 86.
See note in 37 L.R.A.(N.S.) 595; 11 R.C.L. 603; 2 R.C.L. Supp. 1282; 4 R.C.L. Supp. 713.
See note in 17 A.L.R. 359; 42 A.L.R. 1454; 8 R.C.L. 861; 2 R.C.L. Supp. 667; 4 R.C.L. Supp. 578.
Gray & Gray and Meighen, Knudson & Sturtz, for appellant.
Hopp & Larson and Sasse, French & Dunnette, for respondent.
In this will contest a jury has found specially that the testator did not have testamentary capacity and that undue influence was exerted by proponent, Thore T. Johnson. He appeals from the order denying his motion for a new trial.
Gjermund Olson, a long-time resident of Fillmore county and more than 85 years old, died there June 5, 1927. He had been blind since 1913 and in feeble physical health for some time. He was losing his eyesight in 1909 and in that year petitioned for the appointment of proponent as his guardian, on the self-assigned grounds of failing sight and incompetency to manage his property. Proponent was then appointed guardian of the person and estate of decedent and served as such until the latter's death. On the question of capacity there is an abundance of testimony in support of the adverse verdict. The state of the record on the issue of undue influence will be gone into later.
1. In view of certain argument, it seems appropriate that reference be made first to rule VIII, subd. 2, of this court. It permits in the printed record This rule has been very properly taken advantage of by counsel for appellant, although they may have gone too far in omitting testimony. For example, where the competency of a witness is questioned, parts of his cross-examination tending to show competency were omitted. Such omissions should be avoided and care taken that counsel for respondent be given no just cause for criticism of the manner in which the printed record is abridged. With these comments, we desire to say that this court welcomes the efforts of counsel to shorten the record. The process now authorized by rule VIII is not resorted to as much as it should be to facilitate review and economize for litigants. The rule cannot fix definite limits of the shortening process which it authorizes. Purposely it did not attempt to do so. It leaves it to counsel and their traditional spirit of fairness and accommodation to shorten the printed records just as much as circumstances will permit without jeopardizing the arguments to be advanced here.
In this case, counsel for appellant have adopted the commendable practice of printing a supplemental record calculated to make good the omissions charged against the original. In that situation, there is no merit in the suggestion that we cannot consider the case fully and dispose even of the argument that the evidence does not warrant the decision below. At the time of the decision of Guthrie v. Hagen, 162 Minn. 447, 203 N.W. 216, our rules permitted an abridgment of the record only where the sufficiency of the evidence was not challenged. They have since been amended so as to permit an abridgment in all cases where circumstances permit. Still we shall decline ordinarily to examine the settled case in order to pass upon the sufficiency of the evidence. It has not been necessary to do so in this case.
2. There is support for the jury's finding of undue influence. The will left $100 to each of seven nieces and nephews, $500 to the church of which deceased was a member, $2,000 to Mrs. Berdina Engen, in whose home decedent had lived for some time, and the residue, said substantially to exceed $20,000, to "my good friend, Thore T. Johnson," the proponent. The will explains Proponent had taken some pay ("in part" according to his annual accounts) for his services as guardian. During the last two years of his guardianship, these payments reached $400. For "board, nursing and care" of his ward during eight months of 1925, proponent's wife was paid $800, and for the same service in 1926, she received $1,300.
In addition to being the legatee of the substantial residue, proponent was appointed executor. The will was executed March 11, 1925, in a bank at Lanesboro. Proponent brought decedent there for that purpose, first having consulted Mr. O. M. Habberstad, president of the bank. March 2, 1925, at the instance of proponent, Mr. Habberstad wrote one of proponent's counsel stating that proponent had advised him that the decedent "would like to make a will;" that proponent had also said that the decedent's "head and memory" were "O.K." He referred to the fact that a guardian had been appointed in 1909, and inquired whether a will "at this stage of the game" would be valid. He was promptly advised that the appointment of the guardian had not incapacitated decedent and that, mental capacity assumed, there was no legal objection to making one. He was advised further that the question of capacity very likely would be met, and it was suggested that "about the time of the making of the will you have some competent physician examine him so that he may testify" if needed.
There is evidence which, while it does not show any intentional wrongdoing by the proponent in the handling of decedent's funds in his hands as guardian, does indicate unauthorized loans of them (some unsecured) in very substantial sums and at low interest (4 1/2 per cent in 1926) to his own children. Large amounts of them from time to time have been deposited by the proponent in Mr. Habberstad's bank. It also appears that proponent and several of his sons were heavily indebted to that bank at the time the will was drawn.
Notwithstanding dicta susceptible of a contrary construction in Fischer v. Sperl, 94 Minn. 421, 103 N.W. 502, and Tyner v. Varien, 97 Minn. 181, 106 N.W. 898, the burden of proof on the issue of undue influence was with the contestant and remained there to the end. In re Estate of Jernberg, 153 Minn. 458, 190 N.W. 990; In re Estate of Simmons, 156 Minn. 144, 194 N.W 330; In re Estate of Keeley, 167 Minn. 120, 208 N.W. 535; In re Estate of Jenks, 164 Minn. 377, 205 N.W. 271. ...
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