In re Hess' Will

• Decision Date: 07 March 1892
• Citation: 48 Minn. 504
• Parties: <I>In re</I> TIMOTHY HESS' WILL. MARY FOSTER <I>et al.</I> <I>vs.</I> ELLA DEARBORN <I>et al.</I>
• Court: Minnesota Supreme Court

48 Minn. 504

In re TIMOTHY HESS' WILL.

MARY FOSTER et al. vs. ELLA DEARBORN et al.

Supreme Court of Minnesota.

Argued November 9, 1891.

Decided March 7, 1892.

Appeal by Ella Dearborn and James Hess, proponents of the will of Timothy Hess, deceased, from an order of the district court of Winona county, Start, J., made January 23, 1891, refusing a new trial in the matter of the probate of the will.

Timothy Hess, deceased, made his will September 24, 1888, at the house of Theodore Searl, a justice of the peace, at Witoka, in Winona county, Minn. Mr. Hess and Ella Dearborn, his daughter, came to Mr. Searl's house at about eleven o'clock in the forenoon, and stayed until three o'clock in the afternoon. The daughter stated that her father had come to have Mr. Searl draw his will, and told, in his presence, how he wanted to dispose of his property. The testator was seventy-three years old, and had no wife, but had five children, viz. Mary Geeslin, Emma Tate, Cornelius Hess, Ella Dearborn, and James Hess. It appears, also, that Mrs. Dearborn had a son, George G. Ford, by a former husband. She lived in Chicago, Ill., and was then on a visit to her father. Mrs. Geeslin was divorced from her first husband, and afterwards married Mr. Foster, and lived at Baraboo, Wis. Mrs. Tate's husband died, and she afterwards married Mr. Ryan. Cornelius was married, and lived at or near Spokane Falls, Wash.

The testator told Mr. Searl, when he was about to draw the will, that he wished to give Mary but $50. Mr. Searl testified that he expressed surprise that the amount was so small, whereupon Mrs. Dearborn said that her brother James wanted Mary to have but five dollars, — just enough so she could not break the will. He also testified that Mr. Hess did not say much, was not talkative, but appeared like a man that was hardly satisfied with what he was doing; that, when the amount was mentioned which Cornelius was to have, Mrs. Dearborn said that Cornelius' wife was keeping a ranch of bad repute near Spokane Falls. The testator appeared like a man that was doing something that he seemed to think necessary, and that had got to be done, but did not seem to like to do it. After it was completed he said it might not amount to anything. He seemed to be studious and very thoughtful. He did not appear to be satisfied with what he was doing. Searl further testified that when Hess came to his house he told Searl he had come to have his will drawn. Searl asked him how he wanted it drawn, and he told him, and it was discussed more or less as he was drawing it. Hess told what each bequest should be. Mrs. Dearborn said her father did not want Mary to have any more, because she would give it to her husband, Mr. Geeslin, and he would squander it. Searl further said: "She did not dictate the will to me. I drew it as he dictated it. He was decided. He did not want it changed from the way he had arranged it in his mind. Mrs. Dearborn said in the conversation that her sister Emma's conduct was such that she had no right to the property, and that Mr. Geeslin had made boasts that he would have a good time on Mr. Hess' money. The testator said but very little. He was generally quite a sociable man. He was competent and knew what he was about all the time. I did not believe the statements that Mrs. Dearborn made about her sister, and her brother's wife, and do not know whether the testator believed them or not."

Mrs. Searl and Mrs. Dearborn, the other persons present when the will was drawn, testified substantially to the same effect.

Mr. Hess died in December, 1889, and the will was presented in the probate court for Winona county, and admitted to probate on March 8, 1890. The contestants appealed to the district court, and a trial was had in September, 1890. The court submitted to the jury two questions, viz.:

First. Was the alleged will of Timothy Hess procured to be made by the undue influence of Ella Dearborn and James Hess, or either of them?

Second. Was the alleged will of Timothy Hess procured to be made by the fraud or deceit of Ella Dearborn and James Hess, or either of them?

Each of these questions was answered by the jury in the affirmative. The proponents moved the court to set this verdict aside and grant a new trial on the ground that it was not justified by the evidence and was contrary to law. The motion was denied, and they appealed.

Lloyd Barber, for proponents.

Keyes & Brown, for contestants.

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VANDERBURGH, J.

Timothy Hess, late of Winona county, died testate, in December, 1889, leaving, him surviving, five children, James Hess, Mrs. Ella Dearborn, Mrs. Mary Foster, Mrs. Emma Ryan, and Cornelius Hess. He was upwards of 70 years old. His will was executed September 24, 1888. In this will James Hess and Mrs. Ella Dearborn were named executors, and legacies of $50 each, only, were left to Mrs. Foster, Mrs. Ryan, and Cornelius Hess, a legacy of $500 to George Ford, a son of Mrs. Dearborn, and all the rest and residue of the estate of the deceased was given and devised to the executors, James Hess and Mrs. Dearborn, share and share alike. The estimated value of the estate was about $5,000. The validity of this will is contested by Mrs. Foster and Mrs. Ryan and Cornelius Hess, who alleged that the same was procured to be executed through the fraud of James Hess and Mrs. Dearborn, and constraint and undue influence by them executed and exercised over the mind of the testator at the time of the execution thereof. On appeal from the order and judgment of the probate court, the issue of fraud and undue influence was tried by jury in the district court of Winona county, and a verdict thereon rendered in favor of the contestants.

One of the principal assignments of error is that the findings and verdict of the jury are not justified by the evidence. It is contended by the proponents that there was no evidence of fraud or undue influence in the case warranting the submission of the question to the jury. It is not necessary, in considering this assignment of error, to review the evidence in extenso, or to make special reference to the testimony of the several witnesses. It will be sufficient to refer to such parts of it as may be necessary to show the basis of our conclusions upon this question. What is and is not undue influence has been considered and declared in our former decisions, and we need do little more than refer to them here. In re Storer's Will, 28 Minn. 11, (8 N. W. Rep. 827;) Nelson's Will, 39 Minn. 205-208, (39 N. W. Rep. 143;) Mitchell v. Mitchell, 43 Minn. 73, (44 N. W. Rep. 885.) It is said in Re Storer's Will: "From the nature of the case, the evidence of undue influence will be mainly circumstantial. It is not usually exercised openly, in the presence of others, so that it can be directly proved. But the circumstances relied on to show it must be such as, taken altogether, point unmistakably to the fact that the mind of the testator was subjected to that of some other person, so that the will is that of the latter, and not of the former." But the burden of proof rests upon the contestants to establish the existence of fraud or undue influence; and that, we are obliged to hold, after a very careful and thorough consideration of the evidence in this case, they failed to do.

Evidence was received on the trial of the declarations of the testator subsequent to the execution of the will, for the purpose of showing the extent and effect of the undue influence claimed to have been exercised...