In re Keeley's Estate, 25173.

• Decision Date: 16 April 1926
• Docket Number: No. 25173.,25173.
• Citation: 167 Minn. 120,208 N.W. 535
• Parties: In re KEELEY'S ESTATE. KEELEY v. OCHS et al.
• Court: Minnesota Supreme Court

208 N.W. 535

167 Minn. 120

In re KEELEY'S ESTATE KEELEY v. OCHS et al.

No. 25173.

Supreme Court of Minnesota.

April 16, 1926.

Appeal from District Court, Waseca County; Fred W. Senn, Judge.

In the matter of the estate of James Keeley, deceased. Will contest by Mary Ochs and others against M. H. Keeley. After a finding of undue influence, M. H. Keeley appeals from an order denying a motion for a new trial. Affirmed.

A. B. Childress, of Faribault, for appellant.

Moonan & Moonan and Gallagher, Madden & Gallagher, all of Waseca, for respondents.

WILSON, C. J.

The appeal is from an order denying a motion for a new trial. James Keeley died May 4, 1924, at the age of 76 years, leaving an estate valued at $58,000. His brother, the appellant herein, was about 5 years younger and has now been a lawyer for nearly 50 years. On December 22, 1921, decedent made a will, which was in the handwriting of the brother, who by its terms was to receive all the property except about $2,500 to be given to nephews and nieces and a small amount to his church. The brother was named as executor. On the day of the execution of the will, these two men deposited it with the probate court for safe-keeping. On that date the relation of attorney and client existed between the brother and decedent. As brothers, their relations were cordial and affectionate.

Subsequent to the execution of the will, the brother by letter advised decedent against consulting an attorney relative to some business matters not here important. He also wrote another letter to decedent, intimating that he anticipated an application for a guardian over decedent. It was apparently supposed that if such application were made, it would be at the request of some of the respondents. These letters possibly contained some good advice, but they were susceptible of a construction tending to corroborate the claim of undue influence. The one may have been intended to conceal the existence of the will and the other to poison the mind of decedent against his nephews and nieces so that he would not change his will. The record shows declarations of decedent inconsistent with the will. The impaired mentality of decedent incident to age, as disclosed by the evidence, permits the inference that he was susceptible to influence from the appellant. Under such circumstances, the fact that no one but appellant knew whether the contents of the will were known to the testator is important.

The mere fact that a confidential or fiduciary relation existed, with opportunity to exercise influence, does not establish undue influence. Here we have such a situation, as well as activity on the part of the beneficiary in drawing the will, and its execution was under such circumstances that no living person but the beneficiary knew whether the testator knew the contents of the will.

This court has in a number of cases, involving undue influence, made reference to inferences, shifting of burden of proof, presumptions, and prima facie case:

Clarity v. Davis, 99 N. W. 363, 92 Minn. 60:

"The claim * * * that the burden was upon the respondent [proponent] to show * * * that its execution was not procured by any undue influence * * * is, as it must be, conceded."

Fischer v. Sperl, 103 N. W. 502, 94 Minn. 421:

"But, in connection with sufficient other circumstances, these facts may make out a prima facie case of undue influence, sufficient to cast upon the principal beneficiary the burden of establishing the validity of the will in this respect."

Tyner v. Varien, 106 N. W. 898, 97 Minn. 181:

"Generally the burden of showing that a will was procured by undue influence rests upon those who assert the fact; but, when the contestants have made a prima facie case, by the production of evidence from which the presumption of undue influence arises, the burden is then upon the proponents to show that the instrument is the will of the testator. It is not very material whether we say that in such a case the burden shifts, or that the evidence produced, aided by the presumption which arises therefrom, is evidence sufficient to make a prima facie case. * * * What is meant is that a point is reached when the contestant prevails unless the proponent assumes the obligations of going forward with his evidence."

In re Howard v. Farr, 131 N. W. 1071, 115 Minn. 86:

"Even in the case of a gift from parent to child, or child to parent, while the court will scrutinize carefully the circumstances of the transaction, the presumption is in favor of its validity, and, in order to set it aside on the ground of undue influence, the court must be satisfied that it was not the voluntary act of the donor; the burden of establishing such fact being upon the party contesting the gift."

Buck v. Buck, 142 N. W. 729, 122 Minn. 463:

"* * * When the contestant has made out a prima facie case by the production of evidence from which the presumption of undue influence arises, the burden is then upon the proponent to show that the instrument is the will of the testator."

In re Estate of Jernberg, 190 N. W. 990, 153 Minn. 458:

"When such opportunity arises out of confidential relationship, such as that of religious adviser and parishioner, and there are bequests to the one sustaining the confidential relation, and also active participation on his part in the preparation of the will, and acts of evasion on his part, these facts, coupled with singularity of provisions in the will and disinheritance of relatives, are indeed important circumstances to be considered in passing on the validity of the will and may sustain an inference of undue influence. Some authorities state that, when such facts and circumstances appear, undue influence is presumed, and the burden of proof is shifted to the proponent."

Boynton v. Simmons, 194 N. W. 330, 156 Minn. 144:

"Where the beneficiary sustains confidential relations and drafts the will, or controls its drafting, it is variously stated, the phraseology and perhaps the precise thought changing from case to case, with some attendant confusion of expression and meaning, that a presumption of undue influence arises, or that an inference to that effect may be drawn as a fact, or that the facts stated make a prima facie case, or that the case is one for scrutiny."

We think the writers of our decisions had much the same thought in mind, though expressed differently. We think it better to eliminate, as far as possible, the confusion that may frequently be incident to the idea or thought of a shifting of the burden of proof. The expression is inapt. In re Jernberg, supra; Lebens v. Wolf, 165 N. W. 276, 138 Minn. 435, L. R. A. 1918C, 868. The burden does not shift. O'Brien's Appeal, 60 A. 880, 100 Me. 156; Compher v. Browning, 76 N. E. 678, 219 Ill. 449, 109 Am. St. Rep. 346; Chicago Union Traction Co. v. Mee, 75 N. E. 800, 218 Ill. 9, 2 L. R. A. (N. S.) 725, 4 Ann. Cas. 7. The burden of proving undue influence is upon the contestant. Rasmussen v. Evans, 185 N. W. 297, 150 Minn. 319. When many of the courts have said that the "burden of proof has shifted," they have meant that there is a necessity of evidence to answer the prima facie case or it may prevail, but the fact remains for the...