In re Lillie's Estate
| Citation | 159 P.2d 542,195 Okla. 597,1945 OK 136 |
| Decision Date | 24 April 1945 |
| Docket Number | 31770. |
| Parties | In re LILLIE'S ESTATE. v. LYON et al. LILLIE |
| Court | Oklahoma Supreme Court |
Rehearing Denied June 5, 1945.
Application for Leave to File Second Petition for Rehearing Denied June 26, 1945.
Appeal from District Court, Pawnee County; Oras A. Shaw, Judge.
Proceedings in the matter of the estate of Gordon W. Lillie, deceased, on the petition of Frank Lyon, vice-executor named in codicil to decedent's purported will, and Lena Green for probate of purported will and codicil, contestated by Albert Lillie. From a decree of the district court dismissing the contest and affirming the order of the county court admitting the will and codicil to probate, contestant appeals.
Affirmed.
Syllabus by the Court.
1. Undue influence as will invalidate a will is that which, in effect, substitutes the will of others or another for the will of testator.
2. The presence of beneficiaries and the existence of their confidential relation with the testator at the time of the execution of a will is a circumstance which, if not shows to bear upon the testamentary act, is not undue influence such as defeats a will.
3. Inferences of undue influence which arise from the fact that testator and beneficiaries are in relation of trust and confidence are inferences of fact which may be rebutted by any competent evidence.
4. The mere existence of confidential relation between testator and beneficiaries under his will does not raise a presumption that the beneficiaries have exercised undue influence over the testator and does not cast upon the beneficiaries the burden of proof upon the issue of undue influence.
5. The activity on the part of beneficiaries which gives rise to the inference of undue influence must go to the substance of the testamentary act and in the absence of such procurement, no burden of proof rests upon the legatee.
N. E McNeill, of Tulsa, and E. R. McNeill, of Pawnee, for plaintiff in error.
Louis H. Byers, of Cleveland, for defendants in error.
This proceeding originated in the County Court of Pawnee County where an order was made admitting the will, together with codicil, of Gordon W. Lillie to probate and appointing Frank Lyon executor. Albert Lillie, a brother of decedent, appealed to the District Court. There the cause was tried de novo, resulting in findings of fact and conclusions of law and a judgment and decree establishing the will and codicil, dismissing the contest, and affirming the order of the County Court. Contestant appeals.
Gordon W. Lillie died February 3, 1942 at the age of 82 years, a widower without issue, leaving surviving him as heirs at law, Albert Lillie, Lena Green, and Effie Judy, brother and sisters. The estate was valued at $200,000. Gordon W. Lillie, under the name of 'Pawnee Bill', had gained a national reputation as a plainsman and showman.
On May 27, 1940, deceased executed a will in due form, devising and bequeathing his property as follows:
To Joe Barrera, known as 'Mexican Joe', $1,000.00;
To Nellie Ruffner 'faithful employee', $800.00 and an automobile;
To Mary Barrers 'faithful employee' $500.00 and a horse named Billy;
To Lucy Davis, cousin, $500.00;
To Ella Bronde, sister-in-law, $500.00
To Albert Lillie, brother, $1,000.00.
Improved and described real estate, known as Blue Hawk Peak, the home of testator, was devised and personal property, consisting of livestock including a herd of buffalo, farm machinery, and household furnishings, were bequeathed to the Boy Scouts of America on condition of acceptance and maintenance, otherwise the said real estate and personal property to become general assets of the estate, the residue of which was devised and bequeathed to 'beloved sisters' Mrs. Lena Green and Mrs. Effie Judy, share and share alike. By the will, Glenn Lyon was appointed sole executor. The codicil, dated February 21, 1941, appointed Frank Lyon vice-executor.
An attorney for contestant, who had been consulted by testator regarding the devise and bequest to the Boy Scouts of America, made inquiry whether such devise and bequest would be acceptable. The attorney received a letter from New York, dated May 25, 1940, of nonacceptance. The letter of nonacceptance and information relative thereto were transmitted to testator.
It is the contention of appellant that at the time of execution of the will and codicil, the testator lacked testamentary capacity and that fraud and undue influence such as to vitiate the will, were practiced by beneficiaries named in the will, Nellie Ruffner and Mary Barrera, who occupied positions of trust and confidence with testator. It was alleged that fraud practiced by the named beneficiaries extended to a conspiracy in which Glenn Lyon, executor named in the will, participated.
Under such circumstances, this court will examine the entire record and weigh the evidence. In re Creger's Estate, 135 Okl. 77, 274 P. 30, 62 A.L.R. 690; Wood v. Wood, 168 Okl. 198, 32 P.2d 715; McDonald v. Cooke, 186 Okl. 347, 97 P.2d 883. The appellant recognizes that the burden is upon the contestant to prove lack of testamentary capacity, fraud and undue influence, but urges that the general principle of law is subject to a well-recognized exception stated in Myers v. Myers, 130 Okl. 184, 266 P. 452. The exception relied upon is that where persons, occupying a confidential relation to testator, assist in preparation of the will, are beneficiaries named in the will, and receive benefits to which they would not be entitled under the law, the presumption of undue influence arises which calls for a careful scrutiny by the court and the burden is upon proponents to show the absence of undue influence. In Myers v. Myers, supra, the statement of exception to the general rule was mentioned and said to be quite generally established; the exception stated was not applied in that case but the decisive rule of law justifying reversal and probate of the will was that undue influence such as will invalidate a will is that which, in effect, substitutes the will of others or another for the will of testator and that the presence of beneficiaries and the fact of their confidential relation with testator at the time of execution of the will constitutes a mere general influence which, if not shown to bear upon the testamentary act, is not undue influence such as to defeat a will. In re Cook's Estate, 71 Okl. 94, 175 P. 507, and In re Chopper's Estate, 112 Okl. 25, 239 P. 592, state the general rule.
The evidence discloses that the testator had been a resident of Pawnee for more than fifty years. Prior to 1913, he was actively engaged in the show business. In 1936 testator and his wife were injured in an automobile accident, as a result of which his wife, Mary Lillie, died and testator suffered a traumatic psychosis from which he showed a considerable degree of recovery but retained some disability attributable to age and the accident. Mary Barrera and Nellie Ruffner, beneficiaries under the will, and Glenn Lyon, named executor, were present at Cleveland, Oklahoma, when the will was executed. Mary Barrera, from 1939, acted as testator's secretary and bookkeeper. She had authority to write checks and collect accounts. She is shown to have made notes of testator's will in May, 1940. She and Nellie Ruffner were present at the reading of drafts of the will. Nellie Ruffner served testator from 1937 as chauffeur and maid.
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