In re Miller's Estate

• Citation: 88 P. 338,31 Utah 415
• Decision Date: 22 December 1906
• Docket Number: 1754
• Parties: IN re MILLER'S ESTATE; v. LIVINGSTONE MILLER et al.
• Court: Utah Supreme Court

88 P. 338

31 Utah 415

IN re MILLER'S ESTATE;

MILLER et al. v. LIVINGSTONE

No. 1754

Supreme Court of Utah

December 22, 1906

APPEAL from District Court, Third District; C. W. Morse, Judge.

Action by Margaret Miller and others against Elizabeth Livingston as administratrix of Margaret Miller, deceased, and individually. From a judgment for defendant, plaintiffs appeal.

REVERSED, AND NEW TRIAL GRANTED.

James D. Pardee for appellants.

A circumstance to be considered was the confidential relation existing between the testator and devisee, and also the unnaturalness and injustice of disinheriting his children whom he loved and always calculated to provide for. Such circumstances and others that appear from the testimony throw the burden upon the proponents. (29 Am. and Eng. Ency of Law, 113, 114; Underhill on Wills, par. 137; Dalfield v. Parish, 25 N.Y. 35; Bush v. Delano, 71, N.W. [Mich.] 629; England v. Fawbush, 204 Ill. 384.)

"That if a party writes or prepares a will under which he takes a benefit, that is a circumstance which generally ought to excite the suspicion of the court, and calls upon it to be vigorous and zealous in examining the evidence in support of the will, in favor of which it ought not to pronounce unless the suspicion is removed and it is judicially satisfied that the paper propounded does express the true will of the deceased." To the same effect are the following cases: In the Matter of the Will of Smith, 95 N.Y. 216, 523; Hughes v. Meredith, 24 Ga. 325; Montague v. Allen's Executors, 78 Va. 592; Coffin v. Coffin, 23 N.Y. 9; Cuthbertson's Appeal, 97 Pa. State 163; Marx v. McGlin, 88 N.Y. 358; Yeardley v. Cuthbertson, 108 Pa. State 395, 457; Lynch v. Clements, 24 N.J. Eq. 431, 435; Gay v. Gillian, 92 Mo. 250; Hartman v. Strickler, 82 Va. 225, 227, 238; Crystal v. Dubois, 4th Barber 393, 398; Tyler v. Gardner, 25 N.Y. 559; Lee v. Dill, 11 Abbott's Practice 214; Lake v. Ranney, 33 Barb. 49; Bergen v. Udall, 31 Barb. 9, 25; Burt v. Nolan, 1 Dem. 436; Matter of Western, 60 Hun 298; Harvey v. Sutters, 46 Mo. 147; McLaughlin v. McDevitt, 63 N.Y. 213; Brick v. Brick, 66 N.Y. 144.

The declarations and admissions of a sole devisee under a will are competent evidence. (29 Am. and Eng. Ency of Law 119; Underhill, par. 163; Samuels' Appeal, 54 Conn. 108; Morse v. Stokes, 21 Ga. 552; Wilbur v. Wilbur, 138 Ill. 436; Horne v. Pullman, 10 Hun 471; Crocker v. Chase's Estate, 57 Vermont 413; Gordon v. Burris, 141 Mo. 602.)

The court erred in sustaining the objection to question 15 asked of Mrs. McIntosh, as set out in assignment 12. The question was, "State all you know as to what Mr. Miller said about providing for his children after his death." This question was competent and material and shows what Mr. Miller's intentions were about providing for his children in his will and as showing what his state of mind was when the will was executed, for the reason that the declarations of a testator made before or after the execution of his will are admissible to prove undue influence or to show the condition of his mind. (Underhill, par. 161; 29 Am. and Eng. Ency. of Law, 117, 118, 119; Matter of Calkins, 112 Cal. 296; Waterman v. Whitney, 11 N.Y. 157; Shailer v. Burnstead, 99 Mass. 112; Haynes v. Haydn, 95 Mich. 332; Hayes v. West, 37 Ind. 21; Middledich v. Williams, 45 N.J. Eq. 726; Bates v. Bates, 27 Iowa 111; Roberts v. Bidwell, 98 N.W. 1000; Revard v. Revard, 109 Mich. 98; Hayes v. West, 37 Ind. 21; Mallory v. Young, 94 Ga. 804; Cochran v. Cochran, 17 Ill.App. 604; In re'Clark, 40 Hun 233; Canada's Appeal 47 Conn. 450; Mooney v. Olson, 22 Kas. 69; Baylen v. Muker, 28 N. J. Law 274.) Declarations of testator made after will and while under no influence, are admissible for the purpose of showing undue influence. (Cogheld v. Kennedy, 24 S. R. 452; Ball v. Cain, 39 A. 778; Moore v. Gibbons, 54 Ill. Appeal, 163; Primer v. Primer, 75 Iowa 415; Bush v. Delano, 71 N.W. R. The Estate of Goldthrope, 58 Am. St. 400. Underhill, par. 61, and cases cited in note on page 227.)

Andrew Howat and Hurd & Hurd. for respondent.

RESPONDENT'S POINTS.

The term "legal representative," or "personal representative," in the commonly accepted sense, means the administrator or executor of a deceased person, but this is not the only definition. It may mean heirs, next of kin, or descendants, and sometimes, assignee, or grantee. (Warnecke v. Lembca, 71 Ill. 91; Davis v. Davis, 26 Cal. 23; Davies v. Davies [Conn.], 11 At. 500; Greenwood v. Holbrook [N.Y.], 18 N.E. 711; Griswold v. Sawyer [N.Y.], 26 N.E. 464, 465.) Both Mr. and Mrs. Miller were dead and the conversations and transactions about which the witnesses were interrogated were with Mr. and Mrs. Miller, as to facts equally within the knowledge of the witnesses and the deceased persons with whom it was desired to show the conversations and transactions were had. It was to prevent such testimony that the statute was enacted, and the questions and answers not only fell within the spirit, but within the letter of the statute forbidding such testimony. (In re Atwood's Estate, 14 Utah 1; Hennefer v. Hayes, 14 Utah 324; Whitney v. Fox, 8 Utah 380; Whitney v. Fox, 166 U.S. 637, 644.) The doctrine that an act between parties will be scrutinized and that the burden of proof is upon the party seeking to sustain it, where the relations between the parties are of a confidential nature, does not apply to the making of wills where the parties are husband and wife, father and child. (Tyson v. Tyson, 37 Md. 567; Bulger v. Ross, 98 Ala. 267; Mason v. Williams, 6 N.Y.S. 479; Appeal of Dale, 57 Conn. 127.)

STRAUP, J. FRICK, J., concurring. McCARTY, C. J., concurring in part and dissenting in part.

OPINION

STRAUP, J.

1. This is an action brought to revoke a will alleged to have been executed by Thomas Miller, deceased, under undue influence. Mr. Miller was married twice. He lived with his first wife in Scotland and in New York, by whom he had five children. His wife died in 1885. In the same year he married his second wife, Margaret Miller, who theretofore had been an acquaintance of his in Scotland, and who, at the time of the marriage, was a resident of Utah where she lived with a former husband, but from whom she was divorced just prior to her marriage with Miller. Mr. Miller and his second wife lived together a short time in New York and then moved to Salt Lake City, Utah. Mr. Miller's children, who were then of age, remained in New York. Soon after arriving at Salt Lake City he invested about $ 4,000 in a silk factory but lost most of his investment. He then engaged in the business of a brass foundryman, his usual occupation in which he prospered and made considerable money. In 1890, when he was about 65 years of age, he made the will in question, devising and bequeathing all his property, then worth about $ 3,000 in value, to his wife. He died in September, 1901. He was then worth from $ 17,000 to $ 30,000. All his property went to his wife under the will. His wife, Margaret Miller, died March 10, 1904, leaving Elizabeth Livingston, a sister her only heir at law. The will was not admitted to probate until May 20, 1904. Elizabeth Livingston was then appointed administratrix of his estate with the will annexed. On May 6, 1905, Miss Margaret Miller, a daughter of Thomas Miller, deceased, on her behalf and on behalf of the other heirs of Thomas Miller, filed a complaint in the Third judicial district court in and for the county of Salt Lake to revoke the will, alleging, among other things, that at the time of its execution, Thomas Miller was "acting under duress, restraint, and undue influence, and fraudulent representations in this: that in his younger days he had formed an uncontrollable attachment with and for the person named as his wife in the will presented for probate to such an extent that he deserted his family in Scotland, where he was then living, and came to New York state, where his family soon followed him, and he was compelled to support them and leave said devisee; also that, after a time, the wife of said Thomas Miller, now deceased, died, he deserted his children and came to Utah with the said person named as devisee in said will and afterwards married her, or attempted to do so, at the solicitation and under the influence of said devisee, and has ever since been under her influence and restraint. And further, that, under the undue influence, duress, and restraint of such person, said decedent was induced and compelled to make the said will against his own wishes, desires, and intentions, as petitioner is informed and believes; and further, that misrepresentations were made to said decedent, to get him to make and sign said will heretofore probated, that his said children had received their share or portion of his estate at the time of his first wife's death, and had received a portion of the property owned by their mother and in that way had received their full proportion and right to any interest in his said estate as heirs or otherwise, and said devisee had so worked upon the mind of the decedent by telling him that his children cared nothing for him, that they only desired to receive his property, and by other false and fraudulent representations the devisee so influenced the mind of the decedent against his children that he cut them off as heirs to his estate in said will described, and by these means and other inducements, undue influence, and coercion, said decedent was influenced to sign said will and to give, bequeath, and devise all his estate to said devisee and away from his children and against his real intentions." On August 28, 1905, Elizabeth Livingston, as administratrix of the estate of Thomas Miller with the will annexed, answered the complaint denying all the...