Kuehn v. Kuehn

• Decision Date: 07 June 1960
• Citation: 104 N.W.2d 138,11 Wis.2d 15
• Parties: Elmer KUEHN, by John G. Nestingen, Conservator, Plaintiff-Respondent, v. Neva KUEHN, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 138

104 N.W.2d 138

11 Wis.2d 15

Elmer KUEHN, by John G. Nestingen, Conservator, Plaintiff-Respondent, v. Neva KUEHN, Defendant-Appellant.

Supreme Court of Wisconsin.

June 7, 1960.

Wheeler, Van Sickle, Day & Goodman, Madison, C. L. Gaylord, River Falls, for appellant.

Doar & Knowles, New Richmond, for respondent.

HALLOWS, Justice.

Three issues are presented: 1. Were the findings of the trial court of undue influence contrary to the great weight and clear preponderance of the evidence? Were the findings based upon a misconception of the law relating to the burden and degree of proof? 3. Should a new trial be granted in the interest of justice because of certain incidents occurring during the trial involving the jury, even though the verdict was only advisory?

This case is unusual in that the donor, or transferor, is seeking to recover, whereas in most undue influence cases involving inter vivos gifts or testamentary gifts recovery is sought by someone other than the donor. However, the same rules of law apply, and have been discussed in many decisions, most recently in Re Will of Freitag, 1960, 9 Wis.2d 315, 101 N.W.2d 108; In re Estate of Larsen, 1959, 7 Wis.2d 263, 96 N.W.2d 489, and In re Estate of Fillar, 1960, 10 Wis.2d 141, 102 N.W.2d 210. As we stated in the Freitag case, in order to establish undue influence four elements must be proved (9 Wis.2d at page 317, 101 N.W.2d at page 109):

'Stated in capsule form these are: Susceptibility, opportunity to influence, disposition to influence, and coveted result; stated more completely: 1. A person who is susceptible of being unduly influenced by the person charged with exercising undue influence; 2. the opportunity of the person charged to exercise such influence on the susceptible person to procure the improper favor; 3. a disposition on the part of the party charged, to influence unduly such susceptible person for the purpose of procuring an improper favor either for himself or another; 4. a result caused by or the effect of such undue influence.'

On appeal this court will not retry the controversy. Its duty is to determine whether the trial court's findings are so erroneous as to be contrary to the great weight and clear preponderance of the evidence. See Weber v. Kole, 1959, 7 Wis.2d 107, 95 N.W.2d 784, where this court said this principle has been stated in almost every volume of Wisconsin Reports. This requires an examination of the evidence, not to determine whether this court might have reached a different decision, but whether there is sufficient credible evidence to support the findings. The trial court found the four elements or ultimate facts of undue influence were established by clear, convincing, and satisfactory evidence which is a correct statement of the burden of proof in an undue-influence case. Upon examination of the record we are satisfied that none of the essential findings is contrary to the great weight and clear preponderance of the evidence.

Evidence Supporting the Findings of Undue Influence.

The evidence shows that the plaintiff was a person unquestionably susceptible to undue influence. He was approximately sixty-two years of age with an IQ of 88 which a psychologist testified was equivalent to that of an average boy of twelve or thirteen years in ability to grasp ideas. He had a quiet, pleasant, trusting personality. He completed only the first year of high school and was not inclined to associate with other people, never married, did not own or drive an automobile, seldom left the farm, and had no business experience. His brother, Herbert, conducted all his business affairs, took care of his checks, investments, and bank accounts and paid his bills, and after Herbert's death the defendant took over these duties. The defendant claims Elmer is not incompetent, was frugal, a good farmer and sometimes argued with her about how the farming operations should be carried on. The evidence shows that Elmer did not understand the transactions involved and was susceptible to undue influence, at least in these matters about which he was unfamiliar and by a person whom he trusted.

There is no question Neva had the opportunity to exercise undue influence on Elmer. They lived on the same farm, saw each other almost daily, and Neva handled the business affairs of Elmer. It is not necessary that opportunity be grounded in secrecy or that undue influence should culminate in one act such as often constitutes duress. As stated in Ball v. Boston, 1913, 153 Wis. 27, 35, 141 N.W. 8, 11, in referring to undue influence:

'It is, really, one of the most reprehensible of deceits because of the cunning, insidiousness, and artifices of seduction, which, in general, characterize it and by means of which the unsuspecting victim is rendered powerless to carry out his own wishes * * *.'

On the third element of the defendant's disposition to influence the plaintiff unduly, the evidence is equally strong. Perhaps it was natural for the defendant, even though married in middle age and after approximately five years of married life, to expect to inherit all of her husband's property. Herbert apparently did not so intend. After the marriage Herbert transferred his interest in the farm and other personal property to Neva. On his death bed he made a will leaving all his property to her. But there is no evidence he ever intended to sever the joint tenancy with his brother. The defendant on several occasions told Elmer she was entitled to her husband's interest in the property held jointly with Elmer. Perhaps she had a moral right to this property, and there is some testimony she not only claimed she ought to have the property, but told Elmer it was hers. However justified the defendant's belief, the end does not justify the means. We are concerned with the means employed by the defendant to carry out her admitted belief.

In transferring this property, Neva took the active and guiding part. She arranged with a banker beforehand for the redemption of the United States bonds and then brought Elmer to the bank. Some $38,000 of Series E bonds were cashed, and Elmer signed an assignment of half of these bonds to the defendant. The receipt which Elmer received for the bonds did not contain this assignment. When the checks for the bonds were received, Neva again took Elmer to the bank where he endorsed the checks in blank. The proceeds were reinvested partly in Series H bonds and partly in two-percent certificates of deposit and as a result Neva received half of the total amount in her own name and the other half jointly with Elmer. Neva not only obtained that which had been her husband's, but more. Before the trial Elmer had recovered the property held in joint tenancy with Neva.

In the transaction which took place at the Spring Valley Bank the balance of the savings account which Elmer had acquired from Herbert was withdrawn and used, together with some cash of Neva's, to buy $4,000 in bonds in Neva's name only. At the same time $6,000 was withdrawn from Elmer's savings account and $6,000 in Series H bonds was obtained jointly in the names of Elmer and Neva. This property was also recovered before trial, so that the net amount found by the trial court to be recoverable on this item was $169.21. The defendant had an attorney (not the one representing her in the trial or on appeal) prepare assignments for the promissory notes and mortgages. Elmer was told by Neva to go to the lawyer's office and sign some papers which he did, thereby transferring a half interest to Neva. Neva paid the attorney for his services. In handling Elmer's affairs, Neva requested from mortgagee, Moldenhauer, the balance due on a note. This was paid by check to the defendant who endorsed it, cashed it, and gave half to Elmer. In the case of another note identified as the Timm note and mortgage, Elmer received a check for $4,300 in Neva's presence and satisfied the mortgage. Neva marked the note paid and the next day took Elmer to the bank where the check was cashed and Neva received half thereof. There is evidence tending to show the defendant bossed Elmer in the operation of the farm, accused Elmer's sister and her husband of stealing things when they visited Elmer's mother, and was an aggressive, domineering, and grasping woman.

The defendant argues that the evidence is not clear, satisfactory, and convincing because Elmer could not remember or express the words or acts Neva used to influence him to make the transfers, that he had opportunity for independent advice, and that Elmer's criticism of her conduct toward him after the transfers showed he was merely dissatisfied with the gifts which he had made. While this is some evidence in support of the defendant's position, it is not sufficient. Moreover, Neva in handling Elmer's affairs stood in the relationship of confidence and trust which raises the presumption that the conveyances were induced by undue influence. See Quinn v. Quinn, 1907, 130 Wis. 548, 110 N.W. 488, and the cases discussed in Ball v. Boston, supra. The rule as stated in Restatement, 2 Contracts, p. 954, sec. 497, follows.

'Where one party is under the domination of another, or by virtue of the relation between then is justified in assuming that the other party will not act in a manner inconsistent with his welfare, a transaction induced by unfair persuasion of the latter, is induced by undue influence and is voidable.'

The transfers appear to be the effect of undue influence. We cannot say that Elmer would have accomplished an unnatural result if he had willingly and knowingly transferred this property to the defendant because of his attachment for his epileptic niece, or because he thought Herbert should have transferred his interest in the jointly-owned property to Neva. However, there is no testimony that Elmer was so motivated. Neither was it wrong for Neva to advance to Elmer the arguments she could why her husband ought to have transferred the...