Lavelle's Estate, In re

• Decision Date: 11 September 1952
• Docket Number: No. 7718,7718
• Citation: Lavelle's Estate, In re, 248 P.2d 372, 122 Utah 253 (Utah 1952)
• Parties: In re LAVELLE'S ESTATE. IMMERTHAL, v. FIRST SECURITY BANK OF UTAH et al.
• Court: Utah Supreme Court

Page 372

248 P.2d 372

122 Utah 253

In re LAVELLE'S ESTATE IMMERTHAL, v. FIRST SECURITY BANK OF UTAH et al.

No. 7718.

Supreme Court of Utah.

Sept. 11, 1952.

Lewis J. Wallace, M. Blaine Peterson, Ogden, for appellant.

Samuel C. Powell, Howell, Stine & Olmstead, Dobbs & Dobbs, Ogden, Louis Kabell, Jr., Evanston, Wyo., for respondent.

CROCKETT, Justice.

Mrs. Lucille Lavelle, a widow having no children, died leaving three testamentary instruments, each of which revokes any former wills. The proponents of each contest the validity of the others.

The first of these wills, made April 28, 1944, left the decedent's property to her husband, John T. Lavelle, and her half-sister, Kathleen Miller. Thereafter her husband died, and according to the will provisions the entire estate would have gone to Mrs. Miller.

Mrs. Lavelle's second will was signed July 28, 1948, leaving her home and furniture, the greater part of her estate, to a cousin, Marie Dodge, and making several bequests of personal property to relatives and friends, with the residue to Anna Barry, a sister of her deceased husband, but expressly disinheriting her half-sister, Kathleen Miller.

The third and last of the wills was executed July 21, 1949. It noted an intentional omission of all of Mrs. Lavell's relatives or any other possible heirs and gave the estate to her 'very good friend and benefactor Eric W. Immerthal' and her 'devoted friend and benefactor Monte G. Hogg,' one-half to each.

The lower court admitted the second will to probate, rejecting the third on the ground that it had been induced by undue influence upon the testatrix by Immerthal and Hogg.

This appeal is by Immerthal. He challenges the sufficiency of the evidence to sustain the court's finding of undue influence. No issue is raised as to the proper execution of the will nor as to decedent's testamentary capacity to make it.

A procedural point is considered first: Marie Dodge, respondent, contends that appellant failed to properly show in his brief, by reference to the record, wherein the evidence does not support the trial court's finding of undue influence and therefore the appeal must be considered as being prosecuted solely upon the judgment roll, citing U. S. Building and Loan Ass'n v. Midvale Home Finance Corp., ¹ in which the court stated:

'It is not pointed out in the unit holders' [cross-appellant's] brief or elsewhere wherein the the evidence does not support the questioned findings, nor wherein the evidence touching such findings may be found in the transcript. Under such circumstances the appeal * * * must be regarded as being prosecuted solely upon the judgment roll.'

In his original brief appellant contented himself with more or less general statements that the evidence did not support the finding of undue influence, maintaining that Immerthal and Hogg were not 'anywhere around' when the will was drafted or executed and that '* * * there is not a shred of evidence relating to undue influence on the part of Eric W. Immerthal or Monte G. Hogg relating to the execution of the third and last will. * * *'

The sketchiness of appellant's brief in this regard is excused in some degree by the difficulties inherent in attempting to point out specifically wherein there is 'no evidence' to support a given finding. An appellant cannot be asked to go through the transcript, showing how the testimony reported on each page does not support the finding. Yet, insofar as is practicable, he must detail, with citation to the record where appropriate, the particulars wherein the evidence touching the finding is inconsistent therewith or is not of enough moment to sustain it. ² In other words, it was the appellant's responsibility to show in his brief that the third will was not the result of the exercise of undue influence.

Respondents' brief treated the evidence and segregated it into numerous classifications all of which they say tend to show undue influence.

Rule 75(p)(2), U.R.C.P., states:

'The reply brief * * * shall be limited to answering any new matter set forth in respondent's brief * * *.'

In accordance with this rule, appellant made a rather thorough reply to contentions of respondents concerning the evidence. Viewing the whole matter as presented, we believe that appellant substantially met the requirements of the rule above quoted from U. S. Building & Loan Association v. Midvale Home Finance Corporation. Hence we examine the entire record and consider the merits of the appeal.

The contest over the validity of a will is an action at law, rather than in equity. ³ Consequently, the decision of the lower court cannot be overturned if there is any substantial evidence to support it. ⁴

To declare a will invalid because of undue influence, there must be an exhibition of more than influence or suggestion, there must be substantial proof of an overpowering of the testator's volition at the time the will was made, to the extent he is impelled to do that which he would not have done ⁵ had he been free from such controlling influence, ⁶ so that the will represents the desire of the person exercising the influence rather than that of the testator. ⁷ This showing need not be based on proof of physical coercion or constraint. ⁸

However, as this court has heretofore held, mere opportunity, interest, ⁹ confidential relation ¹⁰ or weakened physical condition of testator ¹¹ yield no presumption of undue influence. These factors or combinations of them do provide fertile ground for the exercise of such influence; and where they exist, the court is under a duty to carefully scrutinize the facts and circumstances relating to the execution of the will in question. ¹²

From May of 1947 until her death in July of 1950, Mrs. Lavelle was a bedridden invalid, paralyzed on her left side by a series of strokes, and suffering from certain kidney and urinary disorders. Her closest relatives lived out of the state; so, except for the first six weeks after the onset of her illness, when her half-sister, Kathleen Miller, was with her, she had to be cared for entirely by hired personnel. Though Mrs. Miller was legal guardian of the invalid from August, 1947 to May, 1948, the responsibility of seeing to the decedent's wants devolved largely upon Eric W. Immerthal, a succession of over twenty housekeepers and nurses, and W. H. Loos, trust officer for the First Security Bank of Utah, which for a time administered a trust for Mrs. Lavelle and later became guardian of her estate.

Immerthal is a male nurse and masseur, who visited Mrs. Lavelle almost daily in the course of his professional responsibilities to her. With the passage of time he took more and more interest in her welfare and assumed greater responsibility for the well-being of his patient. He helped find replacements for the nurses and housekeepers, who were quitting with regular frequency because of the long hours and onerous duties involved in caring for this woman, who was periodically unable to control her body eliminations. It was from this association and service to testatrix by Immerthal that the supposed undue influence on his part resulted.

Mr. Hogg and Mrs. Lavelle became acquainted before her stroke when he was employed by her as a carpenter to transform part of her home into rental rooms. Later he moved into the home, forming with her an attachment, seemingly of great warmth, and as the court found, sustained an illicit relationship. Even so, the existence of such relationship, while it is a circumstance to be considered, is not in and of itself sufficient to support a finding of undue influence. Their illicit relationship was undoubtedly one of the factors which induced the affection. Mrs. Lavelle had for Hogg. Nevertheless, the evidence is quite convincing that her affection for him was genuine; she spoke of their plans for marriage, referred to him as her future husband, and seemed really upset when he absented himself from her presence for a period of time. She gave him sums of money, some rather large, and items of personal property during her lifetime. Respondents urge that this supports their contention of undue influence; but to the contrary, the fact that they were given, and over a considerable period of time, is strong indication of the constancy of her affection and regard for him and corroborates the idea that she wanted to make provision for him in her will. Where the affection and desire of a testatrix is genuine, it matters not that the illicit relationship may have played a part in inducing it. ¹³

Conceding the impropriety of their intimacy and also remembering that the motives of a man who formed such a liason with a partially paralyzed woman older than himself (she was almost 60, he in his early 50's) certainly would be suspect, yet those circumstances alone, which in the main form the basis of the respondents' case as to Hogg, do not support a finding of undue influence with respect to the making of the will.

It should be here observed that the lower court did not find that Hogg and Immerthal acted in concert, the only evidence on the point being to the contrary. Reports of Hogg's immoral association with Mrs. Lavelle were made by Immerthal and his wife to Mr. Loos, the trust officer. When it was found necessary to take Mrs. Lavelle to a rest home, Immerthal indulged in a stratagem to lure Hogg out of the car, drove off without him and made efforts to keep her location a secret from him.

As to Immerthal, there also is no direct evidence of undue influence. It is true that he interested himself in the management of Mrs. Lavelle's personal affairs (in January of 1950, after the execution of the third will, he became guardian of her person). In view of the fact that none of her relatives manifested such interest, this seems to have been a fortunate circumstance for her welfare. He helped to arrange for her care when she stayed at home, by artifice managed to get around her resistance to entering...