Lea's Estate, In re

• Decision Date: 20 September 1974
• Docket Number: No. 43981,43981
• Citation: 222 N.W.2d 92,301 Minn. 253
• Parties: In re ESTATE of Herbert W. LEA, Decedent. WINONA NATIONAL AND SAVINGS BANK, Executor of the Estate of Herbert W. Lea, Deceased, proponent, Appellant, v. Frank A. SHEEHAN, Jr., contestant, Respondent.
• Court: Minnesota Supreme Court

Page 92

222 N.W.2d 92

301 Minn. 253

In re ESTATE of Herbert W. LEA, Decedent WINONA NATIONAL AND SAVINGS BANK, Executor of the Estate of Herbert W. Lea, Deceased, proponent, Appellant, v.Frank A. SHEEHAN, Jr., contestant, Respondent.

No. 43981.

Supreme Court of Minnesota.

Sept. 20, 1974.

Syllabus by the Court

1.In a will contest, a party or person interested in the event thereof may testify as to conversations with a person since deceased for the sole and limited purpose of laying a foundation for the giving of an opinion as to whether the decedent was mentally competent.

2.The admission or use of otherwise inadmissible testimony in a trial to the court is harmless error if the evidence is cumulative and there is other competent evidence in the case sufficient to justify the findings.

3.After giving due regard to the opportunity of the trial court to judge the credibility of witnesses and considering the entire evidence in this case, there is no justification for this court's interference either on the basis of lack of evidentiary support or because of a conviction that a mistake has been committed.

Briggs & Morgan, Leonard J. Keyes, and John R. Kenefick, St. Paul, for appellant.

Peterson, Delano & Thompson, Winona, Gray, Plant, Mooty & Anderson, Robert L. Helland, and Richard A. Bowman, Minneapolis, for respondent.

Heard before KNUTSON, C.J., and KELLY, MacLAUGHLIN, and MULALLY, JJ., and considered and decided by the court en banc.

EDWARD D. MULALLY, Justice.^*

This is an appeal from an order denying a new trial in a will contest.The trial court found that the testator did not have sufficient testamentary capacity to execute a valid will.We affirm.

Testator, Herbert W. Lea, was born in 1878 and died in 1969 at the age of 91.He lived all of his life in and about Winona, Minnesota.By order dated January 16, 1970, the probate court of Winona County admitted to probate his will dated September 30, 1960.Winona National and Savings Bank was appointed executor by the same order.

A nephew, Frank A. Sheehan, Jr., (hereinafter referred to as Frank) appealed to the district court from that portion of the order admitting the will to probate.Frank and his brother, John M. Sheehan, also commenced an action in district court requesting specific performance of a contract to make a will and an adjudication that they were the rightful owners of half of testator's estate.Defendants in that action were Winona National and Savings Bank and four of the beneficiaries under the will that had been admitted to probate.The two actions were consolidated for trial.

The trial court made findings of fact, conclusions of law, and order for judgment in which it concluded that on September 30, 1960, testator lacked testamentary capacity and that the will bearing that date was not valid and not entitled to probate.The court further concluded that testator had not entered into a contract to leave any portion of his estate to Frank and John Sheehan.

Winona National and Savings Bank, as executor, appealed to this court from the order of the trial court denying its motion for a new trial.Frank and John Sheehan appealed the court's ruling in their specific performance action.The latter appeal was subsequently dismissed in this court.

At the time of his death, testator's gross estate amounted to $692,000 and was comprised entirely of personal property.He had never married.Testator's closest relatives were a sister, Beulah Sheehan, who predeceased him, and a brother, Fred P. Lea, who survived him.He was also survived by nephews, Frank and John Sheehan, sons of Beulah, and Herbert F. Lea and Patricia Lea Hicks, children of Fred Lea.Certain other nephews and nieces were not named in the will and are not parties to these proceedings.

Between 1942 and September 30, 1960, testator executed a total of 15 wills and 2 codicils.In all, except the September 30, 1960, will, testator's sister, Beulah, and his brother, Fred, each received comparatively equal outright bequests or amounts placed in trust for their benefit; they equally divided the residue of the estate; and upon their death their shares were to be divided equally among their respective children.This division of the remainder continued until the September 8, 1958, will which gave two-thirds to John Sheehan and one-third to Frank.This unequal treatment of the remainder was carried forward in the will dated January 8, 1960.The will of September 30, 1960, made no bequests outright to either Beulah or Fred; the residue of Lea's estate was to be divided into a one-sixth trust for Beulah and a five-sixths trust for Fred; the remainder on Beulah's death was to go to John Sheehan; and the remainder on Fred's death was to be divided in thirds between his wife, his daughter, and son.

The will in dispute was executed on September 30, 1960, in the presence of Harold J. Libera, the attorney who had drafted the will, and Libera's wife, Rosemary.Libera had drafted and witnessed for Lea the two wills which immediately preceded this one.

Lea was 82 at the time of the execution of this will.On March 13, 1961, he voluntarily placed himself under guardianship.In 1964 or 1965, he left his home and was finally placed in St. Anne Hospice, where he died on July 29, 1969.

1.The ultimate issue in this matter is whether or not Herbert W. Lea had the requisite testamentary capacity at the time he executed the will dated September 30, 1960.During the trial there was considerable testimony by both lay and expert witnesses as to testator's testamentary capacity at that time.Frank was a witness in his own behalf and, over the objection of appellant, was permitted to testify as to conversations he had with testator.Ostensibly, such testimony was offered and admitted in the will contest as foundation for Frank's opinion as to testator's testamentary capacity on September 30, 1960.Appellant objected on the basis of the so-called Dead Man's Statute, Minn.St. 595.04, ¹ and contends that in determining the issue of testamentary capacity, the trial court, while disclaiming the use of this testimony except as foundation, erred in that it in fact, in violation of the statute, based its conclusions of law on findings of fact that gave substantive effect to or used as direct evidence of testamentary capacity the testimony of Frank relating to conversations between himself and testator.

It is clear since In re Estate of Eklund, 233 Minn. 519, 521, 47 N.W.2d 422, 424(1951), that in a will contest a party or person interested in the event thereof may testify as to conversations with a person since deceased 'for the sole and limited purpose of laying a foundation for the giving of an opinion as to whether the decedent was mentally competent.In other words, the exception is not for the purpose of laying a foundation for the drawing of inferences as to decedent's mental attitude or condition generally, but only to show decedent's mental condition as to insanity or mental weakness.'

In recent years, dead man's statutes have been the subject of severe criticism.2 Wigmore, Evidence (3 ed.) § 578;Morgan, Some Problems of Proof Under the Anglo-American System of Litigation, p. 187;McCormick, Law of Evidence(2 ed.), § 65; Ladd, Admission of Evidence Against Estates of Deceased Persons, 19 IowaL.Rev. 521;Maguire, Witnesses--Suppression of Testimony by Reason of Death, 6 Am.U.L.Rev. 1;Harper, The 'Dead Man' Rule, 6 MercerL.Rev. 249; A.L.I., Model Code of Evidence, Rule 101; Uniform Rules of Evidence, Rule 7.The Federal Rules of Evidence, Rule 601, completely rejects the principle of the dead man's statutes.The comment to Rule 601 states:

'The Dead Man's Acts are surviving traces of the common law disqualification of parties and interested persons.They exist in variety too great to convey conviction of their wisdom and effectiveness.These rules contain no provision of this kind.'

An effective summary of the case against the statutes appears in Ray, Dead Man's Statutes, 24 OhioSt.L.J. 89.²

This court in turn urges that the Minnesota Legislature give serious consideration to the repeal of Minn.St. 595.04.

Undesirable though it may be, § 595.04 is still the law of this state, and it must be construed so as to carry out the full intent of the legislature.This is so even though it 'may produce a statutory rule of evidence that is strict and of which judges and text writers may disapprove.'Pomerenke v. Farmers Life Ins. Co., 228 Minn. 256, 263, 36 N.W.2d 703, 707(1949);In re Estate of Eklund, Supra;Caldis v. Curtis Hotel Co., 255 Minn. 98, 95 N.W.2d 641(1959);Engel v. Starry, 268 Minn. 252, 128 N.W.2d 874(1964).

2.The substance of certain of the trial court's findings of fact which are supportive of its conclusions of law seemingly was derived directly or inferentially from the testimony of Frank relating to acts of the testator which he observed and to conversations between himself and testator.³The testimony as to conversations was purportedly given and received for the sole purpose of laying a foundation for Frank's ultimate opinion as to testator's mental capacity.However, it appears that the court then used this testimony in conjunction with other evidence as either substantive or direct evidence of mental capacity.This was error requiring a new trial unless other like evidence which the court could properly consider can be found to support that portion of the trial court's findings.Frank contends that the court's findings are supported by the testimony of disinterested persons, particularly by the testimony of Ruth Sheehan, Frank's wife.Frank asserts that Ruth is not an interested person for purposes of the Dead Man's Statute.With this, we agree.It is well settled that the husband or wife...