Murphy's Estate, In re

• Decision Date: 06 November 1964
• Docket Number: No. 39054--5,39054--5
• Parties: In re ESTATE of Elizabeth Cecilia MURPHY, a.k.a. Bess C. Murphy and Bessie C. Murphy, deceased. Gordon F. O'KEEFE et al., proponents, Appellants, v. George F. MURPHY, objector, Respondent, Thomas E. Murphy et al., objectors, Respondents.
• Court: Minnesota Supreme Court

Page 220

131 N.W.2d 220

269 Minn. 393

In re ESTATE of Elizabeth Cecilia MURPHY, a.k.a. Bess C.

Murphy and Bessie C. Murphy, deceased.

Gordon F. O'KEEFE et al., proponents, Appellants, v. George F. MURPHY, objector, Respondent, Thomas E. Murphy et al., objectors, Respondents.

No. 39054--5.

Supreme Court of Minnesota.

Nov. 6, 1964.

Syllabus by the Court

1. The minimal essentials required for due execution of an instrument offered as a will are that the testator sign the instrument in the presence of the witnesses or declare to each that the signature appearing was made by him, and that the witnesses attest such signature by signing the instrument in the presence of the testator.

2. Rule 39.02, Rules of Civil Procedure, authorizes an advisory jury in a will contest case, but Rule 52.01 vests final responsibility in the court to find the facts. Where the verdict of an advisory jury is adopted by the court as its own, it must appear that the court has independently resolved critical conflicts in the evidence by findings which are responsive to the disputed facts; otherwise the procedure directly conflicts with the rules which give binding effect to a verdict of an advisory jury only if the parties consent thereto prior to submission.

Gordon Rosenmeier and John E. Simonett, Little Falls, for appellants.

Ryan, Ryan & Ebert, Donald I. Ryan, Nolan, Alderman & Holden, M. Eleanor Nolan, Brainerd, for respondent.

ROGOSHESKE, Justice.

Appellants are the proponents of an undated instrument offered as the last will of Elizabeth Cecilia Murphy, usually known as Bess or Bessie C. Murphy. The instrument was refused probate and this appeal is from an order of the court denying a motion for amended findings or in the alternative a new trial.

Decedent died on October 13, 1961, at age 74, a retired school teacher and unmarried. She resided in Brainerd and her sister, Helen C. Steiger, called Nell, had lived with her for 20 years. Nell's husband also lived there until his death in 1954. After a confining illness of about a year, Nell died at age 81. Bess' death occurred 4 days later.

Decedent's surviving next of kin are her brother George Murphy, an objector, and the following nieces and nephews: Thomas E. Murphy and Alice Jean Murphy, surviving children of the decedent's brother Edward Murphy, who, with Margaret Kemper, a daughter of decedent's predeceased brother, Joe Murphy, also filed objections; and Gordon, Betty, Donald, James, George, and John O'Keefe, the surviving children of the decedent's sister, Mae Agnes Murphy O'Keefe. The O'Keefe children are the proponent-appellants. They offered the following instrument for probate, which it was claimed was executed by decedent in January or February 1956:

'This House and Store

to you Nell and Betty

or survivor, and

1.00 to Tommy Murphy

1.00 to Jean and

rest divided between

Nell Steiger, and--

okeefe children--

Donald, Gordon--

Geo--Jimmie, Betty--

John--

House at 305 N. 10 st.

Nell and Betty--

Key

'Bessie C. Murphy

Annie L. Carney

Gertrude O'Keefe'

Following a contested hearing, the instrument was admitted by the probate court as decedent's will. The objectors filed two separate appeals from the probate court's order to the district court. After a joint de novo trial, the district court reversed the probate court and disallowed the instrument as decedent's will.

The issues raised before the district court by the objectors were lack of due execution, lack of testamentary capacity, undue influence, and improper alterations of the instrument subsequent to its execution. Following the trial before an advisory jury impaneled pursuant to Rules 39.02 and 52.01, Rules of Civil Procedure, the objectors conceded that the evidence established that decedent possessed testamentary capacity and was not subject to undue influence. Accordingly, those issues were withdrawn. The only two issues submitted and determined by the court were improper alteration and whether or not the instrument was executed in accordance with Minn.St. 525.18, subd. 1, which provides:

'Every person of sound mind, not a minor, may dispose of his estate, or any part thereof, or any right or interest therein, by his last will in writing, signed by him or by some person in his presence and by his express direction, and attested and subscribed in his presence by two or more competent witnesses.'

The evidence is without dispute that the decedent was a strong-minded, intelligent woman who spent her time reading, managing her security investments, and devoting herself to gardening and raising flowers. She seldom left her home and was quiet and frugal and unusually secretive about her business affairs. Only Donald O'Keefe, her nephew who had prepared her income tax returns over a period of 20 years, was aware that she had amassed a substantial estate. All who testified on the matter agreed that an attempt to draft her own will because of her unwillingness to discuss her financial affairs with anyone would be quite in keeping with her character.

Of the two witnesses whose names appear on the instrument, only Gertrude O'Keefe testified. Mrs. Annie L. Carney, a widow, died in the latter part of November 1960. Gertrude O'Keefe is the wife of Gordon O'Keefe, one of the nephews who is named as a beneficiary. She testified that the instrument was executed on a Sunday morning in January or February 1956. Mrs. Carney, who lived in one of the three apartments of the decedent's house and whose apartment was on the first floor adjoining the decedent's apartment, was then 83 years old; Bess was 69 years old; and Nell was 76. Gertrude O'Keefe further testified that at the time the instrument was executed, she was visiting the decedent in her home, which she occasionally did on Sunday mornings during the time when her husband was attending church. Her testimony was explicit that decedent brought the paper from Mrs. Steiger's bedroom and stated that it was a will and she wanted her to read and sign it. Decedent then opened the door to Mrs. Carney's apartment and asked her to join them. While they were having coffee, decedent read the instrument aloud and then she had each witness read it. Thereafter decedent signed it in their presence and the witnesses signed their names in the decedent's presence and in the presence of each other.

All of the testimony submitted by proponents was directed to corroborate the testimony of Mrs. O'Keefe. Included in such testimony was the opinion of an expert in the field of questioned documents, who declared that the signatures of the decedent and Mrs. Carney were genuine. It was also brought out in the proponents' case that following the decedent's funeral Gordon O'Keefe was, by agreement of all the heirs, named as special administrator. He spent a month carefully searching the home for the purpose of gathering together all things of value, as well as to search for a will. Neither Gordon O'Keefe nor any of the decedent's next of kin was ever aware that she had executed a will. He made inquiries of persons who he felt might know whether or not there was a will. Although his wife, Gertrude, recalled the occasion of her signing an instrument about 5 years prior to her husband's search, she did not disclose to him or anyone else, either before or after decedent's death, that decedent had executed what she declared to be her will. Mrs. O'Keefe's explanation for not doing so was that the decedent had enjoined her to secrecy, and notwithstanding her husband's efforts to find a will she kept it secret until November 17, 1961, when the instrument was found in a box under the bed in Nell's room.

An instrument purporting to be the will of Mrs. Steiger was also found in the home in Bess' room. This will, dated in 1960, gave all of her property to Bess. It was admittedly executed improperly because Anne Laipple, a subscribing witness and a tenant in one of the apartments of the home at the time, testified that she signed it at the direction of Bess Murphy when Nell was not pesent to affirm that her signature had been affixed to the instrument.

The objectors' testimony sought to discredit Mrs. O'Keefe's testimony and sought to persuade the court and jury that the instrument written in pencil amounted to no more than a memorandum of an intention to make a will. They contend that it was not treated by the decedent as a testamentary disposition, relying upon testimony and evidence to the effect that it was not found among her possessions and was apparently kept under Nell's bed in such a manner that it became stained and discolored; that all of the decedent's heirs who had a natural claim upon her bounty were equally in decedent's favor and that no reason for disinheriting the objectors or preferring the O'Keefe children appeared; that according to the testimony of Mrs. Josephine Nash, a graphologist called by objectors as an expert witness, the signatures of decedent and Mrs. Carney were forged; that the body of the instrument was admittedly not written by decedent but by Nell, who was one of the principal beneficiaries and who, in the opinion of the graphologist, forged the signatures; and that the testimony of Gertrude O'Keefe is inherently improbable in view of her failure to have disclosed to her husband the existence of what she knew to be a will during his long and intensive search of the home. They further argue that both the jury and the court found her testimony false, as it was also impeached by her relationship to her husband--who had an interest in the outcome of the case--and by the testimony of another of objectors' expert witnesses that if the will had been signed on a dining room table on which there was a tablecloth, as testified to by Mrs. O'Keefe, ¹ it should have been embossed, which it was not according to this expert.

At the conclusion of the trial the proponents took the position that the only disputed issue of fact was due execution and by appropriate motions requested that...