Murphy v. Nett
| Decision Date | 13 February 1913 |
| Citation | 130 P. 451,47 Mont. 38 |
| Parties | MURPHY v. NETT. |
| Court | Montana Supreme Court |
Appeal from District Court, Lewis and Clark County; Lew L. Callaway Judge.
Will contest by Mary Murphy against Anna E. Nett. From an order denying a motion for new trial after judgment for plaintiff defendant appeals. Affirmed.
See also, 45 Mont. 607, 126 P. 252.
H. G. & S. H. McIntire and John B. Clayberg, all of Helena, for appellant.
Galen & Mettler, of Helena, for respondent.
Edward J. Murphy died on November 27, 1909, leaving an estate worth approximately $30,000, and one heir at law, his mother, Mary Murphy, the respondent on this appeal. His other near relatives are a full sister, Anna E. Nett, the appellant here, and two brothers and three sisters of the half blood. An instrument purporting to be his last will and testament, executed December 12, 1908, was offered by the appellant for probate, and its right to be received and regarded as his last will and testament is contested by the respondent, upon the grounds that at the time of its execution the testator lacked testamentary capacity, and was acting under undue influence of the appellant. By the terms of this will one dollar was given to each of the half brothers and sisters, and the balance of his property was left to appellant, on condition that she should, out of the property, support and care for the respondent during the remainder of respondent's life.
This is the second appeal in this matter. On the former appeal (see In re Murphy's Estate, 43 Mont. 353, 116 P. 1004, Ann. Cas. 1912C, 380) the judgment in favor of respondent was reversed, and the cause remanded for a new trial on account of certain errors in the instructions. The case was retried, and the jury found for the respondent upon the issue of testamentary capacity. This appeal is from an order denying appellant's motion for a new trial.
1. The respondent suggests that this appeal ought not to be considered, because an appeal was taken from the judgment herein and dismissed on motion of respondent, and because the appellant has, by failure to discuss it, abandoned specification No. 3, which claims error in the overruling of the motion for new trial. Concerning the appeal from the judgment, the argument is that by its dismissal the judgment was affirmed and became final, and cannot now be undermined by a reversal of the order overruling the motion for new trial. In Molt v. Northern P. Ry. Co., 44 Mont. 477, 120 P. 809, we considered some of the difficulties incident to our present appellate procedure; and it is a necessary consequence from what is there said that, where separate appeals, permissible under the statute, are taken in the same case, the fate of one is not necessarily involved in the fate of the other. Nor is there any merit in the supposed abandonment of specification No. 3. While we do not find in appellant's brief any discussion of specification No. 3 eo nomine, the entire brief reads like an argument devoted to the theme that the motion for a new trial should have been sustained.
2. It is contended that the allegations of undue influence, as set forth in the amended statement of contest, were insufficient, and that the trial court erred in not eliminating this subject from the case. Doubt may be entertained as to whether this matter was ever properly raised in the district court; but, assuming it to be properly before this court, it presents two aspects: As affecting the integrity of the judgment, and as furnishing a basis for the introduction of evidence. As regards the integrity of the judgment, the question is purely academic, because there was no finding of undue influence. There were sufficient allegations in the amended statement of testamentary incapacity, and upon that only was there any finding by the jury. Since this finding is the sole support of the judgment, it cannot matter to the judgment what may be the deficiency in the allegations relating to undue influence. In re Murphy's Estate, supra. Vigorous language is employed, however, to convince us that, if the subject of undue influence had been eliminated from the pleadings, no testimony could have been received upon it; and that, inasmuch as a great part of the record consists of such testimony, clearly creative of prejudice in the ordinary mind, its effect in producing the finding upon the other issue must be manifest, and this court should send the case back for a new trial. There is enough merit in this to warrant a determination of the question raised.
"Undue influence," as applied to cases of wills, has been variously defined. In the former appeal of this case it was stated to be such as "imposes a restraint on the will of the testator, who, but for the restraint, would be free and responsible, so that his testamentary act is not the result of his own volition, but the will of another;" and this, in connection with our statute (Rev. Codes, § 4981), is sufficient for all practical purposes. The theory underlying the doctrine of undue influence is that the testator is induced, by the means employed, to execute an instrument in form and appearance his will, but in reality expressing testamentary dispositions which he would not have voluntarily made. 40 Cyc. 1146; Page on Wills, § 126, p. 145. To defeat a will, the undue influence must have been directed toward the particular testamentary act and at the time thereof, or so near thereto as to be operative. 40 Cyc. 1145; Page on Wills, § 130, p. 151. As such influence is seldom exercised openly, it cannot be expected that a pleading should specify with particularity the entire details of the manner in which it was used. If ultimate facts are alleged from which the legal conclusion of undue influence fairly follows, it is sufficient to support proof. Estate of Gharkey, 57 Cal. 279; Sheppard's Estate, 149 Cal. 219, 85 P. 312.
Now, as constituting undue influence, the amended statement at bar alleges that when the will was made, the decedent was, and for a long time prior thereto had been, so afflicted with disease of the body and mind that he was unable to properly take care of himself, and was in constant need of the care and attention of some other person, and became so weakened in mind and body and reasoning faculties that he was easily influenced by those under whose care and into whose custody he came; that during all such time appellant acted as guardian and custodian of his person and property, was almost constantly with him, and he was entirely dependent on her for the care and attention of which he stood in need; that as a patient he was constantly in charge of physicians and nurses selected and employed by her; that by reason of all these things she acquired and had, at the time the will was made, a great and controlling influence over his mind and will, and was able to and did direct and dictate to him what he should do in matters pertaining to his property; that, "taking a grossly oppressive and unfair advantage of his necessities and distress of mind and body," she did, many times before the will was made, "demand and importune of him that he leave all his property by will to her, to the exclusion of all his other relatives, and particularly to the exclusion of his mother, the contestant herein"; that by reason of such demands and importunities she did so prevail upon and influence him in his then weakened condition of mind and body at the time the will was made that he did, against his will and wish, "in form execute the said purported will," but said will was not his free or voluntary act, and, had he been free from the said undue influence of appellant, he would not have made the will in question.
"Demands and importunities," it is said, are all that is here alleged, and as demands and importunities may be entirely proper, they cannot alone support the charge of undue influence. We think that counsel unduly restrict the effect of respondent's allegations by ignoring the circumstances. In a case involving undue influence the question is not what effect the supposed influence would have had upon an ordinarily strong and intelligent person, but its effect upon the person on whom it was exerted, taking into consideration the time, the place, and all the surrounding circumstances. Page on Wills, § 126, p. 146; Mooney v. Olsen, 22 Kan. 69; Gurley v. Park, 135 Ind. 440, 35 N.E. 279; Griffith v. Diffenderffer, 50 Md. 480; Shailer v. Bumstead, 99 Mass. 121; Rollwagen v. Rollwagen, 63 N.Y. 519. To say that demands and importunities can in no case amount to undue influence, unless coupled with fraud, threats, or misrepresentation, is to misapprehend the purport of our statute and to beg the question. Whether they do or do not depends upon what they are, how persistently and under what circumstances they are employed, and whether the mind of the testator is so infirm as to be overpowered by them. It is here charged that the demands and importunities in question were of a certain peculiar character were plied by a person standing in a certain special and controlling relation to the testator, at a certain period of time when, by reason of mental weakness, he was unable to resist, and that they caused him to do what he did not want to do, and would not have done if left alone. While we do not acclaim the pleading before us as a model, we think that, under such circumstances as are detailed, it is quite possible for demands and importunities to amount to undue influence, without actual fraud, menace, or misrepresentation (Hacken v. Newborn, style 427; Hall v. Hall, L. R. 1 Prob. Div. 481; Wingrove v. Wingrove, L. R. 11 Prob. Div. 81; Roman Catholic Episcopal Corporation v. O'Connor, 14 Ontario L. R. 666; Higginbotham v. Higginbotham, 106 Ala. 314, 17 So. 516; ...
To continue reading
Request your trial