Olsen v. Corporation of New Melleray

• Decision Date: 17 November 1953
• Docket Number: No. 48277,48277
• Citation: 60 N.W.2d 832,245 Iowa 407
• Parties: OLSEN et al. v. CORPORATION OF NEW MELLERAY et al.
• Court: Iowa Supreme Court

Page 832

60 N.W.2d 832

245 Iowa 407

OLSEN et al. v. CORPORATION OF NEW MELLERAY et al.

No. 48277.

Supreme Court of Iowa.

Nov. 17, 1953.

Schoenthaler & Lee, Maquoketa, and Wayne G. Cook of Cook, Blair & Balluf, Davenport, for appellants.

Bannister, Carpenter, Ahlers & Cooney, Des Moines, Louis P. Sheahan and James F. Sullivan, St. Paul, Minn., and Walter McCarthy, Maquoketa, for appellees.

LARSON, Justice.

The testator, James F. Feeney, unmarried and a resident of Maquoketa, Jackson County, Iowa, died on the 28th day of February, 1950, at the age of 72 years. He had spent, with the exception of the last three or four years, his entire life on a 320 acre farm in that county, living with his sister Bridget who was a spinster. She died on January 23, 1950, at the age of 74 years, the last of testator's six brothers and sisters who preceded him in death. In July 1947 James F. Feeney and his sister Bridget called at the office of Attorney Frank A. O'Connor in Dubuque, Iowa, for the purpose of having their wills prepared. After some discussion Mr. O'Connor explained that he was no longer active in the practice, and turned the Feeneys over to his son Francis J. O'Connor to confer with them and attend to their work. After several conferences in the office of Attorney Francis J. O'Connor relative to the provisions of the respective wills of James F. Feeney and Bridget Feeney, the will of Bridget was drawn and executed in that office on October 9, 1947. Her estate amounted to approximately $20,000 and, after making certain bequests, she left the residue of her estate to her three nieces, two of whom are contestants in this case, and one, Edna Bartak, was made a defendant in this action.

James F. Feeney died owning property valued at between $68,000 and $72,000.

On July 28, 1948, the will challenged herein was prepared in the law offices of Frank A. and Francis J. O'Connor, was signed by the testator James F. Feeney, and witnessed by E. Marshall Thomas and Francis J. O'Connor. Subsequent to another conference between testator and Attorney Francis J. O'Connor in September 1949, the attorney prepared the codicil contested herein, drove to Maquoketa where it was signed by testator and witnessed by Francis J. O'Connor and a Dr. Jordan of Maquoketa, Iowa. Under provisions of the will and the codicil the greater part of the estate was devised to the proponent Society for the Propagation of the Faith, an Iowa corporation whose general purposes are 'to help along missions at home and foreigh'. The affairs of this corporation were handled by Monsignor John M. Wolfe, the executive secretary and treasurer since 1925. Attorney Frank A. O'Connor was a director of the corporation, and the O'Connor firm had been the attorneys for the corporation for some 8 or 10 years. It was contestants' main contention that the undue influence was exercised by the proponent corporation acting through one or more of the three persons, John M. Wolfe, Frank A. O'Connor, and Francis J. O'Connor. The contestants Hazel Olsen and Mary Feeney are nieces, and contestant James Howard Feency is a nephew of the testator, and all live outside the State of Iowa. The nieces received small bequests and the nephew was not mentioned in the will or codicil.

At the close of plaintiffs' testimony, proponent's motion to strike all issues was sustained except the issue of undue influence by the Society for the Propagation of the Faith in obtaining its purported bequests. The motion of proponent for a directed verdict at the close of all testimony was overruled and the jury found for the contestants. The court then overruled proponent's motion for judgment notwithstanding the verdict, and motion for a new trial. Proponent appealed, assigning several errors which we will consider herein.

Proponent's major assignment of error and the fundamental and paramount question in the case is whether or not the court erred in failing to dismiss contestants' petition and in overruling proponent's motion to withdraw from the consideration of the jury the issue of undue influence. It is urged that contestants failed in their burden to establish sufficient evidence of undue influence to present a jury question.

The only issue submitted to the jury for consideration was whether or not Item Six and Subparagraph (18) of Subparagraph (d) of Item Seven of the will, and all the codicil thereto, pertaining to bequests to the Society for the Propagation of the Faith, were procured by undue influence. Item Six provides:

'Item Six: I give and bequeath to the Society for the Propagation of the Faith, an Iowa corporation, in memory of myself and my sister, Bridget Feeney, the sum of One Thousand Dollars ($1,000.00).

'Item Seven: * * * (d) * * * (18). All the rest, residue, and remainder of my estate, I give, devise and bequeath to the Society for the Propagation of the Faith, an Iowa corporation.'

The codicil's provisions reduced greatly the bequests for the contestant nieces and defendant niece, and eliminated or reduced other bequests, and confirmed the will in all other respects.

This trial, as in other similar cases heretofore considered by this court, was lengthy and the record is voluminous. Able counsel for both parties have submitted rather extensive briefs and arguments in which both the facts and authorities are generously reviewed. The official reports of this state and of other states are replete with records of litigation over the validity of wills. Too often the basets traits of character and habits are emphasized to attempt to show the instability of the testator. We cannot, within the limits of a reasonably brief opinion, review all the evidence nor all the authorities cited us in this field of law. The legal propositions involved are not too difficult nor do we believe that they are in serious dispute. A few pertinent ones that are applicable we shall set out at the start.

I. The general and well-accepted rule in this state is that influence, to be undue, must be such as to substitute the will of the person or persons exercising the influence for that of the testator, thereby making the writing express, not the purpose and intent of the testator, but that of the person or persons exercising the undue influence. It must be equivalent to moral coercion and must operate at the very time the will is made, and must dominate and control the making of it. If there is sufficient proper evidence of that fact and the jury so finds it to be true, then the will or the involved provisions thereof are invalidated. Worth v. Pierson, 208 Iowa 353, 223 N.W. 752; In re Estate of Ramsdell, 215 Iowa 1374, 244 N.W. 744; In re Estate of Klein, 241 Iowa 1103, 42 N.W.2d 593; In re Estate of Rogers, 242 Iowa 627, 47 N.W.2d 818, and cases cited therein. Direct proof is seldom available in such contests, and this one is no exception, but we have held many times that undue influence may be and usually is proven by circumstantial evidence. Shaw v. Duro, 234 Iowa 778, 14 N.W.2d 241; Monahan v. Roderick, 183 Iowa 1, 166 N.W. 725; In re Estate of Telsrow, 237 Iowa 672, 22 N.W.2d 792; In re Estate of Farlow, 243 Iowa 15, 50 N.W.2d 561; 68 C.J. 780, 781, Sec. 466. While the burden of proof remains with the contestants, the law is well settled that, in considering the sufficiency of the evidence to support the finding of the jury, properly introduced evidence must be viewed in the light most favorable to the contestants, giving them the benefit of all permissible inferences. In re Estate of Telsrow, supra, 237 Iowa 672, 22 N.W.2d 792; In re Estate of Farlow, supra, 243 Iowa 15, 50 N.W.2d 561; In re Estate of Ankeny, 238 Iowa 754, 28 N.W.2d 414; In re Estate of Rogers, supra, 242 Iowa 627, 635, 47 N.W.2d 818, 823, and citations.

II. In view of the facts already set out, it may be well to consider now the weight to be given evidence that an attorney who drew a contested will, was present at its execution, and received a bequest either to himself or a cause in which he was interested, should be given in such a contest. In Graham v. Courtright, 180 Iowa 394, 407, 161 N.W. 774, 778, we said:

'The relations which excite suspicion in transactions inter vivos--friendship, confidence and trust, affection, personal obligations--may and usually do justify and properly give direction to testamentary dispositions. All that can be said is that the existence of a confidential relation, such as that of guardian and ward, attorney and client, religious advisor and layman, and the like, affords peculiar opportunities for unduly exercising influence over the mind, and where the dominant party, in such relation, initiates the preparation of the will or gives directions as to its contents to the scrivener or writes it himself, in other words, is active either in its preparation or execution, and is made a beneficiary thereunder, a suspicion arises that the benefaction may have resulted from the exertion of undue influence over the testator rather than from his free volition.'

Such suspicion, of course, does not amount to a presumption, and its weight is further governed by other circumstances. At best, such wills are certainly not looked upon with favor, and the court should cautiously and carefully examine into the circumstances which were attendant upon its execution. In re Estate of Ankeny, supra, 238 Iowa 754, 28 N.W.2d 414. Some such predicating circumstances we will here consider, for it was alleged that the testator was weal-willed, easily influenced by one he trusted, and had a deteriorating mind; that the bequest was unnatural and unreasonable; and that the proponent Society, acting through the attorney or attorneys and its executive secretary, substituted its will for that of testator in providing the benefits for the Society. We said further in the Courtright case that such suspicion may rise to an inference if the legacy were large compared to the total value of the estate. This inference is...