Powers' Estate, In re

• Citation: 375 Mich. 150,134 N.W.2d 148
• Decision Date: 09 April 1965
• Docket Number: 99,Nos. 98,s. 98
• Parties: In the Matter of the ESTATE of Lunette I. POWERS, Deceased.
• Court: Michigan Supreme Court

Page 148

134 N.W.2d 148

375 Mich. 150

In the Matter of the ESTATE of Lunette I. POWERS, Deceased.

Nos. 98, 99.

Supreme Court of Michigan.

April 9, 1965.

[375 Mich. 154]

Oscar E. Waer, John C. Cary, Grand Rapids, and Parmenter, Forsythe & Steendam, Muskegon, for proponent and appellant

Harry J. Knudsen, Pros. Atty. for County of Muskegon, Muskegon, for appellee and contestant undesignated and unknown charities.

John S. White, Muskegon, for appellee and contestant heirs-at-law.

Before the Entire Bench.

O'HARA, Justice.

This is a will contest. On behalf of the proponents there was submitted to us 3 volumes of appendix material totaling 1,294 pages, a 17-page table of contents, a 197-page brief which lists 180 citations and a reply brief of 21 pages with 43 additional citations.

For the contestants we were favored with 2 volumes of appendix containing 573 pages, a 161-page brief with 58 citations. We have noted a few duplications in citation which might reduce the combined[375 Mich. 155] total by a half dozen or so. Oral argument was spirited and comprehensive, if at times somewhat emotional.

The case was tried to a jury. A verdict, general in terms, was returned: 'The foreman: We find against the will.'

Motions for a directed verdict, for verdict non-obstante veredicto and for a new trial were made. It is from a denial of these motions that appeal is taken. Eighteen additional assignments of error are made, one of which reiterates on a specific ground, error in denial of a new trial. The others challenge refusals of requests to charge, admissions of and refusals to admit evidentiary matter.

Abiding all this, our scope of review is essentially limited. Were issues of fact created by conflicting admissible evidence? If so, the jury's finding thereon is controlling. If error was committed in admissions or exclusions of evidence, were they prejudicially reversible? Was there reversible error in the charge including refusals of specific requests--and, of course, that rather difficult to define question submitted in most jury cases--was the verdict against the great weight of the evidence? It would be rare, if not unique in 8 weeks of bitterly contested litigation were no error committed. In this case there was. Some was harmless. The question must be confined to such error as would have denied to appellants the basic guaranty of a fair trial.

This case is no stranger to our bench. Antecedent this assigned Justice joining the Court, facets of the controversy were here in In re Powers' Estate, 362 Mich. 222, 106 N.W.2d 833; and Rogoski v. Streeter, 364 Mich. 115, 110 N.W.2d 617. One wonders whether, as Tennyson's 'Brook,' the case is destined to go on forever.

Abstracted with diligence, these seem to us the relevant facts. Lunette Powers was born in Fowlerville, Michigan, October 18, 1875. Both her mother [375 Mich. 156] and father were pharmacists. She, at a time when the accomplishment was relatively unusual for a woman, was graduated from the College of Medicine, Northwestern University, in 1897. She began practice of her profession in Muskegon. Shortly thereafter, she met Loretta Rogoski, whose maiden name does not seem to appear of record. Neither the

doctor nor Mrs. Rogoski was at the time married. It is beyond discussion that they became close friends--a friendship that endured in varying degrees of intimacy till Dr. Powers' death. In 1919, 4 years after meeting Dr. Powers, Loretta nee whatever, married Alexis Rogoski. The friendship with Dr. Powers continued after her marriage. Mr. Rogoski is and was then a practicing attorney. Thereby comes this lawsuit

On December 7, 1955, Mr. Rogoski drew a will for Dr. Powers. She had made a number of wills, holographic and otherwise, previously. This instrument made a number of specific bequests charitable, sentimental and professional. It specifically omitted, with stated reasons, any relatives of Dr. Powers, most or all of whom she saw little or nothing of in her lifetime. The residual clause left the net estate to Mrs. Rogoski 'in appreciation of our long years of friendship and her many acts of kindness to me.' Mr. Rogoski and Bart D. Buck, Dr. Powers' financial adviser, were each left 1/5 of the estate. Mrs. Rogoski, in addition to being named as residual beneficiary, was also designated as a 1/5 beneficiary with her husband and Mr. Buck. Mr. Buck and Mr. Rogoski were designated trustees and executors. On December 22, 1955, a codicil was executed modifying the specific bequest to Mr. Buck, Mr. Rogoski and Mrs. Rogoski by substituting '5% of my estate instead of 1/5 thereof.' On November 14, 1956, a second codicil was executed making some minor changes not involving the residual clause. Mr. Buck later [375 Mich. 157] publicly declined to serve in any fiduciary capacity in keeping with the policy of the financial institution of which he was an officer and turned over to a Muskegon hospital 'any legacy' that might come to him under the will. When the wills and codicils were sought to be probated, litigation culminating in the decision hereinbefore mentioned (In re Powers' Estate, 362 Mich. 222, 106 N.W.2d 833) took place. For its relationship to this cause, the decision remanded the controversy to the Muskegon county circuit court for the proceedings which are under review here. Mandamus to order a change of venue was denied proponent Rogoski in Rogoski v. Streeter, 364 Mich. 115, 110 N.W.2d 617.

So what skeletal facts do we have--an attorney draws a will for a doctor friend of the family which leaves the bulk of a very substantial estate, upwards of a half of a million dollars--to his, the lawyer's wife and names himself an additional beneficiary and an executor and trustee. In addition to being named as a specific beneficiary and the residuary beneficiary of the will, Mrs. Rogoski was named as a cotrustee of a 'living trust' created by the testatrix in her lifetime. This trust was also drafted by Mr. Rogoski.

If any prizes were to be awarded for dismal professional judgment, the proponent here would be in a fair way to be signally recognized. Such is not (as we had to remind one counsel for the contestants on fiery oral argument before us) the issue here. We review a general jury verdict that 'we find against the will.' Such a finding encompasses either lack of testamentary capacity or the exercise of undue influence. The issue of the relationship of the attorney and his client, and the attorney and his wife as beneficiaries, is an additional element in the broader concept of undue influence. [375 Mich. 158] Essentially if goes to degree of proof necessary to establish prima facie the opportunity for the exercise of undue influence and the ultimate consideration of that question by the trier of the facts--in this case the jury.

We earlier built a skeletal framework of fact. Now we are obliged to advert to those elements of proof and legal concepts pro and contra bearing upon the validity of the instrument in question.

For the proponent it must be recognized that Dr. Powers is presumed to have had the mental competency to make

her will. ¹ We need not embellish the statutory citation with supporting case precedent. It is further the settled law of this jurisdiction that the testamentary capacity is judged as of the time of the execution of the instrument, and not before or after, except as the condition before or after is competently related to the time of execution. In re Nickel's Estate, 321 Mich. 519, 32 N.W.2d 733 (526). Other supporting citations abound. We cite one only as indicative of the principle being settled law

What then were the circumstances attending the execution of the instrument and its codicils, and what were the testatrix' objective manifestations of her mental condition on these occasions. Proponent Rogoski says in substance, and we paraphrase to narrative form in the interest of manageable brevity:

On December 3 or 4 (1955) * * * 'she said to me [at proponent's home] * * * Mr. Rogoski, I am planning to go to Florida. I want to make my new will and I'd like to have it ready before I go.' I asked if she were ready to give me the required information; she said she was. I took notes in sequence as she outlined her wishes. She said additionally, tomorrow I will bring you a letter of instruction to attach to it. She brought it to my office. I drafted the will in professional terminology on the 5th of December. On the 6th, Dr. Powers came to my office for the purpose of executing the [375 Mich. 159] will. I I asked her to go into my law library and read it carefully. I went on about my business. Sometime later my receptionist said 'Doctor is ready to execute the will.' I went to adjoining offices to get witnesses. I found Elsie Moore who had witnessed instruments for me before and Don McCarthy who works in an office adjoining that in which Mrs. Moore was employed. I asked doctor if she were satisfied to have them witness her will. She so indicated. She then signed the will in the presence of the witnesses and they in hers and each other's presence. I gave doctor a copy of the will, retained the original with the letter she had previously delivered to me, and put them both in my safe deposit box.

Significantly or not, as the jury was required to determine, Mr. Rogoski then added (paraphrased):

I want you to reread this will carefully to see if it meets with your approval, if it does, mail me a letter stating that it meets with your approval. If it does not, I want you to come right back and let me revise the will to conform to your ideas.

Such a letter was directed by the testatrix to the proponent and it became an exhibit 4. The letter read:

'Dec. 8/55

'To express our thanks for your skill and kindness in our business matter yesterday

'DR. LUNETTE I. POWERS

Muskegon, Michigan

Muskegon, Dec. 8/55

'A. Rogoski, Sr.

'Dear Mr. Rogoski:

'May I consume a few of your seldom vacant moments to let you know how very pleased...