Storer v. Zimmerman

• Decision Date: 09 May 1881
• Citation: 28 Minn. 9,8 N.W. 827
• Parties: STORER v ZIMMERMAN.
• Court: Minnesota Supreme Court

28 Minn. 9

8 N.W. 827

STORERvZIMMERMAN.

Supreme Court of Minnesota.

Filed May 9, 1881.

Appeal from judgment of district court, Steele county.

W. F. Sawyer and A. C. Hickman, for respondent.

A.D. Keyes, for appellant.

GILFILLAN, C.J.

The will of Joseph Storer, executed July 23, 1875, was, after his death, presented to the probate court of Steele county for probate. It was contested by this appellant, and the probate court refused to admit it to probate. From that order or decree an appeal was taken to the district court, where, after a trial of the issues presented by the contest, a judgment was entered allowing and establishing the will. From that judgment the contestant appeals to this court. In the district court the following issues for trial by jury were framed. First. Was Joseph Storer of sound and disposing mind at the date of the alleged will? Second. Was the alleged will procured to be made through undue influence of Gardner Storer, Betsey Storer, Lucy F. Storer, or either of them? Third. Is the instrument now offered for probate the will of Joseph Storer? The jury found the first and third in the affirmative, and the second in the negative. The exceptions in the appeal are presented by bill of exceptions.

The objection is made that the findings are not sufficient to justify the judgment, because the facts constituting the execution of the will are not stated in the finding. Those facts are necessarily included in the finding on the third issue, and the testator's legal capacity is established by the finding on the first. There is nothing in that objection. So far as shown by the bill of exceptions no proof was made or offered of any acts on the part of any of the persons named in the second issue of undue influence, or of any influence, over the testator in respect to making the will. It does not appear even that any of them knew he was about to or intended to make a will. The contestant offered to prove the amount of property the testator had at the date of the will, which proof was excluded. This is alleged as error.

It is insisted that proof would have shown there was great inequality in the distribution of his property among those naturally the objects of his bounty, and that that fact, in connection with evidence tending to show impaired mind and memory, which evidence was given, is evidence of undue influence on the part of those who seem to be favored by the will.

Where there is evidence, independent of any question of inequality in the will, tending to show acts of undue influence over the testator to procure him to make the will, on the part of those who appear to be preferred, evidence that the distribution is grossly unequal may be given in aid of such evidence of undue influence, to show indeed the result as well as strengthen the evidence of undue influence. But mere inequality, however great, in the distribution of the property among children or relatives, is no evidence of undue influence, nor is it made such by evidence of impaired mind. If it were evidence from which a jury might find undue influence to avoid the will, the issue practically presented to the jury in every case of the kind would be, is the will such as the jury, if in the testator's circumstances, would have made? Few wills could stand if such were the test. Any man of sufficient capacity, where his power to dispose of his property is not limited by statute, has a right, in...