Stormon v. Weiss

• Decision Date: 01 July 1954
• Docket Number: No. 7285,7285
• Citation: 65 N.W.2d 475
• Parties: STORMON v. WEISS et al.
• Court: North Dakota Supreme Court

Page 475

65 N.W.2d 475

STORMON v. WEISS et al.

No. 7285.

Supreme Court of North Dakota.

July 1, 1954.

Rehearing Denied July 29, 1954.

Syllabus by the Court.

1. A person who has reached the age of eighteen years may make a will disposing of all or any part of his estate. Section 56-0201 NDRC 1943.

2. Where the validity of a will is challenged on the ground of lack of testamentary capacity on the part of the testator, there is a presumption of sanity and capacity and the burden of proving lack of capacity rests upon the contestants.

3. In determining the issue of testamentary capacity the ultimate question is whether the testator was competent at the time of the execution of the will.

4. Testimony as to oral statements made by a deceased person is generally regarded as the weakest kind of evidence and subject to close scrutiny.

5. The action of a testatrix in willing her estate to the husband of her niece in preference to her sisters is not so unnatural as to warrant the inference that she was incompetent to make a testamentary disposition of her property.

6. Where one of the contestants of the probate of a will on the ground of mental incompetency testified regarding the testatrix that 'She was too sick a woman to make a will.' and it does not appear that the witness was informed or knew of the legal requirements of testamentary capacity and the facts related by the witness do not support a conclusion of testamentary incapacity, the statement of the witness is without probative value.

7. A nonexpert who is not a subscribing witness may testify as to his opinion of the mental condition of a testator at the time of the execution of a will only after it has been shown that the witness has had an opportunity of knowing the condition of the testator's mind and he has stated facts which justify his opinion.

8. A subscribing witness to a will may give his opinion as to the mental capacity of the testator without stating the facts upon which it is based or otherwise establishing his qualifications to judge the testator's mental capacity.

9. The burden of proof is on one who offers a will for probate to establish the execution of the will in the manner prescribed by statute.

10. Contestants of a will who challenge its validity on the ground of undue influence have the burden of sustaining their challenge.

11. Where a will is challenged on the ground of undue influence and it appears that the will under which the proponent was the sole beneficiary, to the exclusion of sisters of the testatrix, was drawn by the proponent, an attorney who has at various times over a period of years advised the testatrix on legal matters and who was the husband of the testatrix's niece, and it also appears that the execution of the will, while in conformity with the statute, was perfunctory and the will was not discussed or read to or by the testatrix in the presence of the subscribing witnesses and the terms of the will were not disclosed until after the death of the testatrix, when it was produced by the proponent in whose possession it had remained from the time of its execution, an inference of undue influence arises which casts upon the proponent the burden of going forward with the evidence to overcome the inference.

12. Where the validity of the execution of a will is challenged on the ground that the execution was obtained through the undue influence of the plaintiff, an attorney, who drew the will and was named therein as sole beneficiary, the credibility of the uncontradicted and uncorroborated testimony of the plaintiff is for the trier of the facts to determine in the light of other facts and circumstances which give rise to the inference that the execution of the will was obtained through the exercise of undue influence.

13. Where evidence has been produced giving rise to an inference of undue influence on the part of a beneficiary who drafted a will and evidence was produced tending to show that the testatrix, although sixty-four years of age and suffering from an illness that required an operation, from which she later recovered, was mentally competent to make a testamentary disposition of her property and lived seven years after making the will without changing it, during which she managed her own business affairs with considerable success, and the beneficiary testified that the testatrix dictated the terms of the will, which she read, and it was left with her for some twenty minutes while he summoned a subscribing witness, it is held that the question of whether the beneficiary exercised undue influence in procuring the execution of the will is for the trier of facts to determine and a motion for a judgment notwithstanding the verdict on the part of the proponent was properly denied.

14. An attorney, without the consent of his client, cannot be examined as to any communication made by the client to him, nor as to his advice given thereon in the course of professional employment. Section 31-0106 NDRC 1943.

15. The basis of any valid objection to the testimony of an attorney under the provisions of Section 31-0106, NDRC 1943, is the relationship of attorney and client and the burden of showing the relationship is on the objector.

16. Where an attending physician is requested by the testator to witness his will, and in accordance with that request does subscribe to the will as a witness, the testator waives the restrictions on the competency of the physician as a witness prescribed by Section 31-0106, NDRC, 1943, and the physician, in an action involving the validity of the will, may be called as a witness and examined and cross-examined the same as any other subscribing witness.

Roland A. Heringer, Rugby, Sinness & Duffy, Devils, Lake, and J. Howard Stormon, Rolla, for petitioner and appellant.

C. A. Waldron and Bruce M. Van Sickle, Minot, John Finch Arneson and Robert Elliot, Jr., Minneapolis, Minn., of counsel, for contestants and respondents.

MORRIS, Chief Justice. ¹

This is an appeal from a judgment of the District Court of Pierce County vacating and annulling a decree of the County Court of Pierce County admitting a will to probate. The will involved was executed by Ethol G. McIntyre on July 15, 1941.

Ethol G. McIntyre died on July 9, 1948, at Miami, Florida. At the time of her death she was, and for many years prior thereto she had been, a resident of Pierce County in this state. She had no children and left no surviving spouse, her husband having died in 1930; but left surviving her three sisters and several nephews and nieces, the children of two deceased sisters. By the terms of the will in question here all former wills made by said Ethol G. McIntyre were revoked, all property owned by her at the time of her death was devised and bequeathed to John A. Stormon, the husband of one of her nieces, and said John A. Stormon was appointed to be executor of the will. In due time John A. Stormon filed in the County Court of Pierce County a petition praying for the probate of the will. The three sisters of Mrs. McIntyre and the children of one of her deceased sisters filed written objections to admitting the will to probate. Such objections were filed first by two of the sisters and a son of one of the deceased sisters. Such objections were signed and verified by one of the attorneys for the contestants on information and belief. Subsequently an amended answer and objections to the petition for the probate of the will were filed by the three sisters of Mrs. McIntyre and by two nephews and two nieces, the children of one of the deceased sisters. The remaining nephews and nieces, children of the other deceased sister filed no objections. In such objections and answer it is stated that the alleged and purported will offered for probate is not the true last will and testament of the deceased, that at the time of the supposed execution of the purported will the decedent was not of sound and disposing mind but 'was of such extreme mental agitation and physical pain that she was not capable of making or undertaking to make a will'; that at the time of the execution of such will she was under the restraint and undue influence exercised by John A. Stormon, that for a long time prior thereto said Stormon had advised the decedent on legal and business matters and that she retained him for many years as her attorney, paid him legal fees for services performed, that said Stormon misused and abused his influence to such extent 'that the decedent was prevailed upon, in the purported will, to disinherit her natural heirs, the members of her family, toward whom she cherished natural affection, and by virtue of said dominant and undue influence of said Stormon he himself became the named beneficiary of the decedent to the unjust, unnatural and unfair exclusion of decedent's family.' That the purported will was at all times kept in the office safe of said Stormon and its contents not divulged to those having equal right to know its provisions. In the first answer and objection it was alleged: 'That said supposed will is not in the handwriting of decedent, and the signature thereto is not decedent's name or in her handwriting, and no person claiming to have signed the name of decedent to said supposed will by his direction has written his own name as a witness to said supposed will.' In the amended answer and objections it was and is alleged 'that subsequent to the execution of the purported will the said decedent repeatedly suggested to John A. Stormon that the provisions of the purported will, signed July 15, 1941, be changed, and revoked; that he took no steps to do so; that by reason thereof, if said purported will were to be operative, the said John A. Stormon would be a trustee of his own wrong.' The amended answer and objections were signed by one of the sisters in behalf of all the contestants, and in the verification it was and is stated that she has read the answer and objections 'knows its contents and...