Swan's Estate, In re, 8246
| Decision Date | 15 February 1956 |
| Docket Number | No. 8246,8246 |
| Citation | 4 Utah 2d 277,293 P.2d 682 |
| Court | Utah Supreme Court |
| Parties | d 277 In the Matter of the ESTATE of Wilda Gail SWAN, deceased. Theo Swan HENDEE, Plaintiff and Respondent, v. WALKER BANK & TRUST COMPANY, Executor of the Last Will and Testament of Wilda Gail Swan, deceased; Grant Macfarlane, Daniel Kostopulos and Ada Bridge, Defendants and Appellants. |
Rawlings, Wallace, Roberts & Black, N. J. Cotro-Manes, LeGrande P. Backman, Salt Lake City, for appellant.
Paul H. Ray, Grant C. Aadnesen, Athol Rawlins, Salt Lake City, for respondent.
Theo Swan Hendee, plaintiff and respondent here, contests the will and codicils of Wilda Gail Swan, which were admitted to probate June 25, 1952. Theo is an older sister and sole heir of Gail who died May 28, 1952, at age 62 without issue and unmarried. The will was signed May 2, 1947, the first codicil signed February 20, 1950, and the second codicil was signed April 23, 1951. These instruments were all drawn by Grant Macfarlane, as her attorney and confidential adviser. They devised to Theo only a small portion of her estate, leaving to Macfarlane and Daniel Kostopulos, whom the trial court also found was a confidential adviser of Gail, the major part of her estate. The contest is based on the allegations that at the time of signing these instruments Gail, (1) lacked testamentary capacity, and (2) was acting under fraud and undue influence of Macfarlane and Kostopulos. The trial court found both issues in favor of Theo and against Macfarlane and Kostopulos, who bring this appeal on the sole ground that the evidence is not sufficient to support such findings.
A will contest being an action at law 1 we are bound by the trial court's findings unless such findings are unreasonable in view of all of the evidence and all reasonable inferences therefrom when considered in the light most favorable to supporting the judgment. 2 So we will examine the evidence in such light to see whether the trial court's findings are reasonably deducible therefrom.
1. We first consider the finding that Gail lacked testamentary capacity at the time she signed the will and codicils. These instruments are very brief and not burdened with confusing legal terms nor complicated descriptions and the various tracts of real estate are described merely by street numbers. The estate which the state inheritance tax appraisers valued at $281,115.92 consisted of eight tracts of real estate, two items of personal property and the residue.
This court is committed to the proposition that mere eccentricities or inability to conduct a business, whether for lack of training or for lower than normal mental capacity does not prove incapacity to make a will. The true test is, 'if he is able to remember who were the natural objects of his bounty, recall to mind his property, and make disposition of it understandingly, according to some purpose or plan formed in his mind' 3 he has testamentary capacity. With this in mind we will consider the evidence.
Gail was born in Salt Lake City in 1890 of parents of considerable means. She attended school as a child of normal health until she was about eleven, when she showed signs of nervousness, and about a year later in 1902, and frequently thereafter she suffered violent epileptic seizures. She was then taken out of school and deprived of the normal associations with persons of her age until after she was twenty-seven, when medical treatment became available which substantially controlled the seizures, and for the rest of her life she was up and about most of the time and participated in the business and social life of the family. Her mother died in 1931, when she was forty-one, thereafter she lived with her father until his death in 1950. Theo lived in the family home until she graduated from high school, when she went to college, and later, from 1911 to 1913, she taught school. She married in 1914, and in 1922 she and her husband moved from the east to San Francisco where he was a newspaper editor, and they were socially prominent. Both girls received substantial bequests from their grandfather, and property by direct deed from their father. Such are the sources of this estate. The girls visited with each other, corresponded, and sometimes communicated by telephone. There is some evidence that indicated differences between them. Gail resented receiving clothes from Theo, seemed to envy her social prominence, and her married life. She asked her friends and business associates not to tell Theo about her business and said she was not going to leave her much. The evidence indicates that Gail was anxious to have and retain the friendship and social contact with men.
There is little conflict in the testimony as to events, occurrences and conditions, but a wide difference of opinion of opposing counsel on what inferences should be drawn therefrom. A number of medical doctors testified for each side including two psychiatrists. Most of them treated Gail during her lifetime, and two of them made special examinations of her at the time she executed the last codicil, which they witnessed, to determine whether she had testamentary capacity. All agreed that her mental capacity was below the normal adult person, but that she was not insane or feebleminded. There is nothing in their testimony which indicates that she was unable to remember the natural objects of her bounty, recall her property or understandingly dispose of it, and practically all of their testimony was definitely to the contrary. The same is true of the testimony of the many lay witnesses.
It was shown without substantial contradiction that when she executed the will and codicils Gail could read and write, carry on correspondence, go about the city alone and take care of ordinary business and social affairs. She owned rental property many years before her father's death. He deeded her about $200,000 worth of property several years prior to his death without appointing a trustee or guardian to help her manage it. Prior to 1948 or 1949 she managed and collected the rentals from her property, but thereafter she retained the aid of the property management department of a banking institution in these matters. During such times she supervised and changed the managing institution and signed numberous leases and rental contracts which the evidence indicates she did when intelligence and understanding. She carried bank accounts in her own name, knew the location and nature of her properties and the rentals therefrom, keeping a book account thereof. She kept herself neat and cleam, visited her hair-dresser regularly and was able to discuss current events and general affairs in the usual manner. She played the piano and the harp. She played canasta regularly with a group of women and with friends; she attended baseball games regularly and one time gave a dinner to the Salt Lake team.
Some of her actions did suggest subnormal behavior. At times she was unusually generous or improvident in making loans or gifts to her friends. These matters were only occasional and did not indicate she did not understand what she was doing. She promised or suggested to various persons that she would make them beneficiaries under her will. Besides promising and making Macfarlane, Kostopulos and Ada Bridge such beneficiaries, she suggested to at least three male business associates that she would make them beneficiaries of her will, but each of them declined. There was also testimony that the first time she met the husband of one of her friends she asked him how he would like to manage all her property; that she would poke men in the ribs on short acquaintance and that she often giggled and acted childish. This evidence when considered separately or all together does not indicate a lack of testamentary capacity, but at most merely indicates a slightly below normal adult mental age. It does not indicate that she did not remember the natural objects of her bounty or did not keep in mind her property or lacked the ability to dispose of it understandingly in accordance with some purpose or plan. This is especially true in view of the volumes of evidence to the contrary. The contestant had the burden of proving or persuading the trier of the fact by the evidence that she lacked testamentary capacity. We conclude that in view of all of the evidence the finding of the trial court that she lacked testamentary capacity was unreasonable and must be reversed.
I acknowledge the help of Judge HOYT, who has made a very careful study and analysis of the evidence and the law in this case.
2. On the other hand, the second finding that the bequests to Macfarlane and Kostopulos were induced by fraud and undue influence must be affirmed. Where a confidential adviser is made the beneficiary in a will, receives gifts or possible benefits from transactions with the person who relies on his advice and counsel on such matters in the making or execution of which he actively participates, a presumption of fraud and undue influence arises, which shifts the burden of persuading the trier of fact that there was no fraud or undue influence. Macfarlane was clearly Gail's confidential adviser in making this will and the codicils, for he draw each of them while acting as her attorney. The trial court found that Kostopulos was also her confidential adviser on these matters at the time when the instruments were executed, which made him a beneficiary. The evidence shows that Macfarlane and Kostopulos were acquainted with each other and were both interested in receiving bequests from her. It is reasonable to infer from those facts that Macfarlane failed to give her disinterested independent advice on the Kostopulos bequest for fear of losing thereby the bequest to himself. There is no contention that such finding was not supported by the evidence. These findings gave rise to the presumption of fraud and undue influence which shifted the burden...
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