Thill v. Freiermuth

• Decision Date: 04 February 1916
• Docket Number: No. 19551 [204].,19551 [204].
• Citation: 156 N.W. 260,132 Minn. 242
• Parties: THILL et al. v. FREIERMUTH et al.
• Court: Minnesota Supreme Court

132 Minn. 242

156 N.W. 260

THILL et al.

v.FREIERMUTH et al.

No. 19551 [204].

Supreme Court of Minnesota.

Feb. 4, 1916.

Appeal from District Court, Dakota County; Albert Johnson, Judge.

Action by Celestine Thill and others against George Freiermuth and others. From denial of new trial, defendants appeal. Reversed.

Syllabus by the Court

Since the enactment of Laws 1907, c. 123, § 1 (Gen. St. 1913, § 6814), giving a wife the right to convey her real estate by her separate deed, the husband, in an action involving real estate not the homestead, to which action his wife is a party, is not prohibited from testifying to a conversation with a deceased person by Gen. St. 1913, § 8378 (Rev. Laws 1905, § 4663), making a person interested in the event of an action incompetent to testify as to such a conversation.

To constitute undue influence the mind of the grantor must be so influenced that the deed in effect represents the mind and intent of another and not his own. The burden of proof is upon the plaintiffs. Circumstantial evidence is sufficient. A deed from parent to child, though subject to scrutiny, is presumed valid.

The evidence is examined and held not to sustain a finding that a certain deed was procured by undue influence. T. R. Johnson, of Cannon Falls, and W. H. Gillitt, of Hastings, for appellants.

Otto Kueffner, of St. Paul, for respondents.

DIBELL, C.

Action by certain of the heirs and devisees of Columbus Freiermuth, deceased, against George Freiermuth, a son and one of the devisees of the deceased, and Cliff W. Gress, his executor, to set aside a deed made by the deceased to the defendant Freiermuth. There were findings for the plaintiff. The defendants appeal from an order denying their motion for a new trial.

1. At the trial a witness, the husband of one of the plaintiffs, was permitted to testify to conversations with the deceased. It is urged that this was error. The statute provides that:

‘It shall not be competent for any party to an action, or any person interested in the event thereof, to give evidence therein of or concerning any conversation with, or admission of, a deceased or insane party or person relative to any matter at issue between the parties,’ etc. G. S. 1913, § 8378; R. L. 1905, § 4663.

In Madson v. Madson, 69 Minn. 37, 71 N. W. 824, it was held that the wife of a party was a competent witness to a conversation with the deceased relative to the issue, which was the title to real estate, she not being interested in the event of the action within the meaning of the statute. In Lowe v. Lowe, 83 Minn. 206, 86 N. W. 11, it was held that a husband could not testify as to such conversations in an action in which his wife was a party, his interest in the event of the action being such as to disquality him. As the statute then was the wife could not convey without her husband joining and it was held that the husband had an interest in his wife's lands so different from that of a wife in her husband's lands that the prohibitions of the statute were applicable; and Madson v. Madson, supra, was distinguished. As the statute now is a wife may by her separate deed convey her real property, except the homestead. Laws 1907, c. 123, § 1; G. S. 1913, § 6814. The result is that the husband has now no such interest in the event of the action as disqualifies him from testifying unless the property be the homestead; and the rule in the Madson Case is applicable and controlling. The trial court did not err in receiving the testimony.

2. In Re Nelson, 39 Minn. 204, 39 N. W. 143, approval was given to the definition of undue influence quoted in Conley v. Nailor, 118 U. S. 127, 6 Sup. Ct. 1001, 30 L. Ed. 112, from a Pennsylvania case:

‘That is undue influence which amounts to constraint; which substitutes the will of another for that of the testator. It may be either through threats or fraud; but, however exercised, it must, in order to avoid a will, destroy the free agency of the testator at the time when the instrument is made.’

In Howard v. Farr, 115 Minn. 86, 131 N. W. 1071, this language is used:

‘In proving undue influence, there must be evidence to satisfy the court that the free agency of the donor or testator was destroyed at the time the instrument was made, so that, in effect, the deed or will does not express the mind and intent of the donor or testator, but is the act of the person exercising the influence. To constitute undue influence, the mind of the donor or testator must be so controlled or affected by persuasion or pressure, artful or fraudulent contrivances, or by the insidious influence of persons in close confidential relations with him, that he is not left to act intelligently, understandingly, and voluntarily, but becomes subject to the will or purposes of another.’

This conception is expressed in varying language in different cases. Mitchell v. Mitchell, 43 Minn. 73, 44 N. W. 885;Schmidt v. Schmidt, 47 Minn. 451, 50 N. W. 598;In re Hess, 48 Minn. 504, 51 N. W. 614,31 Am. St. Rep. 665;Tyner v. Varien, 97 Minn. 181, 106 N. W. 898;Buck v. Buck, 122 Minn. 463, 142 N. W. 729. The burden of proving undue influence is upon the plaintiffs. Rader v. Rader, 108 Minn. 139, 121 N. W. 393;Mitchell v. Mitchell, 43 Minn. 73, 44 N. W. 885;In re Hess, 48 Minn. 504, 51 N. W. 614,31 Am. St. Rep. 665;Tyner v. Varien, 97 Minn. 181, 106 N. W. 898. It may be proved by circumstantial evidence-usually is so proved. In re Storer, 28 Minn. 9, 8 N. W. 827;Fischer v. Sperl, 94 Minn. 421, 103 N. W. 502;Naeseth v. Hommedal, 109 Minn. 153, 123 N. W. 287;Buck v. Buck, 122 Minn. 463, 142 N. W. 729.

‘But the circumstances relied on to show it much be such as, taken all together, point unmistakably to the fact that the mind of the testator was subjected to that of some other person, so that the will is that of the latter, and not of the former; mere ground of conjecture or guess is not enough.’ In re Nelson, 39 Minn. 204, 39 N. W. 143.

A transaction resulting in a deed from a parent to a child will be scrutinized carefully; but the presumption is in favor of the validity of the deed. Rader v. Rader, 108 Minn. 139, 121 N. W. 393;Prescott v. Johnson, 91 Minn. 273, 97 N. W. 891;Gustafson v. Gustafson, 92 Minn. 139, 99 N. W. 631; and see Howard v. Farr, 115 Minn. 86, 131 N. W. 1071. It is not enough that the one benefited had an opportunity to exert undue influence and the motive for exercising it. In re Nelson, 39 Minn. 204, 39 N. W. 143;In re Hess, 48 Minn. 504,21 N. W. 614,31 Am. St. Rep. 665;Little v. Little, 83 Minn. 324, 86 N. W. 408. There must be undue influence exercised in fact and it must be effective.

[3] 3. Upon a consideration of the evidence, applying the principles stated, we reach the conclusion that a finding of undue influence is not sustained.

Columbus Freiermuth came to Minnesota in 1866 or 1867 and settled in Dakota County. He bought a farm of 104 acres when land was cheap. He added to it until it contained nearly 400 acres. He and his wife were thrifty and accumulated in addition to the farm something like $20,000 or $25,000, something over one-half being treated as the savings of the husband and the rest as the savings of the wife. Apparently the mother's portion went to the children; and there was some sort of distribution of some of the father's portion though the precise disposition of it is not shown. The defendant was the oldest son and was 57 years of age at the time of the trial. He stayed on the farm. The other children married and left home early in life, some coming to St. Paul, and others going elsewhere but to places in the general vicinity of the old home. The defendant was the only farmer. The father retired from active work some 24 or 25 years prior to this death and the defendant rented the farm during that period. Prior to that he had rented a portion of it. For two years he had rented a farm nearby. The father and mother lived in a house on the farm but apart from their son. The mother died in February, 1911, and the father then went to the home of the defendant where he lived until his death. In 1908 he made a will, to which his wife assented, devising, after certain specific bequests, the residue of his property to his children in equal shares. On November 9, 1911, he executed to the defendant the deed now in question. At the same time he made a will which, after a number of bequests, devised the residue of his property to his six children. Later he made another will, differing in some respects, but not in respect of the names of his residuary devisees, and this will was probated. He died March 9, 1913, one year and four months after the execution of the deed. The plaintiffs, in...