
    ANDERSON et al. v. ANDERSON et al.
    No. 2416.
    Decided May 9, 1913.
    (134 Pac. 553).
    1. Wills — Undue Influence — Evidence—Sufficiency. In an action to set aside tlie probate of a will, evidence held, insufficient to sustain special findings by tbe jury tiiat tlie provisions of tbe will for tbe support and education of tbe testator’s son, and tbe giving of tbe residue of tbe estate and tbe amount bequeathed to tbe son, in case be should die during minority without issue, to tbe testator’s brothers were procured by undue influence. (Page 29.)
    2. Wills — Validity—“Undue Influence.” To constitute undue influence which can vitiate a will, tbe influence must be such that tbe testament is in fact tbe will of the person exercising tbe influence, and not of tbe testator. (Page 36.)
    
      3. Wills — Validity—Undue Influence — Physicial Restraint. Undue influence sufficient to avoid a will may fie established without showing any physical coercion or restraint. (Page 37.)
    4. Wills — Undue Influence — Sufficiency of Evidence — Concealment of Execution. The fact that the testator did not inform, his wife, with whom he was living happily, that he had made a will is not evidence of undue influence on the part of his brothers, where it did not appear that they had anything to do-with the concealment, or even knew of it. (Page 38.)
    5. Wills — Validity—Disposition of Property — Wisdom. The court, cannot substitute its judgment or that of the jury for the will of the testator as to the disposition of his property, even though their disposition of it may be wiser than his. (Page 38.)
    STRAUP, J., dissenting.
    Appeal from District Court, Third District; Hon. M. L-Ritchie, Judge.
    Action by Nose L. Anderson and another against Heber L.. Anderson and another.
    Judgment for plaintiffs. Defendants appeal.
    Reversed and judgmeNt directed eor the defendants,.
    
      O. E. Marks and Hurd & Hurd for appellants.
    
      D. W. Moffat and H. Van Dam, Jr. for respondents.
    
      
       Miller v. Livingstone, 31 Utah, 415, 86 Pac. 338.
    
   FRICK, J.

This proceeding is based on the provisions of Corrrp. Laws-1907, section 3796, to revoke the probate of the last will and testament of one Paul Anderson, deceased. The action was instituted by the widow of the deceased in her own behalf and also as guardian ad litem on behalf of her infant son,. Hay Anderson, of the age of three years, who, with herself constitute the only heirs at law of said decedent. The grounds upon which she sought to revoke the probate of said will were want of testamentary capacity on the part of decedent, and that the will was procured through undue influence practiced upon him by his brothers, John and Heber Anderson, the latter being named in tbe will as executor, and duly appointed as such by the court at the time the will was admitted to probate.

Iiebei’ Anderson, both as executor and in his individual capacity as a beneficiary under the will, was made a party to the proceeding, and John Anderson was also made a party as residuary legatee under the will. Heber Anderson filed an answer as executor to the petition, and he and John also filed a joint answer thereto which, after admitting the execution of the will, the death of Paul Anderson, and' the probate of said will, denied all of the material allegations of the petition.

Upon the issues thus joined, a trial to a jury resulted in a general verdict in favor of petitioners, and in special findings in which the jury found that Paul Anderson was possessed of testamentary capacity when he made and executed the will in question, but further found that certain provisions therein ■contained were procured through means of undue influence practiced upon him by his brothers aforesaid. The court sustained the special findings of the jury, and entered judgment revoking the probate of those portions of the will which the jurors found had been procured by means of undue influence, and upheld the decree admitting said will to probate in all other respects.

Heber Anderson as executor appeals, and he and John, individually, also appeal from that portion of the judgment revoking and setting aside the probate of said will. Numerous errors are assigned by appellants, but those relied on are in substance as follows:

(1) Error in overruling appellants’ motion for nonsuit at the close of respondent’s evidence; (2) error in refusing to charge the jury at the close of all the evidence that there was no evidence to sustain the finding that the will or any part thereof was procured by undue influence; (3) error in admitting and excluding evidence; (4) error in charging the jury, and in refusing to charge as requested by appellants; (5) error in rendering the judgment revoking in part the probate of the will; and (6) that there is no evidence in support of the verdict of the jury and its special finding upon the issue of undue influence. Specifications wherein the evidence is insufficient to sustain the verdict and finding aforesaid were permitted to be filed by this court at the hearing.

In view that the jury specially found that the decedent was possessed of testimentary capacity when he executed the will in question, and since no one excepts to said1 finding, we must proceed to dispose of the appeal upon the basis that the decedent was of sound mind, or that he possessed the necessary mental capacity to make the will in question. The evidence upon that branch of the case will therefore be referred to only in so far as the same may be material and relevant upon the question of undue influence.

The evidence adduced by the petitioners is in substance as follows: Paul Anderson, the decedent, and Rose L. Anderson, one of the petitioners, were married in Salt Lake City, Utah, on October 5, 1907. She was then about twenty-two years of age, 'and he was some twelve years older. Paul was ailing at the time. A very short time after their marriage they moved to Clifton, Idaho, near which place Paul and his two brothers, Heber and John, owned a sheep ranch and quite a. large number of sheep: Ray, the infant petitioner, was bom on July 23, 1908, during which year Paul and his wife moved back to Utah, to obtain, as she says, better medical care for Paul, and from that time forward they lived at Murray, Salt Lake County,' Utah. Paul was seriously afflicted with what is known as Bright’s disease of the kidneys, or what the doctors called a form of chronic nephritis. He kept getting worse until in February, 1909, he had uraemic convulsions, which were produced by the accumulation of uraemic poison in his blood which his kidneys were unable to eliminate from his system. According to Mrs. Anderson’s testimony, at about that time “P'aul said that his memory was not so good as it used to be.” She further testified that after their marriage, and up to the time he went to the hospital in May, 1909, he frequently suffered with severe headaches; that in the spring of 1909 she had a conversation with him “concerning the making of a will, and the fixing up of his property”; that he then said “it would be all right as it was,” and that be was not in favor of making a will; that in-February, 1909, Paul-was sick at bis borne, and be and the-witness intended to go to California, in tbe bope of benefiting bis health; that a few days before tbey bad intended to start Heber Anderson came down from Idaho to see Paul, and1, in tbe language of tbe witness, Heber went into tbe room where-Paul was, “and closed tbe door, and Heber was talking in a-very harsh manner to Paul Anderson, but what was said I could not bear, because be closed tbe door after be bad went into tbe room”; that when Heber came out of tbe room tbe sister of tbe witness asked him to remain for dinner, but he-said, “No,” that be was in a burry, and tbe witness said that “be looked real angry”; that within a short time after He-ber’s visit be wrote a letter to Paul, which tbe witness, without Paul’s knowledge, read; that in that letter, quoting from her memory, tbe witness said that Heber Wrote “that if Paul decided to go to any warmer climate that either Heber or John Anderson would go with him, as Heber believed tbey were tbe only ones that were interested in bis welfare anyway, and be says, ‘You shall not be neglected.’ ”

Tbe witness further testified that after that she did not see either Heber or John until a considerable time after Paul bad gone to tbe hospital for tbe purpose of having an operation performed; that be went to tbe hospital for that purpose on May 2, 1909, and tbe operation was performed on June 28th thereafter. She also testified that although she-saw her husband on tbe day tbe will bears date, yet be did1 not inform her that be bad made a will, and that she did not know that be bad made one until after bis death. It was also-shown by other evidence that a few days before tbe doctors-intended to perform an operation upon Paul, which tbey considered a serious one, Heber came to tbe hospital to see bim^ that Heber went to Mr. Marks, an attorney at law with whom he was acquainted, and requested Mr. Marks to go to the hospital to see Paul about making a will; that Mr. Marks said be could not spare tbe time to go to tbe hospital, but requested Heber to go and get memoranda or notes from Paul in which be should state tbe property, tbe devisees, and tbe disposition be desired to make of bis property, etc. Mr. Marks also says that be informed Heber that one-tbird of tbe property would :go to tbe wife, as a matter of law, in wbicb, owing to tbe ■character of tbe property, be was mistaken, but tbis is not material. Heber went to tbe hospital as directed, and on tbe same day returned to tbe office of Mr. Marks with tbe desired information. Mr. Marks then prepared what be calls a '“rough draft” of tbe will, and requested Heber to go to tbe hospital and give it to Pia,ul and have him suggest any changes he desired. Heber gave the draft aforesaid to Haul, and soon thereafter returned with it, and upon a separate sheet of paper also brought with him tbe changes Haul bad indicated, which were very few and merely minor changes. Mr. Marks then prepared the will as proposed, and after doing so he and He-ber again went to tbe hospital, and Marks then gave tbe proposed will as drawn to Haul, who read it over and suggested a change in his age from thirty seven to thirty six years. It appears that Haul was in bed at tbe time, and be and Mr. Marks were left alone in the room for about thirty minutes or longer, during which time Haul read or examined tbe proposed will. In the meantime Mr. Marks requested Heber to find some one who could witness the will with himself, and within the time aforesaid Heber returned to the room with Dr. Murphy, where Haul and Mr. Marks were waiting for them. Haul then declared tbe writing to be bis last will and testament, and asked both the doctor, whom be knew quite well, and Mr. Marks to attest bis signature by signing their names as witnesses to the will, which they did.

• The will bears date on the 27th of June, 1909, and Haul was successfully operated upon tbe day following. A second operation was performed upon him about two weeks later, after wbicb Haul improved in health somewhat and left tbe hospital some time in July and went to bis home in Murray, and a short time thereafter went to Clifton, Idaho, from whence be returned in a bad condition, again went to tbe hospital, where be died in October 13, 1909. It was also shown that Mrs. Anderson, tbe petitioner, knew little or nothing concerning Haul’s affairs or tbe value of bis property; that be 'did not discuss bis affairs witb ber, but that wben he- and sbe lived at Clifton, Idaho, be and bis brothers, Heber and John, would frequently discuss their business affairs-among themselves, but not in the presence of the petitioner. It was also shown that Mrs. Anderson bad no property when sbe married, and that sbe and Paul lived happily together. It further appears that Mr. Marks was paid for bis services in preparing the will by a partnership check made and delivered by Heber Anderson. One of the doctors also testified that one-afflicted witb a disease such as Paul was afflicted witb “might be influenced.” It was also shown that the decedent left a personal estate worth about $9,900, and also owned a one-third1 interest in the sheep ranch in Idaho already referred to; but it was not shown how much the estate was worth after the payment of debts and necessary expenses of administration, etc..

The petitioners also produced the will in evidence, which-so far as material here, is in substance as follows: The decedent directed that all of his property, except the specific devises, be converted into cash as soon as that could be conveniently done. He gave to Rose L. Anderson, his wife, one-third of all the property remaining after payment of debts and defraying the necessary expenses of administration, and in addition thereto she was given all household furniture and goods. Heber Anderson is given all the mining stocks and claims against mining companies. The infant son of the decedent is given $1,000 for care and maintenance, to be paid for that purpose at the rate of $6.25 per month to be paid from the date of testator’s death until the full amount with interest is exhausted. Said infant son is given the further sum of $4,000-, or, in case there is not that amount remaining in the estate, then the full amount remaining, which is to be paid to him when he arrives at the age of twenty one years. The testator directs that in the meantime the amount devised to said infant be invested .at interest, which interest shall be used for the purpose .of giving him a “college education in the schools of the State of Utah.” It is also provided that no part of said interest shall be paid until said infant “shall have become regularly installed in a college course for college work in some one of tbe schools of tbe state of Utah which is then giving a complete college course; and it is my will that the interest that may have accumulated on said money by said time be divided into as many parts as there are months from said time until said son has arrived at the age of twenty-one years, and that one of each of said parts be paid each and every month thereafter for said education until he arrives at the age of twenty-one years, and that the interest that may accumulate after said enrollment shall be paid annually as it accumlates after said enrollment in such school each year thereafter after the enrollment of said son in such school.” It is then further provided that in case said infant son shall die before he attains majority, without issue, “then what shall remain . . . shall go to my brothers, Ueber Anderson and John Anderson, share and share alike.” It is further provided that if said son shall die leaving issue, then what remains of his share “shall go to his issue.” The remainder of the estate, if any, is to go to his two brothers aforesaid.

After producing substantially the foregoing evidence in support of the allegations contained in the petition, the petitioners rested, whereupon appellants interposed ¡a. motion for nonsuit upon the issue of undue influence for the reason that there was no evidence in support of that issue. The court denied the motion, and appellants offered evidence in answer to that adduced by the petitioners. We shall not attempt to do more than refer to those parts of appellants’ evidence which were offered to explain the inferences which petitioners sought to draw from certain acts and circumstances, and we shall limit this statement of the evidence to such facts as were in no way questioned or disputed' by the petitioners.

• Referring to the making of the will, Ueber Anderson testified that Paul requested him to come to Salt Lake City at the time he was in the hospital and intended to have tbe operation performed; that he came pursuant to said request; that he knew nothing about Paul’s intention to make a will until informed by him, and that it was Paul who requested him to see some attorney and send him to the hospital; that Heber suggested Hr. Marks because he was acquainted with him, ,and after he saw Mlarks he did what was done because he was requested to do it by either Paul or Mir. Marks. He-ber also says the check given to- pay for Mr. Marks’ services was drawn by him at the request of Paul, and that the amount thereof was charged to Paul’s account upon the partnership books; that he made no suggestions to Paul about his will; and that he only saw P!aul once for a short time after he left the hospital and went to Idaho; that Heber advised Paul to go to Arizona because he knew that that was a drier and warmer climate than California, and he thought Paul would receive more benefit from a dry, warm climate than from a damp one, such as the climate of California is in winter. The hospital physician, who attended Paul daily during all the time that he was iat the hospital, testified that after Paul came to the hospital in May, 1909, and up to June 28th following, the treatment received by him was what is known as the eliminative treatment, which is intended to eliminate the’ poison from the system which the diseased kidneys fail to do; that Paul, on the 21th day of June, 1909, when the will was executed, was in much better physical and mental condition than he was when he came to the hospital for treatment; that at that time his mental condition was such that he could transact any ordinary business; that when the will was signed by Paul he was mentally sound, and, so far as the witness knew, labored under no restraint whatever. The testimony of Mr. Marks, so far as Paul’s' mental condition and restraint is concerned, is to the same effect. Marks further testified that before the will was signed by Plaul the provisions made for the infant-son were fully discussed, and that Paul said that, in view that he himself had not been able to obtain an education, he, so far as he could, was desirous of making provisions for the boy so he could acquire an education, and that he made that provision in the will in that form so that the boy might have money to go to school, and that when he got through school he might have something left for a start in life. It also was made to appear without dispute that the mining stocks devised to Heber had been sold for assessments, and hence were entirely lost to the estate; that after the debts of the estate were paid, and Rose L. Anderson and the son’s shares were taken out of same nothing remained; that the claims against the mining company referred to wei*e absolutely worthless, and that the two brothers could obtain no part of the estate unless the infant son should die without issue before attaining the age of majority. It was also shown that for many years the three brothers were partners in the sheep business in Idaho; that Paul was the youngest of the three, and that owing to his delicate health for the last six or eight years preceding his death he was unable to rough it or to help very much in the business, and hence the two brothers, Heber and John, took care of Paul’s interest for him. The acts and' statements attributed to Heber, as testified to by Rose L. Anderson and others, were also either denied or explained by him, but as the jury had ¡a right to believe the other witnesses as against HebePs statements we shall not refer to Heber’s testimony further. We remark that there is not the slightest evidence in the record that John Anderson ever said anything to Paul or any one else about the will, nor that he even knew any was contemplated or made.

After adducing substantially the foregoing evidence upon the subjects we have referred to, both parties rested, and appellants offered two separate requests to charge the jury, which in substance are as follows:

(1) That there was no evidence adduced to sustain a finding that the decedent did not possess testamentary capacity when the will was made, and that the jury should return a verdict upon that issue in favor of appellants; and (2) that there was no evidence upon which to base a finding that the will or any part thereof was procured through undue influ-' ence, and that the jury should find that issue in favor of appellants. The court refused the foregoing requests. The jury having found that the decedent possessed testamentary capacity at tbe time tbe will was made, tbat issue is out of tbe case.

We have attempted- to set forth with as much particularity as is possible within tbe limits of an opinion all tbe salient facts tbat were produced in evidence by tbe petitioners against tbe will. Is there anything in what we bave set forth tbat can be dignified by tbe name of evidence which in any way tends to show undue influence practiced upon tbe decedent, or from which it may legitimately be inferred that be was influenced to make any kind of a will by any one ? Is it not beyond all peradventure of a doubt that whatever inferences are permissible from Heber’s acts and conduct are just as likely to bave emanated from pure brotherly motives to assist Paul as from motives bent upon influencing him in tbe disposition of bis property in accordance with Heber’s will? One is almost shocked by tbe assertion that tbe kindly offices of one brother to another, when the latter is in distress, may, without any tangible facts, be contorted into evidence showing sinister motives. If wills can be set aside by courts upon the ground of undue influence upon proof such as is presented in this case, then any will may be assailed in any case where tbe decedent was sick for any length of time, and was so situated tbat bis immediate relatives were concerned in bis welfare and made any attempts whatever to alleviate bis suffering or to comply with his expressed wishes or requests. What is said tbat Heber did, or what is inferred be did, as shown by this record, cannot be tortured into evidence supporting tbe charge tbat be practiced undue influence upon Paul.

Tbe Supreme Court of California, in a very recent case, in passing upon tbe question of what constitutes undue influence, and in bolding tbat in tbat case there was no evidence of undue influence said:

“In the lace of this showing, which we have set forth in mere outline, there is no basis for the claim that the will was procured to be made by the undue influence of the proponent. ‘Undue influence, however used, must, in order to avoid a will, destroy the free agency of the testator at the time, and in the very act of the making of the testament. It must bear directly upon the testamentary act.’ ” In re Higgin’s Estate, 156 Cal. 257, 104 Pac. 6.

To the same effect are: Carithers’ Estate, 156 Cal. 422, 105 Pac. 127; In re Weber’s Estate, 15 Cal. App. 224, 114 Pac. 597; In re Kilborn’s Estate, 162 Cal. 4, 120 Pac. 762

Tbe foregoing oases are also directly in point upon tbe proposition tbat, where tbe evidence is as it is in tbe case at bar, it is tbe duty of tbe courts to uphold tbe will. Tbe Supreme' Court of Kansas in a very recent case (Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634, 22 L. R A. [N. S.] 1024) lays down tbe rule in these words:

“To vitiate a will there must he more than influence. It must he undue influence. To he classed as ‘undue’ influence it must place the testator in the attitude of saying, ‘It is not my will, hut I must do it.’ He must act under such coercion, compulsion, or constraint that his own free agency is destroyed. The will or the provision assailed does not truly proceed from him. He becomes the tutored instrument of a dominant mind, which dictates to him what he shall do, compels him to adopt its will instead of exercising his own, and hy overcoming his power of resistance impels him to do what he would not have done had he been free from its control.”

See, also, 1 Underbill on tbe Law of Wills, secs. 125, 128, 129, and 130. Tbe doctrine as laid down by tbe Supreme Court of California, as above indicated, is adopted and approved by tbis court in Miller v. Livingstone, 31 Utah, 415, 86 Pac. 338. Upon tbis question it should always be remembered tbat no bard and fast rule can be laid down wbicb shall control in every case. Each .ease must, to a very large extent, be determined! upon its own facts and circumstances, and in arriving at a conclusion tbe foregoing general rule should always be kept in mind.

Undue influence may be established without showing any physical coercion or constraint. Tbe influence that vitiates may be subtle and be entirely without outward demonstration, but in whatever form it may appear it must, nevertheless, be made to appear from competent evidence tbat tbe will of tbe one accused of practicing undue influence dominated the will of tbe testator — tbat tbe testament is in fact and effect tbe will of the accused and not tbat of tbe testator. There is no evidence in tbis record from wbicb any such deduction is permissible.

But it is suggested that tbe making of tbe will was concealed from tbe wife, witb whom tbe testator lived happily. Tbis, under tbe circumstances of tbis case, means absolutely nothing. See 1 Underbill, etc., sec. 131. There is not tbe slightest evidence that either Heber or John bad anything to do witb tbe concealment, if it was such, or that they even knew of it.

But it is urged that tbe will is unnatural in its provisions, and that tbe provisions for tbe infant son’s support are wholly inadequate. It is further contended that tbe devise to tbe brothers is both unnatural and unjust. What is there that is either- unnatural or unjust about that? It appears from tbe undisputed evidence that after tbe testator’s debts are paid tbe widow is given all and >a little more than all of the testator’s property which he owned apart from bis interest in tbe partnership assets. It is also shown- beyond cavil that for a long term of years tbe testator was unable to do bis portion of tbe work connected witb tbe partnership affairs. It was bis brothers, Heber and John, therefore, that cared for bis interest. Suppose they, as many brothers have done, and as they might have done, bad set Paul adrift because on account of bis failing health be was unable to do bis share of keeping tbe partnership on foot; Wha.t would have become of bis interest? Rose L. Anderson says that practically during all of their married life Paul could perform no bard labor, and that during tbe last year or two be was practically unable to do anything. Tbe two brothers, therefore, not only preserved what be bad, but through their efforts added to what be bad, if anything was added. Rose L. Anderson possessed no property at all, she says, when she married Paul, and all she now has was obtained from him. Under such circumstances why should not P'aul feel under some obligations to bis brothers ? Wherein is such conduct on bis part unnatural ? We confess our inability to see it in that light.

Recurring now to tbe provisions made for tbe infant son. Let it be conceded1, for tbe purposes of tbis decision, that tbe amount set apart for tbe support of tbe child, either before entering or after be bas entered, tbe sebool spoken of in tbe will, is small, or even inadequate. Is tbat any reason wby tbe court or jury may interfere with tbe parent’s will ? Does tbe law countenance interference with tbe will of a parent by court or jury when it denounces sucb interference by relatives and others? Apart from tbe motives involved, wbat is tbe difference between substituting tbe will of tbe court or jury for tbat of tbe testator and substituting tbe will of tbe brother for tbat of tbe testator? We confess tbat we can see no difference. In this case, in order to permit tbe verdict to stand, we must bold tbat it is proper to substitute tbe will and judgment of tbe jury for tbat of tbe father in making provision for bis son’s education and support during bis minority. Tbe judgment of tbe jury may be sounder and wiser than that of tbe father, but tbat is no reason whatever for substituting tbe judgment of tbe former for tbat of tbe latter. Tbe law of this state gives “every person over tbe age of eighteen years, of sound mind,” tbe right to dispose of bis property by will as to him seems just and right. If this right may be invaded simply because a court or jury may not be able to agree with the testator in tbe manner be bas disposed of bis property, or because be bas not made an adequate allowance for a specific purpose, then tbe right bad better be abrogated entirely. Tbe Legislature might do so, but courts cannot. We can discover no legal reason whatever for sustaining tbe finding of tbe jury tbat tbe provisions of tbe will set aside by them were procured through undue influence, or through any influence for tbat matter.

This case bas been twice tried already. If no evidence bas been produced to sustain tbe contentions of tbe petitioners on two trials, it is not likely tbat any can be produced upon a third trial. Moreover, tbe facts and circumstances surrounding tbe testator and tbe making of tbe will show tbat no other evidence than tbat which bas already been produced can be obtained. It would therefore not only be needless, but a wasteful expenditure of tbe estate’s funds to prolong this litigation. Tbe estate should be preserved for tbe widow and tbe child and not wasted in needless litigation.

In view of the foregoing, conclusions it is not necessary to pass upon the errors relating to the admission and exclusion of evidence and the alleged errors in the charge of the court and in refusing to charge as requested.

The judgment is reversed, and the cause is remanded to the district court of Salt Lake county, with directions to set aside the general verdict of the jury and the special findings made upon the issue of undue influence; to substitute therefor a finding that the will was not procured by undue influence, and make conclusions of law, and enter judgment sustaining the will and the probate thereof in all respects.

McCARTY, C. J., concurs.

STRAITP, J.

(dissenting).

I think there is sufficient evidence to support the special findings and verdict, and for that reason dissent.  