Wixson v. Nebraska Conference Ass'n , 122 Neb. 771 ( 1932 )

Leslie, District Judge.

This is an action brought by Harry Wixson, guardian of the person and estate of Amy E. Wixson, incompetent, against Nebraska Conference. Association of Seventh Day Adventists.

Briefly, it is alleged in the petition that the ward had on the 10th day of July, 1928, certain building and loan stock of the value of $3,000, which the defendant, Nebraska Conference Association of the Seventh Day Adventists, induced her to assign to it without consideration. The plaintiff claims that this $3,000 represented practically all of the ward’s estate; that she was at the time mentally incompetent to manage her business affairs, and was persuaded by undue influence on the part of the defendant and its representatives to assign and transfer the certificate of stock, representing $3,000, to said association. The defendant by its answer admits that it received the certificate in controversy, but denies that Mrs. Wixson was incompetent to enter into the contract, or that undue influence was brought to bear upon her by the association, or any of its representatives, to induce her to turn the stock over to it. The cause was tried to a jury on these issues, and a verdict returned for the plaintiff. Motion for a new trial was overruled by the trial court, and the defendant has brought the case here on appeal.

A brief statement of facts will suffice. The plaintiff’s ward, Amy E. Wixson, was at the time of the transaction involved 79 years of age, a widow, the mother of several children, a grandmother, a devout member of the Seventh Day Adventists church, and possessed of $3,000 in the Nebraska Central Building & Loan Association of Lincoln, and perhaps- $500 worth of other property.

The contract, by which conveyance was made, was prepared at the office of the defendant association at Grand Island; one of its officers submitted it to Mrs. Wixson for execution before defendant’s counsel at Lincoln, and subsequently she was escorted by the same officer of the defendant association to the building and loan association, where formal transfer was made of the stock to the defendant by Mrs. Wixson.

The record of the evidence is voluminous, but it is unnecessary to quote from it, since it is ample to sustain the verdict, assuming that the issues were submitted to the jury under proper instructions. We shall, therefore, consider the assignments of error in relation to instructions. The first of these relates to instruction No. 8 given by the court. This instruction is as follows:

“Where a person who is mentally infirm from old age and feeble of mind or diseased, and because of such condition may be easily persuaded, deals with another in whom she reposes special trust, confidence or dependence either for advice or - spiritual guidance, under circumstances which suggest an unfair advantage, undue influence or fraud, and without consideration, makes a voluntary gift or conveyance of all or nearly all of her property in an unnatural or improvident manner and without independent or disinterested advice, the law presumes that such gift or conveyance was obtained by undue influence, and the burden is upon the donee or person receiving the gift to prove by a preponderance of the evidence that the gift was fairly obtained and without undue influence and-that it was the free and voluntary act of the giver. Therefore, if you find from the evidence that the plaintiff’s ward, Amy E. Wixson, was old and mentally weak or so enfeebled by age or disease as to be readily susceptible of easy persuasion, and that she had placed trust, confi-' dence or dependence in and upon the defendant conference or its agents, officers or ministers, and that the gift, as claimed by the defendant, represented all or nearly all of the property of the ward and was so improvident and ill-advised on her part as to leave her without means of support in her old age, and that the gift was made without independent or disinterested advice, and that the gift was an unnatural disposition of her property as ignoring the rights of her family, then you are instructed that the defendant must prove by a preponderance of the evidence that the transaction was voluntary, open and fair, and that there was no fraud, imposition or undue means, and that the ward understood the nature and the consequence of her act and that it was not done through the undue influence of the defendant or its agents.”

The defendant’s contention is that this instruction does-not properly state the law, that it places the burden upon the defendant to prove that there was no undue influence, and contradicts instruction No. 2, which assumes to place the burden of proving undue influence and mental incapacity upon the plaintiff. Instruction No. 2 is as follows:

“You are instructed that in this case the burden is upon the plaintiff to prove by a. preponderance of the evidence that the defendant, some of its officers, ministers or agents acting for and on behalf of the defendant, by some act or persuasion, or because of some special trust or confidence which Mrs. Amy E. Wixson imposed in such person, unduly influenced her to make the transfer or assignment in question.”

Instruction No. 8 merely says, in substance, that if the jury find from the evidence that Mrs. Wixson was mentally so enfeebled by age or disease as to be easily susceptive of persuasion, and that she had placed trust or dependence in the defendant, and without consideration made a conveyance of nearly all of her property to the defendant without independent or disinterested advice, the law presumes that such conveyance was obtained by undue influence, and the burden is then upon the donee to rebut the presumption. We think this instruction correctly states the law.

In Gibson v. Hammang, 68 Neb. 349, the court held:

“Where a conveyance from a parent to one of several children * * * is not a just or reasonable disposition of the parent’s property, and the age and physical condition of the parent, the proportion of the property conveyed to the whole estate, and the circumstances surrounding the gift suggest * * * undue influence, * * * the burden is upon the donee to overcome the presumption of fact arising from such circumstances.”

In In re Estate of Noren, 119 Neb. 653, the court again held:

“It may be stated generally that, where a testator who is aged and infirm, with his mental faculties impaired, makes a will * * * in favor of a confidential adviser who is actively concerned in the execution thereof, and who receives * * * valuable property or rights under the will, there arises a presumption of undue influence, and * * * it devolves upon the beneficiary to overcome the presumption * * * by competent evidence sufficient for the purpose.”

The rule announced in the foregoing cases has been consistently adhered to by the courts of this state and a majority of the other states. In some states it is held that, where a person of extreme age donates property to one in whom the donor has trust and confidence, lack of independent advice alone is sufficient to cast the burden upon the donee to prove that undue influence was not exerted to induce the donor to make the donation.

It is not necessary to discuss other assignments of error, as they relate largely to the refusal of the court to give certain instructions tendered by the defendant, and we are of the opinion that the instructions given by the court were sufficient.

Finding no reversible error, the judgment of the trial court is

Affirmed.