Kindt v. Parmenter , 83 Okla. 116 ( 1921 )

This is an appeal from the action of the district court of Comanche county in affirming the action of the county court in admitting to probate the last will and testament of Abraham Kindt, deceased. By the terms of his will Mr. Kindt, the testator, bequeathed all his property, real and personal, to the First Church of Christ Scientist of Lawton, of which he was a member. The will further directed that the real estate bequeathed be converted into cash when market conditions assure a fair price, and that the proceeds be used to purchase a site for a church costing not to exceed $2,000, and for the erection thereon of a Christian Science church for the use of the congregation of which he was a member. This will was executed on the 30th day of September, 1912, more than three years prior to the death of the testator, while he was in good physical health and sound and disposing mind. It was drawn by B.M. Parmenter, who had been acting as attorney for the deceased for six or seven years prior to his death. The will named B.M. Parmenter, W.E. Hudson, and Chas. E. Myers, who were also Christian Scientists, as executors. The deceased was an unmarried man and left no immediate family; his sole surviving kindred being two brothers, one 80 years old and the other 78 years old, the deceased being 69 years old at the time of his death. In due time the will was presented for probate to the county court of Comanche county, and one of the brothers of the deceased, Josiah Kindt, filed a contest on two grounds, to wit: (1) That the deceased did not have testamentary capacity at the time of the execution of the will; (2) that he was unduly influenced in the execution thereof by B.M. Parmenter, W.E. Hudson, Chas. M. Myers, and other influential Christian Scientists in Lawton, Oklahoma.

This contest was decided adversely to the contestants, and after the will had been admitted to probate by the county court, Josiah Kindt, the contestant, and Henry Kindt, the elder brother, who up to that time had not been a party to the contest proceeding, both gave notice of appeal to the district court. Upon the cause coming on for trial de novo, the district court submitted two questions of fact to the jury for determination, which questions, together with the answers of the jury thereto, were as follows:

"(1) Question: At the time the said Abraham F. Kindt executed the will in controversy, was he acting in the execution of said will under undue influence? Answer: Yes. (2) Question: At the time the said Abraham F. Kindt executed said will, did the said Abraham F. Kindt have testamentary capacity? Answer: Yes."

Upon motion of the proponents of the will the trial court set aside the findings of fact of the jury on the first question submitted and found as a fact that the said testator, Abraham F. Kindt, was at the time of the execution of said will free from undue influence. Thereupon judgment was entered sustaining the will, to reverse which this proceeding in error was commenced.

As counsel seem to accept as final the findings of the jury and the action of both trial courts on the first ground of contest, viz., that the deceased did have testamentary capacity at the time of the execution of the will, but one question remains for our consideration, and that is whether the finding of fact of the trial court that the said testator, Abraham F. Kindt, was at the time of the execution of said will free from undue influence, was sufficiently supported by the evidence. It is well settled in this jurisdiction that on appeal to the district court from a judgment of the county court admitting a will to probate the former court may, in its discretion, make an order for a trial by jury of any or all the material questions of fact arising upon the issues between the parties. But in such case the verdict of the jury will be merely advisory to the court, and he may adopt or reject their conclusions, as he sees fit; for the whole matter must eventually be left to him to determine. Parker v. Hamilton,49 Okla. 693, 154 P. 65.

It is equally well established that the findings of fact of the trial court in a suit of equity will not be set aside on appeal, unless it appears that they are clearly against the weight of the evidence.

Counsel for plaintiffs in error concede the applicability of these rules to the case at bar, but say that under the rules laid down by this court in Gidney v. Chapple, 26 Okla. 737,110 P. 1100, the findings of the trial court on the question of undue influence are contrary to the clear weight of the evidence and should be set aside —

"(1) Because Mr. Parmenter stood in the relation of attorney and almost that of spiritual adviser, fiduciary relations of the highest trust, and he is the executor and the Scientist Church the sole beneficiary, and under such circumstances the law indulges the presumption that undue influence was used in the procurement, and the burden is upon the proponents to show to the contrary."

"(2) Because the will is unnatural, in that it disinherits all blood relatives, leaving the entire estate to strangers; and

"(3) Because the universal maxim of the law treats one who writes himself the heir as lending suspicion to the writing."

We are unable to perceive very much, if any, analogy between Gidney v. Chapple, supra, and the case at bar. Gidney v. Chapple was commenced by Chapple for the purpose of setting aside an instrument purporting to convey whatever interest he claimed in his deceased mother's estate to Gidney, who was her attorney and the beneficiary of her will, which it was alleged was obtained by fraud, the fraud consisting in Gidney concealing certain facts from Chapple which he was bound to disclose before dealing with him in reference to his interest in his mother's estate. It seems that Mrs. Rawlings, the mother of Chapple had made a will, drawn by Gidney, in which she practically disinherited her son and made Gidney her beneficiary. Gidney, for the purpose of avoiding a contest by Chapple, purchased the interest of the latter in the estate of his mother for a nominal sum. In this transaction Gidney conveyed certain information to Chapple calculated to influence his conduct therein, but concealed from him the true condition of the estate. The will and the circumstances under which it was made were shown in evidence in support of the allegation that the execution of the will and obtaining the conveyance in question were part and parcel of a scheme to defraud Chapple out of his interest in his mother's estate. The Supreme Court, affirming the judgment of the trial court, held that, although a party may keep absolute silence and violate no rule of law or equity, yet, if he volunteers to speak and convey information which may influence the conduct of the other party, he is bound to discover the whole truth. A partial statement then becomes a fraudulent concealment, and even amounts to a false and fraudulent misrepresentation.

It is true that the court in the body of the opinion discussed the rule applicable to proving wills where a confidential relation between the testator and legatee was shown to exist, and announced the rule that whenever it appears that a will was executed through the intervention of one occupying such favored relation to his especial advantage, the presumption of undue influence arises and the suspicion must be put to rest by evidence adduced to sustain the validity of the will by showing it to be a free and voluntary act of the testator. From a careful examination of the record, we are convinced that the case at bar is not governed by this rule. As we view the record in the case at bar, there was no serious conflict in the evidence on any material point. It discloses substantially the following state of facts: The testator at the time the will was made was a man of more than ordinary intelligence and in the full enjoyment of good mental and physical health. By intelligent and frugal management of his business affairs he had accumulated considerable property and money, of the value of about $20,000. He was a devoted member of the Christian Science church, and frequently told his friends and neighbors, both before and after the execution of his will that he was going to leave his property to the church, his reason for doing so being that he felt grateful to the church for its help and he desired to give his property to the church, where it would do the most good for humanity.

The testimony of Mr. Walthal, which was typical of many other disinterested witnesses on this point, was as follows:

"Yes, sir; I have heard him express himself a number of times that inasmuch as he felt so grateful for what Christian Science had done for him he expressed himself as anxious of having his property go where it would do the most good to the greatest number of people."

Another witness, Mr. Boggs, testified as follows:

"Mr. Kindt talked to me about his own help in Christian Science; he seemed very grateful for it. He told me he had already willed his property to the church in case of his death. His reason for doing so, he said, was, he felt grateful for his help in Science, and he desired to give it to the church, where it would do the most good for humanity."

Mr. Parmenter, who had been Mr. Kindt's attorney for some seven or eight years prior to the execution of the will, was also a prominent member of the Christian Science Church. There was evidence to the effect that Mr. Kindt imposed the utmost confidence in Mr. Parmenter, many times expressing admiration for him both as a lawyer and a fellow churchman. Outside of this there was no testimony whatever tending to show undue influence on the part of Mr. Parmenter.

The testimony of Mr. Parmenter, which was undisputed, shows what occurred at the execution of the will, as follows:

"Q. Who gave you the instructions with reference to what was to go in the will? A. Abraham F. Kindt. Q. Did anyone else, to your knowledge, give any instructions with reference to it? A. No, sir. Q. Was there anything put in the will except as Mr. Kindt instructed you? A. No, sir."

Cross-examination by Mr. Stevens:

"Q. How long was the will being prepared? Over what period of days did it extend between the time its preparation began and the time it closed? A. My recollection is he came in and told me what he wanted and I took a slip of paper from my desk and noted it, and then told him to come back after a while and I would have it drawn off; I then dictated it to my stenographer, and he came back after a little and it was signed up."

Recurring again to the ground for reversal hereinbefore set out, it is fairly obvious from the foregoing brief resume of the evidence that the rule referred to in the Gidney Case is not applicable to the case at bar for several reasons. Although it was shown that Parmenter was a trusted attorney and legal advisor of Mr. Kindt and a prominent member of his church, he was not a beneficiary in the will, and this, coupled with the fact that he was named as executor, was not sufficient to raise a presumption of undue influence. Livingston's Appeal,63 Conn. 68; In re Kilborn's Estate (Cal.) 120 P. 762. The same authorities support the proposition that the rule under which undue influence is inferred from a confidential relation between the testator and the person charged with procuring the will, has no application where such person took nothing under the will. The situation disclosed by the testimony was not new or novel or in any way extraordinary or unnatural. Kindt was a devoted member of his church and very grateful to it for the benefits he had received from its ministrations. He was a bachelor with no direct descendants depending upon him for support and maintenance and no near kinsman except his two brothers, older than himself, one of whom has since died and both of whom were in fair circumstances financially. His conduct in willing his property to his church in these circumstances, where, as he says, he thought it would do the most good for humanity, seems to us to be entirely sane, normal, natural, and commendable. And the same may be said of his relations with his lawyer, Mr. Parmenter. It is not remarkable for attorney and client to be members of the same church, nor that this dual relation begets trust and confidence between the parties. On the contrary, it is quite usual and common. Mr. Parmenter had been Mr. Kindt's lawyer for seven or eight years before the preparation of his will, and it would have been strange indeed if he had employed another lawyer for the purpose of preparing his last will and testament. Aside from the existence of the relations just stated, there is not a scintilla of evidence in the record tending to show that Mr. Parmenter exercised any undue influence over Mr. Kindt in the matter of the preparation of his will. Indeed, the direct evidence is all to the contrary. As related by Mr. Parmenter in his testimony hereinbefore set out in full, the transaction was one of the most ordinary and simple that could possibly occur between attorney and client. There can be no pretense that there was any direct evidence of any undue influence exercised by Mr. Parmentor or any other person over the testator at the very time of the execution of the will or prior or subsequent to that event which could affect his testamentary act. Moreover, as the will was executed two or three years prior to the testator's death, he had ample opportunity for reflection and to change his will if he so desired. To all appearances, and as far as the circumstance and proof show, he was acting with perfect freedom and following his own wishes.

While counsel for the respective parties have cited a great many authorities, there is no great difference between them on any fundamental question of law. In these circumstances, and in view of the fact that we find the precise question involved fully and satisfactorily considered and discussed by this court in several cases, we do not deem it necessary to review at length the authorities cited from other jurisdictions.

In Cook v. Cook et al., 71 Oklahoma, 175 P. 507, the testator was the mother of the beneficiary in the will. The will was contested by the wife and child of the testator upon the ground:

"That at the time of making said will the said William Nye Cook was under undue influence, the same being exercised by Mary Cook, his mother, who is the chief beneficiary under the said will, and also other members of his family who were present during his last illness."

Upon the trial the confidential relation between the testator and beneficiaries was shown, but aside from this there was no evidence of undue influence, all of the direct testimony being to the contrary. The trial court found there was sufficient evidence to establish undue influence, and held in favor of the contestants. In reversing this ruling this court says:

"We are wholly unable to find from this evidence any justification whatever for refusing the will probate. Undue influence, such as will invalidate a will, must be something which destroys the free agency of the testator at the time when the instrument is made, and which, in effect, substitutes the will of another for that of the testator. It is not sufficient that the testator was influenced by the beneficiaries in the ordinary affairs of life, or that he was surrounded by them and in confidential relations with them at the time of its execution. Mere general influence, not brought to bear on the testamentary act, is not undue influence; but, in order to constitute undue influence, it must be used directly to procure the will, and must amount to coercion destroying the free agency of the testator. Mere suspicion that undue influence was brought to bears is not sufficient to justify the setting aside of the will. Estate of Keegan, 139 Cal. 123, 72 P. 828; McCullock v. Campbell, 49 Ark. 367, 5 S.W. 590; Westcott v. Sheppard, 51 N.J. Eq. 315, 25 A. 254, 30 A. 428.

"It is true from the nature of the subject that proof of undue influence is necessarily largely or wholly circumstantial, and the contestant is not confined to the facts which he may be able to adduce, but is entitled to all the natural inferences which may be derived from established facts. But the will of a person found to be possessed of sound mind and memory ought not to be set aside on evidence tending to show only a possibility of undue influence. The express intentions of the testator should not be thwarted without clear reason therefor. The right to make a will includes the right to make it according to the testator's own desires, subject only to the statutory restrictions. Unequal or unnatural provision's in themselves raise no presumption of undue influence. They may be considered with other evidence in determining the question, is this the testator's will? but they do not shift the burden of proof, and, in the absence of proof that undue influence has been exercised, they have no weight. If the will is expressive of the testator's wishes, lawfully made, the opinions of other persons, however they may condemn its motive or disapprove its scheme, cannot, in any way, rightfully control his power to do with his own as he pleases, without impairing one of the incidents which give to every man's property its value. In our judgment there was absolutely no evidence adduced at the trial tending to show that, whatever influence Mary Cook or the members of her family may have had over the testator, it was ever exercised for the purpose of procuring a will of such a kind as to be beneficial to her and to the prejudice and disappointment of others."

Gleason et al. v. Jones, 79 Okla. 191, 192 P. 203, is another case in point, although the undue influence alleged arose out of an entirely different confidential relation. The testator at the time the will was executed was engaged in conducting a bawdy house, and she bequeathed her property to two inmates of the place who were present when the will was drafted. The trial court found that, while there was no direct evidence that the will was made at the suggestion of either of the beneficiaries, the mere fact of the existence of the relation and the presence of the beneficiaries was sufficient evidence to establish undue influence. This court, after citing the Cook Case, supra, with approval, reversed the judgment of the trial court, holding that:

"A devise to one associated with testatrix in an immoral environment and the presence of the devisee in the room where testatrix was instructing her lawyer as to the disposition she wished to make of her property, the lawyer being at the time engaged in drafting the will, would not, because of the immorality of the association or the presence of the devisee, standing alone, give rise to an inference of undue influence exerted by the devisee over the testatrix."

While there are other assignments of error argued by counsel for plaintiffs in error, such as error of the court in admitting incompetent, irrelevant, and immaterial testimony; error in setting aside the verdict of the jury finding that at the time the said Abraham F. Kindt executed the will in controversy he was acting under undue influence; error in certain findings that were made by the trial court, etc. — we do not deem it necessary to notice them in detail.

It is sufficient to say of the errors of this class complained of that we have examined the record carefully, and find them to be either without merit, or that they are harmless under section 6005, Rev. Laws 1910, which provides:

"No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right."

While it is true that the trial court allowed both parties the greatest latitude in the matter of the introduction of evidence, and also made elaborate findings of fact and conclusions of law, some of which may have been unnecessary, the controversy centered around the narrow, pivotal ground of contest relied upon by the plaintiffs in error, to wit: That the testator was unduly influenced in the execution of his will by B.M. Parmenter, W.E. Hudson, and Chas. E. Myers, and other influential Christian Scientists in Lawton, Oklahoma.

As we find no evidence whatever in the record tending to support this allegation, the trial court was clearly right in setting aside the finding of the jury thereon and affirming the judgment of the county court admitting the will to probate.

It is contended by counsel for defendants in error in their cross-petition in error that the trial court erred in taxing the costs against the estate of Abraham F. Kindt, deceased. It appears that when the judgment in favor of the proponents of the will was first rendered the trial court taxed the costs against the contestants, but later, upon overruling the motion for a new trial, the former judgment was modified by taxing the costs against the estate. Counsel for defendants in error admit that under the governing statute, which is declaratory of the general rule applicable to suits in equity, the trial court had the right, in the exercise of a sound discretion, to tax the costs against the successful party.

In the original opinion handed down, while we affirmed the judgment of the trial court upon the merits, we reversed the part thereof taxing the costs against the estate upon the ground that no sufficient reason for such action was made apparent to this court. Upon further careful examination of the record, upon petition for rehearing, we are convinced that the trial court did not abuse its discretion in taxing the costs against the estate.

For the reasons stated, the judgment of the court below is affirmed in toto and the case remanded with directions to enter judgment accordingly.

HARRISON, C.J., PITCHFORD, V. C. J., and MILLER, ELTING, KENNAMER, and NICHOLSON, JJ., concur; McNEILL, J., dissents; JOHNSON, J., disqualified, not sitting.