Myers v. Myers , 130 Okla. 184 ( 1927 )

This is an appeal by the proponents of the will of John B. Myers, deceased, from a judgment of the district court of Pawnee county denying probate of the will upon the grounds of want of testamentary capacity, fraud, and undue influence.

In the trial before the county court of Pawnee county, the will was admitted to probate. On appeal to the district court the will was denied probate on the grounds as above set out.

We have made a thorough examination of the facts in this case, which are substantially as follows:

John Myers and his wife, Maye Myers, were married about the year 1901, at the ages of 26 and 23, respectively, at which time neither of them was possessed of any large estate, each owning about $5,000 worth of property. By their united efforts they accumulated a fortune of something over $300,000, most of which was accumulated during their married life. About $50,000 was inherited by John Myers from his father's estate and some property was inherited by Mrs. Myers, the exact amount of which is not clearly disclosed. The property belonging to Mrs. Myers, however, was transferred by her to John Myers for the reason that it could be handled better in this way.

John Myers departed this life on the 30th day of December, 1923, without issue. On the 26th day of November, 1923, he made a will disposing of his estate in the following manner: To the widow, Maye S. Myers, was given the homestead at Cleveland, the automobile, household goods and furniture, and one-third of the remainder of the estate; to Walter Myers, brother of the testator, two-ninths; to May Cox, sister of the testator, two-ninths; and to two nieces, daughters of a deceased sister, one-ninth each. Maye S. Myers, widow, and Walter D. Myers, a brother, were made joint executors of the will without bond.

The testimony shows that the relationship between the testator and the contestant, Maye S. Myers, was at all times during their life very friendly and that of devoted husband and wife. The two brothers, John and Walter, had also been devoted to each another, associated together in many business transactions, interested in several banks, and often discussed business matters together. The testator had also shown himself to be devoted to his sister, May Cox, and to the two nieces of a deceased sister; had helped in the schooling of the two nieces and shown concern in the material welfare and happiness of the brother, sister, and nieces; had often advised them about business matters and shown at least a natural, if not an extraordinary, interest in all of them.

John Myers was president, and in fact the general elected manager, of the First National Bank at Cleveland for many years prior to his death, and was a hard-working, industrious, and capable business man.

During the summer of 1923, John's health began to fail with a disease known as cirrhosis of the liver. During the months of August and September, especially, many witnesses testified, he slowed up in business, that he did not have the pep he once had, and that he was seen at his desk many times in a drowsy condition. He went to a hospital at Sand Springs during the latter part of the summer and an operation known as tapping was performed, at which time several quarts of fluid were taken from him, after which he returned to the bank, and, while he did not spend all of every day in the bank, he remained in active charge and control of the bank until by an agreement apparently reached between Walter, Maye Myers, and himself — he was taken to the hospital at Wichita, Kan., on the 6th day of November, 1923. He remained constantly in his bed until the 18th day of November, on which day Walter (who lived at Alva, Okla.) visited him and, according to Walter's testimony, John approached him about making a will and asked Walter to have the will prepared for him. Walter then went to an attorney in Wichita, Kan., and consulted with him about making the will. The attorney seems to have been recommended to Walter by the officers of the First National Bank at Wichita, the president and cashier of which bank both Walter and John had known practically all their lives. All of them, that is, Walter, John, and the two officers of the First National Bank at Wichita, had formerly lived at Elk City, Kan., during their boyhood days.

According to Walter's testimony, the attorney at Wichita advised him that he would charge him $35 for making the will, and he informed the attorney that he would have to take the matter up with John; and after talking with John about it, John said that was too steep and asked Walter to have his attorney in Alva, Okla., draw the will. The testimony of the attorney at Wichita is, in substance, that after his conversation with Walter he was informed that his price was too high, and at that the conference ended.

At any rate, Walter testifies that in his conversation with John on the 18th day of November, John informed him that he wanted his property divided, one-fourth to his wife, one-fourth to his sister, one-fourth to Walter, and one-eighth each to his two nieces; that he (Walter) returned to Alva and after consultation with Mr. Chase, his attorney at Alva, he prepared the will in accordance with John's request, with the exception that on the advice of his attorney one-third was given to Maye S. Myers, because the law would not permit a husband to will away more than two-thirds of his property, but with this exception the will was prepared exactly as requested by John.

Walter returned to Wichita, Kan., on the 25th day of November, which was Sunday, and visited John in the hospital on that day. During the day, according to Walter's testimony, John asked him if he had the will prepared. These conversations were had out of the presence of Mrs. Myers or any one else.

At the time John was brought to the hospital, Mrs. Myers came with him, and remained with him constantly until his death, rooming right across the street from the hospital, and staying at the hospital at all times the hospital rules would permit, with the exception of taking time for meals and a little recreation. Mrs. Childs, a friend of the family and an intimate friend of Mrs. Myers, also came to Wichita a few days after John was taken there, and stayed with Mrs. Myers continuously until John's death.

After the 18th day of November, John was able to be out of his bed and walked around the hospital, took automobile rides and street car rides, and apparently, from the testimony, enjoyed these trips. According to Walter's testimony, John read the will on the 25th of November, and on the 26th mentioned the will again and asked Walter to go with him to the First National Bank at Wichita to have the will executed. While Mrs. Childs and Mrs. Myers were absent from the room it appears that John was dressed by the aid of Walter and just as they were about to leave the room Mrs. Myers and Mrs. Childs came in and asked them where they were going, to which Walter replied that they were going for a street car ride.

They did go on the street car to the First National Bank at Wichita, where, according to Walter's testimony and that of the witnesses to the will, John requested three of the officers and employees of the First National Bank to witness his will, at which place he signed the will in the presence of three witnesses, all of whom signed the same as witnesses.

After the will was executed, John and Walter remained in the bank for some time — not long — and talked over general matters with the officers of the bank, old-time friends of both Walter and John, and from the testimony of these witnesses, John was apparently in poor health, a very sick man, but his mind was clear and he was perfectly capable, according to these witnesses, of transacting business and executing a will.

After their return to the hospital from the bank, John appeared very weak and exhausted; the testimony showing, however, that on the next morning, the 27th, a minor operation known as tapping was again performed, and it appears that just prior to any of these tappings John was much more exhausted than at any other time.

In all of these conversations regarding the will, it appears that John and Walter talked the matter over personally without allowing any one to hear them, and that Walter was seen sitting by the side of the bed talking in low tones to John on the day the will was signed and also the day before. After their return from the First National Bank, where the will was signed, Walter told Mrs. Myers, in reply to a question as to where they had been, that they had taken a street car ride and walked about a block and returned. He also told the nurse the evening after the will was executed that if John got worse and it was necessary to call Mrs. Myers, to call him also. Mrs. Myers was called during the night, but Walter was not, and the nurse said Walter remonstrated with her for not calling him.

It appears from all the testimony that the making of the will and the discussions concerning same were intentionally kept from the knowledge of Mrs. Myers. This, however, according to Walter, was at the request of John.

After the will was executed — according to the doctors and others — John gradually grew worse from a physical standpoint. But it also clearly appears that he was able for two or three weeks to be up and walk around the hospital during at least part of the day; was able to take automobile rides, receive old friends, talk with them generally about business matters, dictate letters to the officers and employees of several of his banks, giving them instructions, which letters were written by Mrs. Myers, but dictated by John. On the day after the will was executed he was able to go on an automobile ride with his niece's husband, and as late as December 6th, Mrs. Myers wrote a letter in which she said that the doctors had informed her that John would perhaps live several years, that he was able to take at least two walks about the hospital on that day and had been able to take automobile rides and enjoyed the same.

The day after the will was executed, Walter returned to his home in Alva and did not visit John any more than he had been accustomed to before the execution of the will, which was about two days in each week. Mrs. Myers was with John continuously, and other witnesses, old friends of the family who had visited John during this time, testified that he was in good mental condition and they could see nothing wrong with his mind at all. There is testimony, however, that he was drowsy a part of the time during this period and that he did not enter into conversations, but only talked when he was approached. However, about three weeks after the will was executed and some two weeks before he died, he went into a complete state of unconsciousness, in which he remained until his death.

Some two or three years before his death he took out life insurance, $3,000 payable to his wife, $2,000 to his sister, $2,000 to Walter Myers, Jr., son of Walter Myers, and $1,000 each to his two nieces. It appears that he did not tell any one about his taking out this insurance except Walter, whom he told at the time he made the will; but that his wife, sister, and nieces were ignorant of this fact at the time of his death.

However, some two or three years before his death he had been heard to make a statement to the effect that he did not expect to make a will at all, for the reason that the lawyers would perhaps get it if he did, or if he did not, and that his wife would get most of the property any way.

After his death he was returned to Cleveland for burial and at the funeral Mrs. Myers stated she asked Walter about the will and he told her he did not know anything about it. She also stated she asked him about it a time or two thereafter and wrote to him at Alva on about the 7th of January asking him if he knew of a will, but that she did not receive a reply to her letter. Walter, however, denies her asking him about the will, but says that he received the letter, and the reason for not answering it was that he was going to Cleveland to attend a meeting of the bank directors, at which time he told her she could find a copy of the will in the clerk's office at Pawnee. Walter had had the will filed for probate by his attorney, Mr. Chase, in Pawnee, on about the 7th day of January, 1924.

The will was executed in duplicate and both copies were given to Walter by John, according to Walter's testimony, and he took both copies of the will to Alva and placed them in his bank. According to John's instructions, Walter was to keep them until John was able to return to Cleveland, at which time he was to send one to John, and if anything happened to John that Walter was to file the will with the county judge at Pawnee, Okla.

There were several doctors who testified in the case that the disease John had would cause a mental deterioration, and others that it would not.

Walter Myers testified that he never at any time suggested the making of a will; that after John approached him about it he never even suggested how a will should be made nor exerted any influence of any nature whatsoever over John, with the sole exception that he did tell him that his attorney had advised that he must give at least one-third of his property to his wife, as the law required him to do so, and to this John readily assented.

All of the parties to this case, according to the testimony, are in reasonably good financial circumstances; Walter being worth practically as much as John, and the sister and two nieces very well fixed financially. According to the widow's own testimony, she was left with practically $100,000 besides the household goods, the homestead, and an automobile. The rest of the estate was divided among the other heirs. The brother, sister, two nieces and the wife were the only close relatives of John Myers at the time of his death, as he died without issue. Walter said John told him he did not want any property to go to Mrs. Myer's people. There was no provision in the will regarding the property held in the name of John which really belonged to Mrs. Myers.

There is evidence to the effect that before leaving Alva to go to Wichita, at the time the will was executed, Walter wrote a letter to his daughter and son-in-law and that they arrived in Wichita on the day the will was executed, but a few hours after John and Walter had returned from the bank. There is no testimony as to what the letter contained and the son-in-law denied that the will was even suggested in the letter.

The testimony shows that as late as the 19th day of December, 1923, John Myers, at the request of his wife and Walter Myers, signed a resignation as president of one of the banks in which he was interested.

There is no intimation by the testimony, nor any contention on behalf of any of the parties, that any one attempted to exert undue influence over John Myers, with the exception of Walter Myers.

The record in this case is very voluminous, but we are convinced that the evidence clearly shows that the will was executed and published in due form as required by the laws of the state of Oklahoma, and that the testator possessed sufficient mental capacity to execute said will.

The only remaining question necessary for determination is whether or not at the time of the execution of said will the testator was free from undue influence which it is alleged was exerted over him by Walter Myers, one of the beneficiaries, who was present at the execution of said will.

In trying to arrive at a correct solution of this question, the first proposition is to determine what is undue influence. While numerous authorities are presented in briers for both sides, it seems to be practically admitted that the definition of undue influence has been clearly set out by our Supreme Court in many cases.

In the case of In re Cook's Estate, 71 Okla. 94,175 P. 507, the syllabus, as well as the body of the opinion, clearly defines the general rule (p. 96 of opinion) as follows:

"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 bear is not sufficient to justify the setting aside of the will."

The above proposition has been consistently followed by this court in many cases, among which are the following: In re Will of Swartz, Gleason et al. v. Jones, 79 Okla. 191, 192 P. 203; Kindt et al. v. Parmenter et al., 83 Okla. 117, 200 P. 706; Nelson et al. v. York et al., 87 Okla. 210, 209 P. 425.

It is admitted in this case that this is an equitable proceeding and that the burden of proof is upon the contestant, after the proponents of the will have shown that the will was properly executed and that the testator was of sufficient mental capacity to execute the will. And it seems, also, to be practically admitted and quite generally established that, where undue influence is one of the grounds for the setting aside of a will and a person assists in the preparation of same and is present at the time of its execution and is a beneficiary under the will, and other beneficiaries are excluded from the presence of the testator and a confidential and fiduciary relationship exists, the presumption of undue influence arises which calls for a careful scrutiny by the court, and the burden is upon the proponent to show the absence of undue influence.

In the case at bar, Walter Myers certainly assisted in the preparation of the will, was present at the time of its execution, and the other beneficiaries, including Mrs. Myers, were not present at the time the will was executed. So the question of whether or not a confidential and fiduciary relationship existed between Walter Myers and the testator becomes an important factor in this case.

It is contended by the proponents that no confidential relationship existed. It is true that blood relationship by itself is not enough to establish a confidential relationship. Reeves v. Howard (Iowa) 91 N.W. 896; Westergreen et al. v. Beer et al. (Cal.App.) 145 P. 543; Leedom et al. v. Palmer et al. (Pa.) 117 A. 410.

It has even been held that the relationship between father and son is not necessarily a confidential relationship. Dick v. Albers et al. (Ill.) 90 N.E. 683. Neither will natural affection alone constitute confidential relationship as it is known in law. Komp v. State (Wis.) 108 N.W. 46; In re Logan Estate (Pa.) 45 A. 729. Neither will mere confidence in business associates, standing alone, create this relationship. Inge v. Stillwell (Kan.) 127 P. 527; Barrett, Sheriff, v. Prince, 143 Fed. 302; Crawford v. Burke, 49 L.Ed. (U.S.) 147.

However, in the case at bar we have blood relationship together with natural affection and evidence of confidence in a business was existing between these two brothers at the time the will was executed. But there seems to be no testimony that the testator relied upon the business judgment of his brother, Walter Myers, nor sought out his advice and counsel before acting upon matters of importance to himself. The relationship appears, from all the testimony, to be that of two brothers, both successful in business, having a natural brotherly affection one for the other; but if any difference, Walter relying more upon the business judgment of the testator than the testator did upon that of Walter.

It is contended by the defendant in error that the proponents of this will cannot raise the question in this court, for the reason that the case was tried in the lower court upon the theory that a confidential relationship existed. But, after a careful examination of the record, we are inclined to believe that, while they may have contended that the will should stand, even though a confidential relationship did exist, they never at any time admitted in the trial court the existence of a confidential relationship such as is known in law.

We, therefore, conclude that under the circumstances in this case there was not such a relationship existing between the brother and the testator that would necessitate, under the facts in this case, an absolute shifting of the burden of proof. But it is sufficient to cause the court to be vigilant and zealous in examining the evidence to determine from all the testimony whether or not in truth undue influence was exerted.

It must, of course, be admitted that Walter Myers and the testator had a natural personal affection for one another; that they often discussed business, were interested in different enterprises, and were interested in each other's welfare; that Walter Myers had his attorney prepare the will, but from his testimony this was done at the suggestion of the testator. It is clear that the contents, as well as the preparation and execution of the will, were intentionally concealed from Mrs. Myers, the wife, not only before but after the death of the testator, until the will was actually filed for probate. This, however, according to uncontradicted testimony, was at the suggestion of the testator. There is evidence to the effect that about two years prior to the execution of the will the testator had indicated an intention never to execute a will. And while we believe that under our law this was competent testimony tending to show there was a possibility of undue influence, yet, under all the other facts and circumstances, and remembering too that at the time he made a statement that he never expected to make a will and that he further said in substance that it made very little difference whether a will was made or not, this declaration has very little force and effect.

While all these facts and circumstances might throw some cloud upon the action of Walter Myers, and his action in these matters may not be approved or might even be condemned by a large percentage of mankind, yet, owing to the fact that there is not even an intimation that Walter Myers ever so much as suggested to the testator the making of a will; that he only visited his brother two or three days each week while he was ill in the hospital at Wichita; that after the will was executed the testator maintained mental capacity for at least three weeks and on the 6th day of December (ten days after the execution of the will) was able to walk around the hospital, take several automobile rides, talk with old acquaintances about general matters, including business affairs, dictate letters addressed to the officers and employees of the business institutions in which he was interested; and the further fact that Mrs. Myers during all this time was constantly at his side, appears to us as almost conclusive evidence that no undue influence was exerted.

According to Mrs. Myers, on December 6th (ten days after the execution of the will), the testator was in such a condition that the doctor had informed her he would perhaps live many years. Under all these circumstances, it seems to us that the testator had ample opportunity to revoke his will if it was not in accordance with his wishes, that during at least three weeks after its execution he possessed ample mental capacity to have known and remembered the execution of the will and could have informed his wife about its provisions, had he so desired. Walter Myers took no more under the will than any other relative similarly situated. It is true he took more than he would have under the law had no will been executed, but he was not favored over his sister and two nieces. The property was disposed of under the will in about the same ratio as the benefits under the life insurance policies which the testator had several years before taken out for the benefit of the beneficiaries under this will. He had adopted the same policy at the time he took out the life insurance, which indicates how he expected to distribute his estate, and in addition thereto it indicates that he did not expect to inform his wife or the other beneficiaries of the distribution of his estate, as he did not tell them about the insurance.

The proponents in their brief discuss many propositions under separate headings, such as the mental capacity of the testator so as to expose him to undue influence by designing persons; physical weakness, as to its effect upon undue influence; the natural affection and kindly administration of the beneficiaries under a will; the effect of circumstances; whether or not the will is a natural or just will; suggestion from Walter Myers as to change of the will in order to be according to law; keeping the will a secret; failure to revoke the will, and several other propositions under separate and distinct heads, and cite numerous authorities showing that each of these different propositions is not sufficient in itself to set aside a will.

However, we believe, as contended by contestant, that each of these propositions is overlapping and interwoven in such a manner that it is not possible, nor proper, to consider each separately. But all of the facts and circumstances taken together should be considered in arriving at a true and proper finding of this case.

After a careful consideration of all the facts and circumstances, we are of the opinion that at the time of the execution of this will the testator was not acting under undue influence, as defined by this court, and that the will should stand. We may not approve of the action of Walter Myers in not informing the widow of the execution of the will and evading the question every time it was presented to him. This is the strongest circumstance, in our opinion, which contestant claims indicates undue influence. But, as shown by the record in this case, the testator being a man of strong mental capacity, with a sincere affection for all of his relatives, including his wife, brother, sister, and nieces, and being, as we have found, mentally competent to make a will, any suggestion from Walter indicating he desired any special benefit under the will would, in our opinion, have met with a rebuke rather than an acquiescence on the part of the testator.

We are not unmindful of the rule established by a long list of authorities in this and other states that in equity cases "the finding of the trial court should be sustained unless it appears that its findings are clearly against the weight of the evidence."

On the other hand, however, the rule is just as well established that "this court shall weigh the evidence and render a judgment here, such as the lower court should have rendered, if we find that the judgment of the lower court is clearly against the weight of the evidence."

Keeping in mind both of the well-established rules as above set out, and after a thorough consideration of all the facts and circumstances presented in this case, we are of the opinion that the findings of the trial court were clearly against the weight of the evidence.

For the reasons herein given, the judgment of the district court of Pawnee county, denying the will for probate, should be set aside and the cause remanded to the district court of Pawnee county, with directions to admit the will to probate; and it is so ordered.

BENNETT, TEEHEE, LEACH, and DIFFENDAFFER, Commissioners, concur.

By the Court: It is so ordered.