Lindinger v. LINDINGER

Kendall, P. J.

Appellees, children of Louis Lindinger, Sr., decedent, brought this action to set aside the probate of the last will and testament of their father on the grounds of duress, fraud, undue execution and undue influence. After filing of appropriate answers, trial was had by jury, resulting in a verdict in favor of appellees setting aside the probate of the will upon which judgment was rendered. All grounds for setting aside the probate of the will were withdrawn from the jury upon appellant’s motion except that of undue influence. The appellant was the second wife of the appellees’ father, Louis Lindinger, Sr.

Motion for new trial contended that the verdict was contrary to law, not sustained by sufficient evidence and error of court in overruling appellant’s motion for directed verdict. The sole assignment of error is the court’s overruling the motion for new trial.

Undue influence has many times been defined by this and the Supreme Court, as well as many text-writers. Generally speaking, undue influence, as applied to a will contest, has reference to the means and methods resorted to and employed by a person for the purpose of effecting and overcoming, and which will ultimately effect and overcome the free and unrestrained will of a testator. Plainly stated, undue influence invalidating a will is that which substitutes the wishes of another for those of the testator. Workman v. Workman (1943), (Transfer Denied), 113 Ind. App. 245, 46 N. E. 718. See also Robb et al. v. Graham et al. (1873), 43 Ind. 1; Kenworthy v. Williams (1854), 5 Ind. 375.

In order to affect a will, undue influence must subjugate the mind of a testator to the wishes of the person exerting the influence. It must be such as to control the mental operations of the testator in the making thereof, overcome his power of resistance and oblige him to make a disposition of his property which he would not have made if left freely to act according to his own wishes and pleasures. Estate of Newhall (1923), 190 Cal. 709, 214 Pac. 231, 28 A. L. R. 778; Stevens v. Leonard, Ex. (1900), 154 Ind. 67, 56 N. E. 27.

The sufficiency of the evidence to sustain this verdict depends on the presence in the record of some competent evidence of probative value supporting the same. The exercise of undue influence may be shown not only by positive testimony but by circumstantial evidence surrounding the execution of the will in determining its validity. Evidence required to establish undue influence need not be direct, affirmative or of a positive character such as is required to establish a tangible, physical fact. In the Workman case, supra, the court said: “The only positive and affirmative proof required is of facts and circumstances from which the undue influence may be reasonably inferred.” Haas v. Haas (1951), (Transfer Denied), 121 Ind. App. 335, 98 N. E. 2d 232.

Appellant maintains that the record is altogether lacking of any evidence showing undue influence in the execution of the decedent’s will.

With these definitions and rules of law in mind, we proceed to consider the evidence to determine whether or not there is any evidence of probative value to sustain appellees’ allegation of undue influence.

The decedent married his first wife in 1909. She died in 1943. The first Mrs. Lindinger was survived by the appellees, her children, and her husband, the decedent herein. Appellant’s first husband died in ’Detroit in 1946. In June, 1947, appellant went to Indiana Harbor on a visit during which time she met the decedent whom she first became acqainted with in early childhood. On October 31, 1947, the decedent and the appellant were married. They went to housekeeping at decedent’s former home where his son, Louis, Jr., and family also resided. On October 15, 1948, the decedent, sixty years of age and described as being strong and healthy, executed the will in question. He continued to work until the day of his death on June 2, 1950. The appellant was the recipient of the bulk of his estate and was appointed Executrix of the will.

The evidence revealed that prior to the decedent’s second marriage he visited his children quite often; that after his marriage, the visits were not nearly so often, and, on such visits, decedent and his wife did not stay long and that appellant did most of the talking; that appellant was critical of appellees’ children, especially Louis, Jr.; that for a short time after marriage, decedent, appellant and Louis, Jr. and his family lived in the same quarters, but within a few weeks Louis, Jr. and family moved upstairs; that while living together, appellant complained of having two cooks in the same kitchen. The evidence revealed that appellant complained that Louis, Jr.’s wife was having a jinx put on her. Appellant likewise complained of the children of Louis, Jr., running around the house and creating confusion; that an altercation occurred between appellant and children of Louis, Jr.; that in November, 1948, appellant told Louis, Jr. that she had cheated him out of Ten Thousand ($10,000.00) Dollars by getting decedent to transfer real estate to her. There was further evidence that the children were deprived of visiting decedent while he was ill in a hospital in Detroit. Evidence further revealed that shortly after marriage appellant told appellee, Helen Lindinger, that she hated the testator and that he was stingy, and further stated that if she didn’t get her way she would go to Detroit, which she did, whereupon the decedent went after her.

The witnesses to the will testified that decedent and appellant came to their home; that the decedent informed the witnesses he had made a will and wanted them to witness the same, which they did in one of the rooms of the witnesses’ home; that during the time of the execution and witnessing of the will, the appellant remained in another room of the house looking at the T. V.

With the type of evidence adduced, it is well to consider the same in view of appellant’s contention with the definition given of undue influence and requirement for proof thereof by the Supreme Court in the case of Wiley v. Gordon (1914), 181 Ind. 252, 104 N. E. 500, in which they said:

“Undue influence, in order to make a will void, must be directly connected toith its execution and must operate at the time it is made. It must be an influence of such compelling force that the apparent testator is but the instrument by which the mastering desire of another is expressed, so that the supposed will, or the particular part in question, is not the will of the testator except in the sense that he has consented to put his name to it in the form in which it appears.” (Our emphasis).

The latest pronouncement to the same effect of this court is in the recent case of Ludwick v. Banet (1955), (Transfer Denied), 125 Ind. App. 465, 124 N. E. 2d 214, and cases cited therein.

Unfriendly relationship between appellant and appellees in itself is not evidence of undue influence upon the mind of the testator at the time of the execution of the will; neither is fewer visits and derogatory remarks. Statements of hatred and ill-will are not in themselves and unconnected with the execution of the will, evidence of undue influence in the absence of evidence, or evidence from which inferences can be reasonably drawn, that the mind of the testator was dominated thereby. Estate of Newhall, supra. We find no evidence of probative value that the mind of the testator at the time of making the will was subjugated to and dominated by the desires and designs of appellant to the point of undue influence as defined. In other words, there is no showing of any restraint by the appellant upon the mind of the testator which resulted in making the will as representing the wishes of appellant, the principal beneficiary, rather than the wishes of the testator. Mere general or reasonable influences in themselves over a testator are insufficient to invalidate a will. To have that effect, the influence must be undue.

The substance of the various definitions of undue influence sufficient to void a will is based upon the fact that the influence asserted must be of a kind that so overpowers the mind of the testator as to destroy his free agency and make him express the will of another. Wiley v. Gordon, supra; Beaver v. Emry (1925), (Transfer Denied), 84 Ind. App. 581, 149 N. E. 730. We cannot say that the evidence in this case is of that character. General influences brought to bear on the testamentary act, however strong and controlling, do not in themselves constitute undue influence.

We do not decide whether or not the present will is one that might be termed an unequal or unjust will, but if it were, and the will did make an “unjust” distribution of the testator’s estate, that fact does not, when considered alone, raise a presumption of undue influence nor cast the burden of explanation on the favored devisee. Orth et al. v. Orth et al. (1895), 145 Ind. 184, 44 N. E. 17; Stevens v. Leonard, supra; Bowman et al. v. Phillips et al. (1874), 47 Ind. 341; Vance et al. v. Vance et al. (1881), 74 Ind. 370; Wilcoxon v. Wilcoxon (1896), 165 Ill. 454, 46 N. E. 369.

In order to establish undue influence to void a will, the circumstances of its execution need not be inconsistent with every hypothesis; however, it is necessary that the evidence of the party attacking the will of a person of sound mind on the grounds of undue influence shall preponderate over the evidence adduced. Actually what the evidence reveals in this case is that the appellant was in a position and had an opportunity to exercise influence over decedent; that the feeling between appellant and appellees was not harmonious; that appellant made statements as to her intentions a number of months prior to the execution of the will. We find no evidence of undue influence or evidence from which inferences can reasonably be drawn that undue influence was exercised on the decedent by the appellant at the time of the execution of the will or that it was influence of such compelling force that the testator was but the instrument expressing the desires of another. Crane v. Hensler (1925), 196 Ind. 341, 146 N. E. 577; Wiley v. Gordon, supra; Ditton v. Hart (1911), 175 Ind. 181, 93 N. E. 961; Todd et al. v. Fenton et al. (1879), 66 Ind. 25; Beaver v. Emry, supra.

Undue influence is determined not in the light of what a court or jury deem just, but in the light of what the testator actually desired. Will of Schaefer (1932), 207 Wisc. 404, 241 N. W. 382.

There is an entire absence of evidence in this case to' show that when the testator executed the will in question he was under such influence that is undue under the decided cases. Vance et al. v. Vance et al., supra; Rabb et al. v. Graham et al., supra; Ditton v. Hart, supra.

The trial court erred in refusing to direct the verdict in appellant’s favor. Judgment reversed with instructions to sustain appellant’s motion for new trial.

Bowen, J. dissents with opinion.

Crumpacker, J. not participating.