Hotchkiss, Administrator v. Werth

Fromme, J.,

dissenting: The trial court listened patiently to all the witnesses in this case and concluded there was evidence of undue influence. The trial court found the deed from the parents to a son and his wife was the product of undue influence exerted by the son and his wife. After reading the cold record a majority of this court, overlooking their appellate role on appeal, have retried this case on the record, as indicated by their recitation of evidence. They arrive at a different conclusion than did the trial court.

Before an appellate court should reverse a trier of the facts on a question of fact there should be no substantial evidence to support the finding and judgment. All relevant evidence which supports the finding and judgment should be accepted as true and given all reasonable inferences. This the majority of the court fails to do.

Generally there are four elements present to establish undue influence: (1) a person who is subject to influence; (2) an opportunity to exert undue influence; (3) a disposition to exert undue influence; and (4) a result indicating undue influence. (25 Am. Jur. 2d, Duress and Undue Influence, § 36 p. 397.)

Without attempting to detail the evidence supporting the trial court’s judgment and finding I wish to summarize evidence in the record which supports the four elements referred to in the foregoing paragraph.

The father and mother who executed this deed were both over eighty years of age. Both were chronically ill when the deed was signed. The father was suffering from arteriosclerosis, cancer of the prostate and from the effects of a broken hip. He died within a year after the deed was executed. The mother had suffered a heart attack before the deed was signed and was wholly reliant upon her husband. She died before the case was tried. Both had been under the constant care and treatment of a doctor. Neither drove a car and both relied on the son and daughter-in-law to look after them and provide all transportation. The son farmed his father s land, and held a power of attorney which authorized him to look after the fathers business. At times the father either faded or refused to recognize some of his other eight children. He was hard of hearing and used a magnifying glass to read.

This son and daughter-in-law had every opportunity to exert undue influence upon these old people. In looking after their wants, including their transportation, they were with them constantly. This 320 acre farm was the major source of income for the father and mother. In farming this land, paying rents and taxes and in looking after the land the son had control of the livelihood of his parents. This close control and association continued for about two years prior to the execution of the deed. The negotiations for acquiring the farm were carried on by the father and son in the absence of other members of the family and in the absence of outside advisers. After the deal was made and after negotiations were concluded, then and only then were others brought in to draw the deed and take care of the formal acts of transfer. After the death of the father and mother who was left to testify of undue influence in these negotiations?

There was a disposition shown to exert undue influence. Another son had farmed the land for many years and after the father’s health broke in 1963, this son was notified to quit farming and turn the land over to the preferred son who later got the deed to the farm. At this time the family lawyer was replaced by a lawyer of the preferred son’s choosing. The preferred son and his wife took the father and mother from the home of a daughter when the daughter was not at home. Prior to that the son had visited the parents in the daughter’s home and in the presence of the daughter told his father that the conditions in the daughter’s house were awful and that all the daughter was after in caring for her parents was the land. The preferred son said to his father, “Oh, yes, you just don’t know them, and their [sic] working for that farm.” The daughter-in-law testified that she heard the father tell the manager of the loan association later that the father wanted to make the transfer because, “It wasn’t so much his children, as it was the in-laws that were always trying to take his land away from him and tiying to run his business.” Clearly seeds of distrust had been previously planted by the son.

There was a result indicating undue influence. The parents had nine children. If this deed is valid sixty percent of their entire estate was deeded to one son shortly before death. The effect of the deed is to destroy the testamentary disposition of the parents’ estate which was approved by codicil as late as December 31, 1963. By the will and codicil all three sons were to receive portions of this land and the preferred son, Emil, who was to receive the SW /i, was to pay $2000 to the five daughters in varying amounts within two years of death. The will was not changed after the deed was delivered. The deed will cancel all these provisions of the will. In this relatively short period of time between December 31, 1963, and June 24, 1965, (one year and six months) a son who had not been close to his father and mother, who had lived in other states and had visited only occasionally became the preferred son. He replaced his older brother who had farmed the land or portions thereof for many years. He obtained a power of attorney from his father. He became his father’s confidant and adviser. He provided his father’s transportation and delivered his groceries. In this same short period he obtained 60% of his parents’ estate and in doing so replaced other children who had previously cared for their parents.

There was substantial competent evidence to support the judgment and findings of the trial court and I respectfully dissent.