This appeal is by the proponents of the will of John B. Myers, deceased, from a judgment of the district court of Pawnee county, denying probate upon the grounds of the want of testamentary capacity, fraud, and undue influence.
As to the execution and publication of the will, and the testamentary capacity of the decedent, it may be said that the evidence shows the instrument was executed and published in due form as required by the law of this state, and the testator was of sufficient mental capacity to make a will, if free from undue influence. This leaves but one question to be decided: Was the finding of the court below that the execution of the will was induced by fraud and undue influence contrary to the clear weight of the evidence?
The evidence shows that the testator, John B. Myers, and the contestant, Maye S. Myers, were married in 1901 at the ages of 27 and 23 years, respectively. At the time of their marriage their estates were small and about of equal value. By their joint efforts, industry, and frugality, they accumulated an estate of approximately $300,000, less about $50,000, which came to the testator from his father's estate some two or three years before the death of the testator, December 30, 1923.
By the terms of the will the following disposition was made of the estate: The widow, Maye S. Myers, was given the homestead in Cleveland, the household goods, and the automobile, and one-third of the estate; Walter D. Myers, brother of the testator, two-ninths of the estate; Mrs. Cox, his sister, two-ninths, and each of two nieces, daughters of a deceased sister, one-ninth. Walter D. Myers, the brother, and Maye S. Myers, widow, were made joint executors of the will without bond.
The record discloses that the marital relations of the testator and the contestant were that of people devoted to each other. As to the relations between the testator and the other beneficiaries named in the will, the record discloses that a bond of close affection existed between them. The testator and his brother, Walter D. Myers, had been closely associated in business and had been confidential advisors of each other. The testator had been a business associate and advisor of his sister, Mrs. Cox, and also of the husbands of each of the two nieces. He had *Page 192 aided and assisted in the schooling and in the support of the two nieces in their girlhood days, and had given every evidence of concern and affection for the welfare and material success of all of them. Sometime before his death, without the knowledge of any of the parties, the testator had taken out life insurance for the benefit of his wife, Maye S. Myers, in the sum of $3,000; for his sister, Mrs. Cox, $2,000; for his nephew, Walter D. Myers, Jr., son of Walter D. Myers, $2,000, and for each of his nieces the sum of $1,000.
The evidence shows that the testator was an active and aggressive business man at all times until his health began to fail, something like a year before his death. About the last of August, 1923, his ailment was found to be cirrhosis of the liver. In September, when the dropsical condition was first discovered, the testator, in company with his local physician, went to Sand Springs and was tapped, several quarts of fluid being taken from his abdominal cavity. As a result of the malady he went into a general and gradual decline. Toward the last of October his condition was such that Walter D. Myers, his brother, who was a resident of Alva and engaged in the banking business at that place, was called to Cleveland for a consultation. It was then decided that the testator should be placed in a hospital under the care of a specialist. It was agreed that Walter D. Myers should make arrangements to place him in a hospital at Wichita, Kan. Pursuant to that agreement such arrangements were made, and on the 4th day of November, the decedent left Cleveland for Wichita, accompanied by his wife and Mrs. Childs, a friend of the family and an intimate friend of Mrs. Myers. When they reached Wichita they were met by the brother, Walter D. Myers, according to previous arrangements. After the consultation with the physician the decedent was, on the 6th day of November, placed in St. Anthony's hospital. Mrs. Myers and her friend, Mrs. Childs, took up their residence at a rooming house across the street from the hospital, and spent their time at the hospital with the testator, consistent with the hospital regulations, with the exception of such times as they were out for exercise and meals. November 7th the testator was tapped and eight or ten quarts of fluid taken from him. This operation was repeated every seven or eight days with similar results until his death. The evidence shows that as a result of the accumulation of the fluid the testator was uncomfortable and restless; that after being tapped he was less uncomfortable and felt better. For about two weeks after he entered the hospital he was confined to the bed. Narcotics were sometimes administered. The evidence shows that during such times he was often in a stupor and failed to respond when spoken to. For a period following the first two weeks he was able to be up and walk around the hospital, into the smoking room to smoke, talk with his friends, and often went out of the hospital for a short walk in company with his wife. His condition was described by the attending physician and his assistants as a gradual decline from the time he entered the hospital until he went into a stupor about two weeks before his death, then into complete coma and death December 30th.
The purported will was executed and published November 26th, just 20 days after he entered the hospital and 34 days before his death, without the knowledge of Mrs. Myers, the widow, or anyone connected with the hospital. The contestant's evidence shows that on the morning of the 26th, the day the will was executed, Mrs. Myers, Mrs. Childs, and Walter D. Myers were in and around the hospital. At times, when no one was in the room but Walter D. Myers and the testator, they carried on a conversation in low tones so that the nurse when entering the room could not hear what was being said. The nurse's testimony was that when she entered the room she found Walter D. Myers sitting close to the bed, with his hand on the bed, talking in a low tone, but when she entered the room the conversation would cease, and Walter D. Myers would get up and walk around the room. Mrs. Myers and Mrs. Childs testified that when they returned from lunch about 12 o'clock, Walter D. Myers was dressing his brother; that Mrs. Myers asked Walter what they were going to do and he replied that his brother wanted to take a walk; that they left the hospital together and were gone for a considerable length of time; that when they returned the testator was in an exhausted condition, and Mrs. Myers asked Walter Myers where they had been, and he replied, in substance, that they had taken a street car ride, got out and walked one block, caught the next car and came back. The evidence shows they had, as a matter of fact, taken a street car, and gone down into the city of Wichita and to the First National Bank, where the will was executed, witnessed by officials of the bank, boyhood friends of the testator and his brother, Walter D. Myers. The evidence further shows that Walter D. Myers, with Mrs. Maye S. Myers and Mrs. Childs and others, accompanied the body from Wichita to Cleveland *Page 193 for the funeral ceremonies and burial January 2nd.
Mrs. Myers' testimony was that while Walter D. Myers was in Cleveland attending the funeral services, she asked him if he knew whether the deceased had made a will; he replied that he did not know; that on the 5th of January she wrote Walter D. Myers at Alva, and asked him specifically if, among the papers he had there, the decedent had a will; she received no reply to that letter; that Walter D. Myers returned to Cleveland for a meeting of the stockholders and directors of the First National Bank, of which the testator had been president for a number of years; that at that time she again asked him if he knew whether there was a will, and he answered in the negative, but later indicated to her that there probably was a will, and that she could get a copy of it by writing to Pawnee. The evidence further shows that the will was filed in the county court of Pawnee county January 7th, by an attorney acting for Walter D. Myers, together with the petition for letters testamentary to be issued to Walter D. Myers and Maye S. Myers, which was done without the knowledge of Maye S. Myers and before she knew there was a will. Contestant's evidence shows that the testator had on two occasions two or three years prior to his death made remarks clearly indicating that it was not his intention to make a will.
The attending nurse testified that, following the return of the testator and Walter Myers on the day the will was executed, the testator appeared to be exhausted and was very restless and suffered considerably that afternoon and night; that he was given opiates to relieve him, and that because of his condition they called Mrs. Myers, his wife, to come to the hospital. She further testified that on that afternoon Walter D. Myers told her, the nurse, that if they at any time called Mrs. Myers to come to the hospital to call him also. She said that she did not call Walter Myers, and on the following day he remonstrated with her for not having done so. The testator was tapped on the morning of the 27th, and several quarts of fluid taken from him.
It is clear from the evidence that the testator never at any time had any conversation with anyone relating to the will except with his brother, Walter D. Myers, and the few remarks made by him to the attending witnesses at the time the will was executed.
The testimony of Walter D. Myers, as to the circumstances of the execution of the will, is fairly set out in narrative form in the brief of the proponents as follows:
"On this trip up there the 18th of November, John told me he didn't have any will made, and wanted it made out. Wanted me to help him get it fixed. He told me about how he wanted it fixed; told me to look up the law about it and see a lawyer, and I did. I saw Mr. Brooks, an attorney at Wichita, that is connected with the First National Bank. His office is in the Beacon Building. I went there and had a talk with him. No arrangement was made with him to draft a will. I went back and told John what the result of that talk was. I told John that Brooks said he would have to look up the law, and didn't want to say at first what he would charge, but I told him I was representing my brother sick in the hospital, and didn't want to hire him until I knew what it was going to cost, and Brooks finally told me he would want $35. I told John about it. John said. 'That is a little steep.' He says, 'I could get it done in Oklahoma City for nothing.' He outlined the way he wanted the will, and all about it. He says, 'When you get to Alva, you have your lawyer fix up my will papers and have them fixed up in duplicate. Two of them just alike.' I made a memorandum at that time, how he wanted this fixed. I had that memorandum with me when I returned to Alva on the evening of the 20th. I went to Wichita the next Sunday. I took the will with me that I had had prepared under his instructions. John says, 'I want all my debts paid.' He says, 'I don't think I owe any debts, but if I do, I want them paid.' Then he says, 'I want May to have the house and furniture and the car as her individual property,' and he says 'I want the balance of my estate divided into four equal parts.' He said, 'I want May to have one part, Gertie to have one part,' and he wanted me to have one part and Helen and Bee to have one part together. The will was drawn differently from that. He told me he wanted it drawn according to law so it would stand, and I talked to my attorney, and he said John couldn't will away over two-thirds of his estate, so the outline was changed to give her one-third of the balance of the estate. I told John about that change when I returned to Wichita the 25th. He brought the subject up and he says, 'Did you get all my will papers fixed up?' And I says, 'Yes.' I says. 'We had to change it a little bit.' He says, 'How is that?' I says, 'Well, my attorney says you couldn't will away more than two-thirds of the estate. You have to will your wife one-third.' He says, 'That is all right. I want it fixed according to law so it will stand.' I suggested to him that he should give his wife more than he had suggested himself. I says, 'John.' I says, 'I am afraid May won't be satisfied with that will.' I says, 'You ought to give her more.' I says, 'I don't like to have anything to do with this and have her dissatisfied.' I says, 'She always treated me fine, and I would hate to have anything to *Page 194 do with it if there was any dissatisfaction.' He says, 'I am situated different to what you are.' He says, 'You have got a bunch of children to leave your money to, and I haven't.' And he says, 'I want to leave May plenty to do her as long as she lives, but,' he says, 'I don't want her to have all of it, nor any big amount to go to her folks.' After I had told John of the advice I received as to the portion that he would have to leave his wife anyhow he asked to see the papers. That was on Sunday, the 25th. I think it was in the forenoon, about 10 o'clock. There was nobody there when he asked for those papers except me. He asked me in the hospital if I had the papers. I told him I did. He got up and dressed and we walked around in the hospital on Monday forenoon, and we walked clear through the hospital and he says, 'I want to see those papers. Those will papers.' I says, 'I haven't them in my pocket.' He says, 'Where are they?' I told him 'They are in my grip in the reception room.' And he said then he would see them later. He was up and dressed and we had been walking around and smoking, and when noon came, the women folks, Maye, Mrs. Childs and myself started to dinner, and John walked with us just like he was going to dinner, and when we got to the front door, they went out ahead of us and he called me back and says, 'I want to see those will papers.' I took him in the reception room and opened my grip up and gave them to him. He sat down there and read them. We remained there in the reception room probably 30 minutes. I don't know exactly. He read them both. He says, 'They are all right. They suit me all right.' Said, 'I want them so they will stand.' My grip was open and he just put them in my grip. I don't remember whether there was or not anything more said that day about the will. It was on Sunday. On Monday, the 26th, he was up and dressed. We walked around and he says, 'Get those papers.' And I got the papers, and he says, 'Come on, let's take a walk,' and we went out of the hospital and we went on to the streetcar line, and took the street car. He told me he wanted to go down to the First National Bank. We went down to the First National Bank and John had the papers then. I gave them to him after we left the hospital. He wanted the papers and I gave them to him. He put them in his pocket and we went and got on the street car, and went down to the First National Bank. Went into the bank together. I think we first saw Mr. Masterman after we got into the bank. He went in and sat down at the desk and took the papers out and looked at them and spoke to these men and told them he wanted them to witness his will. At the time I did not say anything to him myself about the will. John requested these other men to witness that will. I was near them when John signed them, and saw him sign them and saw the other witnesses sign. After the witnesses had signed them, he put them in his pocket. He stayed there then a little while and talked to them. Not very long. He talked to Mr. Chandler and Mr. Masterman a little bit. He had known Mr. Masterman up in Kansas since he was a boy. He had been acquainted with Mr. Chandler same length of time. They were running a bank up there when we were small boys. They were older than he and he had been acquainted with them a good many years. After this business was transacted there in the bank, we went back to the hospital. After these papers had been executed and signed, he put them in his pocket and we walked away out of the bank. He gave them to me right after we got out of the bank. He says, 'I want you to take these papers home with you. Put them in your bank at Alva, and keep them there till I get back to Cleveland, and then I want you to bring one of them down to Cleveland. I want to put one in my box in the bank at Cleveland.' And he says, 'If anything happens to me I want you to have those papers recorded at Pawnee, Okla'."
He denied that Mrs. Myers had asked him about a will on the 2nd of January. He admitted receiving her letter of January 5th and that he did not answer it for the reason that he was to be in Cleveland and would see Mrs. Myers on the 9th, and that on the 9th she wanted to know if John had left a will, and he told her, "Yes," that it was over in his bank; that he expected it was at Pawnee, as it had been sent over there; that he did not tell her its contents, but told her to send to Pawnee and get a copy. He denied telling her that he did not know what was in the will, but told her that he and she had been designated as executors. He further testified that on the 18th of November, when his brother first spoke to him about the will, he then, for the first time, also told him about the insurance he had taken out for the benefit of the parties above referred to. He further testified that the will was drawn and executed in duplicate; that his brother wanted it that way because one might get lost or destroyed, and he wanted two of them just alike:
"He told me to take them both home with me and put them in the bank for the present, and when he got back to Cleveland, to bring one of them down there, and he wanted to put it in his bank box, and to keep the other one at Alva."
It is made to appear by the evidence that the will was executed with great secrecy for the purpose of keeping all knowledge of the transaction from the wife of the testator; that the testator and his wife had lived and worked together for a quarter of a century, and there had been no estrangement between *Page 195 them; that the will was prepared under the direction of Walter D. Myers and by his attorney; that Walter D. Myers was given a much larger share of the estate by the terms of the will than he would have been entitled to without the will, and that he was made an executor without bond; that the testator left his bed and in company with Walter D. Myers, and on his representation that they were going for a walk, and without the knowledge or consent of attending physician or nurse, made the trip, unusually long and fatiguing, for the testator to have the instrument witnessed by their boyhood friends; that the will had been prepared in duplicate, and after they left the hospital both copies of the instrument were delivered by Walter D. Myers to the testator; that the instrument was executed in duplicate so that either copy could serve as a will for probate; that after both copies had been executed and witnessed in due form, and after they had left the bank, where the instruments had been executed, the testator delivered both copies to Walter D. Myers, who took them both to his home in Alva and deposited them in the vault of his bank; that the testator was, at that time, and had been for several months, in a gradual state of decline in health, and so continued to decline for 20 days after the execution of the will, when he went into a stupor, and from that time into complete coma and death; that the testator had on two occasions intimated that it was his purpose not to make a will; and that confidential and fiduciary relations had long existed between the testator and his brother, Walter D. Myers. When all these suspicious circumstances were made to appear, it was incumbent upon the proponents of the will to prove, by satisfactory evidence sufficient to satisfy the conscience of the court, that undue influence was not the inducing cause of the execution of the instrument. Ekern v. Erickson (S.D.) 157 N.W. 1062; Ginter v. Ginter (Kan.) 101 P. 634; 28 R. C. L. 145; In re Dale's Estate (Ore.) 179 P. 274; Harvey v. Sullins (Mo.) 2 Am. Rep. 491; 4 A. L. R. 975 (2); Mooney v. Olson, 22 Kan. 69.
We think this burden was not sustained by the proponents of the will. If the testator had regained his health, and failed to destroy the will, or make other disposition of his property, it would have been a strong circumstance to negative undue influence, but, under the conditions shown to have existed from the time of the execution of the instrument until his death 34 days later, when he was often in a stupor as a natural result of the sickness from which he was suffering and died, and often under the influence of narcotics, no presumption can be indulged by his failure to destroy or change the will. If he had so desired the instrument was not available for the reason that it was in the bank of his brother, Walter D. Myers, many miles distant, and Walter D. Myers was present at his bedside only about three days in each week. If he had called for the will and one copy had been presented and destroyed, the other copy would still have been available to the proponents as the will. The fact that the will had been executed in duplicate could easily have slipped the memory of the testator in the situation in which he was placed. One of the attesting witnesses did not remember that the instrument had been executed in duplicate, although he had signed both instruments as an attesting witness.
We are unable to say that the judgment of the trial court is contrary to the clear weight of the evidence, and the judgment is affirmed.
By the Court: It is so ordered.
For additional authorities see Benson v. Benson,125 Okla. 151, 256 P. 912; Griffith v. Scott, 128 Okla. 125, 261. Pac. 371.
From a careful review of this entire record, I am firmly of the opinion that this court erred in granting a rehearing herein and that the order granting same should be vacated and set aside and the original opinion filed herein on March 2, 1926, and hereinabove set out, be adhered to. In this connection I desire to incorporate herein in full the report of Commissioner Logsdon on the original petition for rehearing filed herein, same having been referred to him for consideration and for report with his recommendations on same:
Report on Petition for Rehearing.