Petition for rehearing denied December 16, 1930 ON PETITION FOR REHEARING (294 P. 590) The contestant has filed a petition for rehearing, in which it is asserted, in part, that we erred in our original opinion in holding that the law cast upon her the burden of proof to establish that the will was the result of undue influence. Let us see. Contestant alleged that the will of Wayne, her husband, was not the expression of his own wishes, but that he was coerced to make the same by Lenna Huber, his niece. The allegations charging undue influence were denied. This put the cause at issue, the contestant assuming the affirmative and the contestee the negative.
It is not only established by text-writers and court decisions that evidence shall be produced by the party having the affirmative of the issue, but that rule is codified as Oregon Code 1930, § 9-1001. That section reads:
"The party having the affirmative of the issue shall produce the evidence to prove it. Therefore, the burden of proof lies on the party who would be defeated if no evidence were given on either side."
This question was before our court in Branch v. Lambert,103 Or. 423 (205 P. 995), and it was there held that under the section just quoted "actions against executors and administrators are governed by the general rules that, in civil actions, the party having the *Page 494 affirmative of the issue shall produce the evidence to prove it, and that, when the evidence is contradictory, the finding shall be in conformity with the preponderance of the evidence."
In support of the charge of undue influence, counsel citeHolman's Will, 42 Or. 345 (70 P. 908). For a thorough understanding of that case and the reasoning employed therein, the opinion should be read in its entirety. However, from that opinion, written for the court by Mr. Justice WOLVERTON, it will be helpful to set out the following declaration, which seems to the writer to be based upon sound doctrine, and one holding squarely with our former decision in this case. The learned jurist wrote:
"Common understanding suggests that a will should be natural; that is, conformable to the nature and disposition of the person who makes it. Where it does not conform to this idea, it is a circumstance, no doubt, to be considered in connection with other proof bearing upon the question as to whether or not it was the result of undue influence, but, within itself, affords no conclusive or sufficient proof for the purpose, and does not, therefore, raise a presumption that it was so procured:Salisbury v. Aldrich, 118 Ill. 199 (8 N.E. 777). In the case of gifts inter vivos and contracts made in favor and to the advantage of a person standing in a fiduciary or close confidential relation with the donor, or other contracting parties, such as trustee and cestui que trust, guardian and ward, attorney and client, physician and patient, or priest or religious adviser and his parishioner, and the like, the burden of showing that the transaction was fairly conducted, and that no advantage was taken of the relationship, lies with the one having secured the advantage. The reason, however, for this rule, is that the person receiving the benefit has actively participated in the transaction, as a party thereto, and the explanation required is very naturally within his knowledge and power. Such *Page 495 a reason does not obtain as it relates to a bequest, as the person to whom it is made may not, in point of fact, have had any part in, or even knowledge of, the act which gives him the advantage; and no presumption arises from the mere relationship of the parties that the donee has abused his position of confidence and turned it to his own advantage."
This language, we reiterate, is particularly clear and persuasive, and is impossible of misinterpretation.
We direct attention also to the expression of Mr. Justice BURNETT, speaking for the court in the case of In reSturtevant's Estate, 92 Or. 269 (178 P. 192, 180 P. 595), where the question is analyzed thus:
"The reason underlying the rule as to the burden of proof respecting testamentary capacity and undue influence may be thus stated: If there is no will in existence, the property of a testator is distributed according to the statute of descents. If anyone would interrupt this course of distribution, he must show not only a properly executed will but that there was a testator competent to publish such a document. The persons naturally interested in the estate under the statute of descents have not had their day in court where the will has been admitted to probate in common form. Consequently, the burden of making a different disposition of the property lies upon him who propounds the will to show that the testator had testamentary capacity and that the instrument in question was executed in due form of law. On principle, the question is different where the effort is to overturn the will on the allegation that it is the product of undue influence. This is a species of fraud by the exercise of which the nominal testator is supposed to have been deluded into making a disposition of property which is not the product of his own mind.
"It is hornbook law that he who alleges fraud must prove it, so that in good reason, as stated in Simpson v. Durbin, 68 Or. 518 (136 P. 347), the burden of establishing undue influence lies upon those alleging it." *Page 496
The able justice cites the case of In Re Will of Hiram V.Allred, 170 N.C. 153, 158 (86 S.E. 1047, 1049, Ann. Cas. 1916D, 788, L.R.A. 1916C, 946, 949) calling attention to the following quotation therein from Bancroft v. Otis, 91 Ala. 279 (8 So. 286, 24 Am. St. Rep. 908):
"With respect to testamentary dispositions, the primary presumption, upon which the whole superstructure of the doctrine of presumed undue influence in contracts and gifts inter vivos rests, is entirely lacking. They take effect upon the death of the donor. They involve no deprivation of use and enjoyment. There can be, with respect to them, no assumption that the donor would not voluntarily part with his property, since, in the nature of things, it must then pass from him to others, selected by himself according to the dictates of his affections, or appointed by the law of descents and distributions; and in either case without consideration moving to him. It is not out of the usual course of things, but in accordance with the exigencies of mortality, that the property should cease to be his, and should become that of another. And the very considerations which lead to suspicion, which must be removed in transactions inter vivos — friendship, trust and confidence, affection, personal obligation — may, and generally do, justly and properly, give direction to testamentary dispositions."
Answering the contention that the will in the instant case is unjust, we make particular reference to the case of Beakey v.Knutson, 90 Or. 574 (174 P. 1149, 177 P. 955) where Mr Chief Justice McBRIDE said:
"It may be said that the will is unjust, * * * but, perhaps unfortunately, the law does not avoid a will because it fails to square itself with what persons other than the testator deem to be justice."
In the case of Estate of Allen, 116 Or. 467 (241 P. 996), the testator, who was aged and feeble when he made his will, devised property to the widow to the *Page 497 exclusion of the four daughters and one son. The daughters and named son contested the will, on the ground of undue influence on the part of the widow and two remaining sons. In concluding our opinion therein, we held:
"The law casts upon the contestants the burden of proving their allegation that the will is the result of undue influence brought to bear upon the testator."
Another case wherein the same issues are presented is In reEstate of Moore, 114 Or. 444 (236 P. 265). In that case the daughter contested the will of her father on the ground of undue influence upon the part of her step-mother, and the court held that the burden of proving such influence by the preponderance of evidence was upon the daughter. From the opinion of the court, which is scholarly and instructive, we carve the following:
"In brief, we think, from a careful perusal of five huge volumes of testimony, * * * the preponderance of the evidence establishes three of the contentions of the contestant. First, a desire of the defendant to alienate from his daughter the affections of the testator; second, that she had the ability thus to influence the testator and makes his will bend to hers; and third, that she had the opportunity to carry out that purpose. The ground of contention remaining is whether or not in fact the defendant had so unduly influenced the testator that the result was a will, not the product of his own volition, but that of his wife.
"It is an attribute of property that the owner thereof has the right to dispose of it as he pleases. It is his property. * * * If the contest is waged on the ground of insanity or lack of mental capacity to make a will, the burden is cast upon the proponent to establish by the preponderance of the testimony that the testator had testamentary capacity to make the will offered for probate. As stated, this is not that kind of a case. The sole ground of contest the daughter *Page 498 urges is that her father was unduly influenced to make the will he did, and the burden is upon her to establish her contentions by the preponderance of the evidence. Simpson v. Durbin, 68 Or. 518 (136 P. 347); In re Sturtevant's Estate, 92 Or. 269 (178 P. 192, 180 P. 595); Rice v. Rice, 95 Or. 659 (188 P. 181).
* * * * * "The contention of the plaintiff is that the will is an unnatural one and hence should be set aside, but the law is, that courts cannot make a will for a testator. Neither is it for them to overturn what he has fashioned himself, providing he has testamentary capacity and that his own volition is not overpowered by that of another. * * * A person may be influenced legitimately to make his will in a certain way. It is only when that influence is unduly exerted to the extent that it entirely supersedes the desire or wish of the testator and substitutes for it the purposes and intent of the one exercising the undue influence."
See, also, In re Estate of Riggs, 120 Or. 38 (241 P. 70,250 P. 753), and local authorities cited in support thereof.
The contestant relies largely upon the early case of Greenwoodv. Cline, 7 Or. 17. We cannot follow counsel. There is little similarity between the facts in that case and those in the one before us. In the Greenwood case, the testatrix executed a will when 62 years of age, and died at the age of 64. By the terms thereof she bequeathed to a son and a daughter $100 each, and the residue of her estate, amounting in the aggregate to about $26,000, to Mrs. Mary Cline, her remaining child, and Olive Newsom, a grand-daughter. The will was assailed on the ground that the testatrix was of weak mind at the time of its execution, and that she was laboring under a delusion with respect to contestant arising out of undue influence exercised upon her impaired mind by Mrs. Cline and Mrs. Newsom. *Page 499 The evidence showed that a few years before making her will, the testatrix had suffered a severe attack of paralysis, from the effects of which she never fully recovered; that her memory became defective; that she would ask the same question repeatedly; that she would lease a tract of land and forget about it the next day. Two physicians testified that her mental powers were impaired. Other persons testified that "her eyes had a dead expression and her manner was sometimes like that of an intoxicated person"; that she was "peculiar" in her conversations, and was absent-minded; that she paid no attention to her housework; that she would yield her opinion to those with whom she talked; that, at one time, while going alone from Salem to Howell Prairie, which was her home, she became "turned around" and traveled back to Salem; that she, in company with the Clines, attended spiritual seances at the house of avowed Spiritualists; that, on one of these occasions, when the testatrix was present, a pretended communication was produced purporting to come from her deceased husband, and which undertook to advise her that her son William was a "rough-neck" and liable to squander her property; that, on another occasion her daughter, Mrs. Cline, went to Howell Prairie to visit her after attending one of the seances, and told her that her father's spirit had ridden out with her in the stage and talked with her, and that he was very anxious that her mother should move to Salem and live with her. In that case it was properly held that the testatrix had been unduly influenced.
The contestant avers in her petition:
"That, in the making and executing of said will, said Lenna Huber so dominated and unduly influenced the mind and will of said decedent as to substitute her will and wish for his to such an extent as to cause *Page 500 decedent in the making of said will to breach, violate, and disregard a contract theretofore made by and between your petitioner and decedent based upon both a valuable and a good consideration, in and by which (decedent) promised and agreed to make and leave a will bequeathing and devising all his property and estate to his said wife, your petitioner."
The contract alluded to was invoked by this contestant on March 18, 1929, when she filed a complaint against Lenna Huber, and Lenna Huber as executrix of the will of Charles E. Wayne, deceased, wherein she prayed for the specific performance of an agreement alleged to have been made by her and Charles E. Wayne whereby Wayne expressly promised and agreed that, in consideration of her dismissing her divorce suit against him and giving up her rights thereunder, and forgiving and condoning his treatment of her as alleged in the divorce complaint and resuming marital relations with him, that he would make a last will and testament, in which he would devise and bequeath to her all property owned by him, both real and personal, and wheresoever situate. She alleged that this proposition was made to her by Wayne, and that she accepted it. In rendering his opinion in that case, the trial judge said:
"She (Mrs. Wayne) testified to numerous acts of cruelty. There was some corroboration as to minor incidents, but which of themselves the court believes would not be sufficient to support a decree for divorce. Mr. Wayne, of course, could not tell his side of the story and could be heard only through those with whom he discussed the allegations in the divorce complaint. They say he denied those allegations of cruel treatment. Plaintiff herself testified that he told her the complaint was `terrible, atrocious and untrue,' and that he blamed her lawyer for the allegations in it. One of her witnesses testified that Wayne said he could *Page 501 account for her commencing the suit for divorce only by believing her to be money mad. From such evidence, it seems certain that could he now speak his testimony would be a flat denial of the allegations and of the plaintiff's testimony as to the alleged cruelty."
Upon the trial in the circuit court, relief was denied to Mrs. Wayne under the alleged contract, and a decree entered dismissing her suit. From this decree no appeal has been taken. The matter having been formerly adjudicated, with this alleged contract we have no concern.
Great stress is placed by contestant's counsel upon the subject of "poisoning," and a remark made by Mrs. Huber to her uncle that "I should think you would have been afraid to eat the soup for fear it was poisoned." But, after all is said and done, the fact that Wayne seems to have enjoyed the company of the contestant, and that he dined with her frequently up to the time of his death, strongly indicates that he was not greatly impressed or worried by the "poison" talk; and, in the opinion of the writer, this fact alone is sufficient to put at rest any alleged suspicion on the part of Wayne with respect to the matter. Moreover, in July, 1926, more than a year prior to the talk in reference to poison, Wayne made a will, wherein he fixed the contestant's legacy at $4,000. In December, 1927, some months after the talk, he made the will in controversy here, and fixed her legacy in the same amount. We have carefully studied this phase of the case and have weighed the actions and remarks of the testator with relation thereto; and from a consideration of the question in its entirety, it seems clear that the testator felt no unrest in that regard.
Running all through the record in this cause, we find much talk of coercion and undue influence; but *Page 502 nowhere do we find any testimony showing that Wayne was surrounded by any person or persons who exerted undue influence over him at the time he made and executed his will. After the contestant herein filed her suit for divorce against Wayne, wherein she painted him as stingy, niggardly, parsimonious, eccentric, brutal, and a wife beater, Lenna Huber made some observations concerning her; but she has failed to bring into the record any testimony that Mrs. Huber influenced, unduly or otherwise, the act of her uncle, in making her the residuary legatee of his will. She was fond of her uncle, and her uncle was fond of her. It is true, as contestant says, that she kissed her uncle, and her uncle kissed her. There was nothing untoward in that. So far as the record indicates, Mrs. Huber's character is not subject to criticism. Upon the other hand, there was an attempt to coerce Wayne into leaving all of his property to his wife upon his death. In the complaint praying for specific performance of the contract hereinbefore discussed, contestant says that she had a good cause for divorce against Wayne because he had treated her in a cruel and inhuman manner and had subjected her to personal indignities rendering her life burdensome, but that she ceased to press her cause of suit for the reason that he promised to make her the sole beneficiary under his will, and that she dismissed the divorce suit only because of the importunities of Wayne and the promises above set out. It will be noticed, however, that, notwithstanding the divorce complaint teems with alleged wrongdoings on the part of Wayne extending from a few weeks after their marriage to the time the suit was filed, it contains not a single allusion to Lenna Huber, or to her alleged evil influence upon Wayne. This fact is significant. *Page 503
In order that the contestant may prevail in this cause, certain essential facts must be established by her. First, she must establish that undue influence was, in fact, exerted; second, that by such influence the contestee was successful in subverting and controlling the will of the testator. Both of these facts must be proved by the weight of the evidence in order to defeat the will.
Under the rule laid down by the numerous authorities cited and quoted in our original opinion, evidence of declarations of the testator made before or after the making and execution of his will is not admissible as substantive proof of undue influence. Such statements are but hearsay and are incompetent for that purpose. They are admissible, however, for the purpose of shedding light upon the condition of mind of the testator. The writer concludes that the improvident assertions of Mrs. Huber in the matter of the domestic relations of her uncle and aunt subsequent to the filing and dismissal of the divorce complaint, coupled with her treatment of Mrs. Wayne immediately after the death of Wayne, constitute circumstances tending to show that she may have had the desire to influence her uncle's conduct in the execution of his will. In addition, the record discloses a number of circumstances tending to show that she had the opportunity to influence the making of his will. But that is not enough. There is no testimony that shows that she actually had the power to dominate her uncle's mind, or that she did so dominate and control him "that the result was a will not the product of his own volition," but that of her desires. Many intimate friends of the testator took the witness stand and testified to the admirable qualities of mind and steadfast character possessed by him. He was not a weakling, to be dominated by his niece, or yet his *Page 504 wife. It is obvious from the record that the contestant did not dismiss the divorce proceedings because of any promise of a consideration therefor, but because Wayne warned her that he would proceed to fight the case, and that his defense was in the course of preparation. As a result of the charges therein made by her against her husband and the publication thereof in the newspapers and by the public records, Wayne was cut to the quick; and his friends testify that he was very deeply mortified. Nevertheless, under the advice of his attorney as to his duty in the matter, he continued to support his wife and her two youngest children.
In her brief on petition for rehearing, the contestant tells us that Wayne resumed marital relations with her immediately after the withdrawal of the divorce suit, which relations continued until the moment of his death; that Wayne told George Estes in November, 1927, that he was happy over a complete reconciliation with Mattie, and had agreed to leave her the bulk of his estate; that he told Laura Brown the same thing; that he told Marguerite T. Briedwell the same thing; that he told Adams, one of Lenna Huber's witnesses, that he intended to provide for Mrs. Wayne and the children.
Conceding, for the sake of argument, the truth of these statements, it but spells disaster to the contention of contestant that Lenna Huber had succeeded in dominating her uncle by implanting in his mind a dread and fear of his wife, or by any other means.
We have again reviewed the entire record in this case with exceeding care. From a painstaking study thereof, we are satisfied that our former decision is fully sustained by the evidence. It follows that the petition for rehearing is denied.
COSHOW, C.J., and BEAN and BELT, JJ., concur. *Page 505