47

be material. Communications made by the testator to his attorney on business matters prior to and without reference to the execution of the will have been held admissible as a foundation for the opinion evidence of the attorney as to the sanity of the testator.48 It may be shown that the testator was frugal, saving and appreciative of the value of property, for such qualities tend to negative the existence of an unsound mind."9 A bond executed by the testator has been held inadmissible, it appearing that he neither read it nor heard it read.50 The declarations of an attesting witness that the testator was of unsound mind when the will was made are inadmissible.51 A contestant may testify as to what the testator said and did, prior to the making of the will, indicating his state of mind, including angry exclamations, but a contestant cannot testify as to any conversation between the testator and the contestant relative to the will.52 A mistake of the testator as to the extent of his property is admissible but does not show as a matter of law a want of testamentary capacity.53

165. Opinion evidence-Attesting witnesses to a will are competent to testify and give their opinion as to the testamentary capacity of the testator without laying any foundation by giving the facts upon which the opinion is based.54 A witness, not an expert and not an attesting witness, cannot testify generally as to the mental capacity of the testator, but must first testify as to the facts within his knowledge upon which his opinion is based, and then can testify only as to his opinion formed from those facts. A non-expert witness who has observed the testator may testify that he acted like an insane person.56 Medical experts may testify as to the effect of physical disease on the mind, but not as to whether certain mental acts or operations indicate a strong or weak mind.57 An expert witness may be asked whether, assuming the statements of the other witnesses as to symptoms and indications of testator to be true, the testator was of sound mind.58 An expert witness may give his opin

55

47 In re Pinney's Will, 27 Minn. 280, 6 N. W. 791, 7 N. W. 144; Woodcock v. Johnson, 36 Minn. 217, 30 N. W. 894; Wheeler v. McKeon, 137 Minn. 92, 162 N. W. 1070.

48 In re Layman's Will, 40 Minn. 371, 42 N. W. 286.

49 Buck v. Buck, 126 Minn. 275, 148 N. W. 117.

50 In re Pinney's Will, 27 Minn. 280, 6 N. W. 791, 7 N. W. 144.

51 Speer v. Speer, 146 Iowa 6, 123 N. W. 176; 23 Harv. L. Rev. 409.

52 See § 286.

53 Ann. Cas. 1914A, 478.

54 Geraghty v. Kilroy, 103 Minn. 286, 114 N. W. 838. See § 280; 28 A. & E. Ency, of Law (2 ed.) 101; 40 Cyc. 1035, Woerner, Am. Law of Adm. (2 ed.) § 28.

55 In re Pinney's Will, 27 Minn. 280, 6 N. W. 791, 7 N. W. 144; Collins v. Dowlan, 118 Minn. 214, 136 N. W. 854. See Woodcock v. Johnson, 36 Minn, 217, 30 N. W. 894; In re Layman's Will, 40 Minn. 371, 42 N. W. 286; McKillop v. Duluth St. Ry. Co., 53 Minn. 532, 537, 55 N. W. 739; 28 A. & E. Ency. of Law (2 ed.) 96, 98; 40 Cyc. 1038; Woerner, Am. Law of Adm. (2 ed.) § 28; Ann. Cas. 1914D, 336, 343.

56 Cannady v. Lynch, 27 Minn. 435, 8 N. W. 164; Killop v. Duluth St. Ry. Co., 53 Minn. 532, 537, 55 N. W. 739.

57 In re Nelson's Will, 39 Minn. 204, 210, 39 N. W. 143.

58 In re Storer's Will, 28 Minn. 9, 8 N. W. 827. See Buck v. Buck, 126 Minn. 275, 148 N. W. 117.

ion directly on the issue in controversy, namely, whether the testator was of sound mind.5" A physician who had treated the testator professionally about the time of the execution of the will was asked, "What was the infirmity of which he complained and he was consulting you?" This was objected to as calling for a confidential communication between physician and patient, and the objection was sustained. There was no offer to show that the ailment which the physician was treating had any relation to testator's mental condition. Held, no error.

63

60

166. Evidence-Sufficiency-Findings that the testator had testamentary capacity held justified by the evidence. Findings that the testator was not of sound mind held justified by the evidence.62 Findings that the testator had testamentary capacity held not justified by the evidence. The supreme court will not reverse the findings of the trial court or jury on the question of the competency of the testator unless they are clearly and manifestly against the evidence. It will not do so merely because it would have found differently if the question had been presented to it originally.**

UNDUE INFLUENCE

167. What constitutes-A will must be the voluntary act of the testator. If a will is the result of undue influence exerted on the testator by others it is void. A testator may be influenced by others in making his will, but he must not be unduly influenced. Undue influence is influence of such a degree that it destroys the free agency of the testator, so that the will which he executes is not his will but that of another. It may be exerted through threats, fraud, importunity, excessive entreaty, or by the silent, resistless power which the strong can exercise over the weak and infirm. Entreaty, importunity, suggestion, advice, persuasion,

59 Buck v. Buck, 126 Minn. 275, 148 N. W. 117.

60 Buck v. Buck, 126 Minn. 275, 148 N. W. 117.

61 Mitchell v. Mitchell, 43 Minn. 73, 44 N. W. 885; Schmidt v. Schmidt, 47 Minn. 451, 50 N. W. 598; Coates v. Semper, 82 Minn. 460, 85 N. W. 217; Little v. Little, 83 Minn. 324, 86 N. W. 408; Reed v. MeIntyre, 86 Minn. 163, 90 N. W. 319; Cady v. Cady, 91 Minn. 137, 97 N. W. 580; Clarity v. Davis, 92 Minn. 60, 99 N. W. 363; Church of St. Vincent De Paul v. Brannan, 97 Minn. 349, 107 N. W. 141; Geraghty v. Kilroy, 103 Minn. 286, 114 N. W. 838; Collins v. Dowlan, 118 Minn. 214, 136 N. W. 854; Buck v. Buck, 126 Minn. 275, 148 N. W. 117; Woodville v. Morrill, 130 Minn. 92, 153 N. W. 131;

Bush v. Hetherington, 132 Minn. 379, 157 N. W. 505; Hanson v. Hanson, 141 Minn. 373, 170 N. W. 348; In re Olson's Es tate, 148 Minn. 122, 180 N. W. 1009, 181 N. W. 569; In re Brewster's Estate (Minn.) 184 N. W. 564; In re Wood's Estate (Minn.) 184 N. W. 955; Rasmussen v. Evans (Minn.) 185 N. W. 297.

62 Sheehan v. Sheehan, 96 Minn. 484, 105 N. W. 677; Kletschka v. Kletschka, 113 Minn. 228, 129 N. W. 372; Kennedy v. Kelly, 123 Minn. 259, 143 N. W. 726; Schleiderer v. Gergen, 129 Minn. 248, 152 N. W. 541; Crowley v. Farley, 129 Minn. 460, 152 N. W. 872.

63 Kennedy v. Kelly, 119 Minn. 531, 137 N. W. 456.

64 Woodville v. Morrill, 130 Minn. 92, 153 N. W. 131.

or urging considerations of gratitude, love, esteem, affection or charity, does not constitute undue influence, unless it is so persistent and strong that it amounts to constraint, overpowering the will of the testator, so that he does not act freely but merely registers the wishes of others, and not his own wishes, in making his will. A testator may be influenced by fair means but he must not be coerced. His free agency must not be destroyed.65 A person with testamentary capacity has a right to dispose of his property by will as he pleases, though he is affected by his prejudices and predilections arising from his associations and external influences.66

168. Burden of proof-The burden of proving undue influence is on the contestant." 67 When the contestant has made out a prima facie case of undue influence, the burden of going on with the evidence shifts back upon the proponent, who has the burden throughout the trial of establishing the validity of the will. There is no definite rule by which to determine the amount and character of evidence which will make a prima facie case of undue influence and shift the burden of going on with the evidence. Proof of inequality in the will and motive and opportunity of a preferred beneficiary to exert undue influence is not sufficient to make out a prima facie case of undue influence. There must be some evidence that he did exert it.69

68

65 In re Nelson's Will, 39 Minn. 204, 39 N. W. 143; Mitchell v. Mitchell, 43 Minn. 73, 44 N. W. 885; Schmidt v. Schmidt, 47 Minn. 451, 457, 50 N. W. 598; In re Hess' Will, 48 Minn. 504, 509, 51 N. W. 614; Will v. Sisters of St. Benedict, 67 Minn. 335, 69 N. W. 1090; Tyner v. Varien, 97 Minn. 181, 106 N. W. 898; Howard v. Farr, 115 Minn. 86, 92, 131 N. W. 1071; Buck v. Buck, 122 Minn. 463, 142 N. W. 729; Woodville v. Morrill, 130 Minn. 92, 153 N. W. 131; Lewis v. Murray, 131 Minn. 439, 447, 155 N. W. 392; Thill v. Freiermuth, 132 Minn. 242, 156 N. W. 260; Rasmussen v. Evans (Minn.) 185 N. W. 297; Whitcomb v. Whitcomb, 205 Mass. 310, 91 N. E. 210; Emery v. Emery, 222 Mass. 439, 111 N. E. 287 (undue influence by a wife over her husband); 29 A. & E. Ency. of Law (2 ed.) 103, 105; 40 Cyc. 1144; 28 R. C. L. 137; Woerner, Am. Law of Adm. (2 ed.) § 31; 9 Ann. Cas. 783; 28 Id. 143; 31 Am. St. Rep. 670; 17 L. R. A. (N. S.) 477.

66 In re Storer's Will, 28 Minn. 9, 8 N. W. 827; Mitchell v. Mitchell, 43 Minn. 73, 75, 44 N. W. 885; In re Hess' Will,

48 Minn. 504, 512, 51 N. W. 614; Will v. Sisters of St. Benedict, 67 Minn. 335, 69 N. W. 1090; Tyner v. Varien, 97 Minn. 181, 106 N. W. 898; Bush v. Hetherington, 132 Minn. 379, 157 N. W. 505.

67 Mitchell v. Mitchell, 43 Minn. 73, 76, 44 N. W. 885; In re Hess' Will, 48 Minn. 504, 511, 51 N. W. 614; Fischer v. Sperl, 94 Minn. 421, 103 N. W. 502; Tyner v. Varien, 97 Minn., 181, 106 N. W. 898; Burmeister v. Gust, 117 Minn. 247, 135 N. W. 980; Buck v. Buck, 122 Minn. 463, 142 N. W. 729; Bush v. Hetherington, 132 Minn. 379, 157 N. W. 505; Thill v. Freiermuth, 132 Minn. 242, 156 N. W. 260; Rasmussen v. Evans (Minn.) 185 N. W. 297; 36 L. R. A. 737; 24 Harv. L. Rev. 329; 29 A. & E. Ency. of Law (2 ed.) 110; 40 Cyc. 1150; 28 R. C. L. 144.

68 Tyner v. Varien, 97 Minn. 181, 183, 106 N. W. 898; Buck v. Buck, 122 Minn. 463, 142 N. W. 729. See Howard v. Farr, 115 Minn. 86, 131 N. W. 1071.

69 Fischer v. Sperl, 94 Minn. 421, 103 N. W. 502; Buck v. Buck, 122 Minn. 463, 142 N. W. 729. See § 171.

169. Degree of proof required-Proof of undue influence must be clear and convincing. It is not enough to raise a mere suspicion or conjecture.70

170. Law and fact-Jury trial-The question of undue influence is one of fact and is often submitted to a jury in the district court on appeal, but there is no constitutional or statutory right to a jury trial. Whether the issue shall be submitted to a jury rests in the discretion of the trial court. After the submission of such an issue to a jury the trial court may withdraw it before a verdict is returned and itself make a finding thereon."1

73

171. Evidence-Admissibility-Undue influence may be proved by circumstantial evidence. Indeed, that is usually the only kind of evidence available."2 Evidence reasonably tending to show a mental condition of the testator rendering him susceptible to undue influence is admissible. The condition of the testator's mind and health, and his peculiar mental characteristics, may be considered. The fact that he was a person of strongly marked characteristics, of sound mind and strong will, abundantly able to protect himself, is relevant." The declarations of the testator, whether made before, after, or at the time of the execution of the will, are admissible to show the effect of undue influence otherwise proved to have been exerted, but they are insufficient alone to prove undue influence, unless possibly where they are so connected with the execution of the will as to be a part of the res gestæ." 75 Prior statements of a testator as to how he intended to dispose of his property, disconnected from the act of making his will, are not evidence of undue influence, but are evidence only of the effect which influence otherwise shown to have been exerted upon him had on his mind.76 The mere

70 In re Nelson's Will, 39 Minn. 204, 206, 39 N. W. 143; In re Hess' Will, 48 Minn. 504, 511, 51 N. W. 614. See Howard v. Farr, 115 Minn. 86, 131 N. W. 1071; 29 A. & E. Ency. of Law (2 ed.) 111; 40 Cyc. 1164.

71 Schmidt v. Schmidt, 47 Minn. 451, 50 N. W. 598; Lewis v. Murray, 131 Minn. 439, 155 N. W. 392. See Fischer v. Sperl, 94 Minn. 421, 103 N. W. 502; Id., 100 Minn. 198, 110 N. W. 853; Church of St. Vincent De Paul v. Brannan, 97 Minn. 349, 354, 107 N. W. 141; Buzalsky v. Buzalsky, 108 Minn. 422, 122 N. W. 322; Grattan v. Rogers, 110 Minn. 493, 126 N. W. 134; Buck v. Buck, 122 Minn. 463, 142 N. W. 729.

72 In re Nelson's Will, 39 Minn. 204, 206, 39 N. W. 143; In re Hess' Will, 48 Minn. 504, 511, 51 N. W. 614; Fischer v. Sperl, 94 Minn. 421, 103 N. W. 502; Buck

v. Buck, 122 Minn. 463, 142 N. W. 729; 29 A. & E. Ency. of Law (2 ed.) 110; 40 Cyc. 1155, 1164. See In re Brewster's Estate (Minn.) 184 N. W. 564.

73 Fischer v. Sperl, 94 Minn. 421, 103 N. W. 502.

74 In re Hess' Will, 48 Minn. 504, 514. 51 N. W. 614; 29 A. & E. Ency. of Law (2 ed.) 111; 40 Cyc. 1156.

75 In re Storer's Will, 28 Minn. 9, 8 N. W. 827; In re Hess' Will, 48 Minn. 504, 511, 51 N. W. 614; Burmeister v. Gust, 117 Minn. 247, 135 N. W. 980; Woodville v. Morrill, 130 Minn. 92, 153 N. W. 131; Thill v. Freiermuth, 132 Minn. 242, 156 N. W. 260. See 107 Am. St. Rep. 459; 3 L. R. A. (N. S.) 749; Ann. Cas. 1917D, 717; 29 A. & E. Ency. of Law (2 ed.) 117; 40 Cyc. 1157; 28 R. C. L. 151 76 In re Storer's Will, 28 Minn. 9, 8 N. W. 827.

fact that a will is inofficious, harsh, or unjust, is not alone evidence of undue influence, but if there is other evidence of undue influence it may be considered in corroboration thereof. Mere inequality, however great, is not alone evidence of undue influence, even though the testator was of impaired mind and memory. A person with testamentary capacity has a perfect legal right to be unjust, unreasonable or whimsical in the disposition of his property by will and his motives are not subject to judicial inquiry." The failure of a testator to provide for a child does not raise a presumption of undue influence, but it may be considered, if there is other evidence of undue influence, in corroboration thereof. It is not sufficient to show that a beneficiary under the will had motive and opportunity to exert undue influence; there must be evidence that he did exert it." Declarations of a beneficiary showing an intention to exert undue influence are admissible though the declarant is dead.80

81

172. Evidence-Sufficiency-Findings of want of undue influence held justified by the evidence. Findings of want of undue influence held not justified by the evidence.82 Findings of undue influence held justi

77 In re Storer's Will, 28 Minn. 9, 8 N. W. 827; In re Nelson's Will, 39 Minn. 204, 209, 39 N. W. 143; Mitchell v. Mitchell, 43 Minn. 73, 44 N. W. 885; In re Hess' Will, 48 Minn. 504, 51 N. W. 614; Tyner v. Varien, 97 Minn. 181, 106 N. W. 898; Buzalsky v. Buzalsky, 108 Minn. 422, 122 N. W. 322; Kletschka v. Kletschka, 113 Minn. 228, 129 N. W. 372; Buck v. Buck, 122 Minn. 463, 142 N. W. 729; Bush v. Hetherington, 132 Minn. 379, 157 N. W. 505. See Hogan v. Vinje, 88 Minn. 499, 503, 93 N. W. 523; 29 A. & E. Ency. of Law (2 ed.) 115; 40 Cyc. 1160; 6 L. R. A. (N. S.) 202; 22 Id. 1024. 78 Kletschka v. Kletschka, 113 Minn. 228, 129 N. W. 372.

79 In re Storer's Will, 28 Minn. 9, 8 N. W. 827; In re Nelson's Will, 39 Minn. 204, 208, 39 N. W. 143; In re Hess' Will, 48 Minn. 504, 511, 51 N. W. 614; Little v. Little. 83 Minn. 324, 86 N. W. 408; Thill v. Freiermuth, 132 Minn. 242, 156 N. W. 260.

80 Ex parte McKie, 107 S. C. 57, 91 S. E. 978.

81 In re Pinney's Will, 27 Minn. 280, 6 N. W. 791, 7 N. W. 144; In re Storer's Will, 28 Minn. 9, 8 N. W. 827; In re Nelson's Will, 39 Minn. 204, 39 N. W.

143: Mitchell v. Mitchell, 43 Minn. 73, 44 N. W. S85; Schmidt v. Schmidt, 47 Minn. 451, 50 N. W. 598; Will v. Sisters of St. Benedict, 67 Minn. 335, 69 N. W. 1090; Little v. Little, 83 Minn. 324, 86 N. W. 408; Reed v. McIntyre, 86 Minn. 163, 90 N. W. 319; Hogan v. Vinje, 88 Minn. 499, 93 N. W. 523; Cady v. Cady, 91 Minn. 137, 97 N. W. 580; Clarity v. Davis, 92 Minn. 60, 99 N. W. 363; Church of St. Vincent De Paul v. Brannan, 97 Minn. 349, 107 N. W. 141; Grattan v. Rogers, 110 Minn. 493, 126 N. W. 134; Collins v. Dowlan, 118 Minn. 214, 136 N. W. 854: Moe v. Paulson, 128 Minn. 277, 150 N. W. 914; Woodville v. Morrill, 130 Minn. 92, 153 N. W. 131; Lewis v. Murray, 131 Minn. 439, 155 N. W. 392; Kroschel v. Drusch, 138 Minn. 322, 164 N. W. 1023; In re Hetherington's Estate, 139 Minn. 501, 166 N. W. 1084; Hanson v. Hanson, 141 Minn. 373, 170 N. W. 348; In re Olson's Estate, 148 Minn. 122, 180 N. W. 1009, 181 N. W. 569; In re Brewster's Estate (Minn.) 184 N. W. 564; In re Wood's Estate (Minn.) 184 N. W. 955; Rasmussen v. Evans (Minn.) 185 N. W. 297.

82 Kennedy v. Kelly, 119 Minn. 531, 137 N. W. 456.