Whelan v. Burris

GRIMSON, Chief Justice. This case is before this court a second time. This time it is upon appeal from the order of the district court granting the petitioner a new trial. The case involves the contest of a will. The petitioner filed the will of her father, Henry Burris, in the county court of Grand Forks County and petitioned for its probate. In that will petitioner was the sole beneficiary except for a small bequest to a church. Her brother, Leo Burris, on behalf of himself and their six brothers and the children of two deceased brothers filed objections to the probate stating that Henry Burris at the time of the execution of the will was over 90 years of age, impaired mentally and physically; that during the last year or more of his life he had been under the care and custody of the petitioner; that she attempted to isolate him from his sons; that she had used undue influence on him to make his will in her [184] favor so that it was not his free and voluntary act. The contestant prays that probate of the will be denied. Petitioner filed an answer denying all the charges of undue influence. Hearing was had before the county judge who found for the petitioner and admitted the will to probate. An appeal was taken to the district court of Grand Forks County, and tried to a jury. Aftei- a twelve day trial the jury brought in a verdict that the will of Henry Burris “is not a valid will.” Prior to the submission of the case to the jury the petitioner had moved for a directed verdict on the grounds that the will was properly and legally executed and that there was no evidence of undue influence in connection with the execution of the will. That motion was objected to and denied. After the verdict was received the petitioner moved for judgment notwithstanding the verdict or, in lieu thereof, for a new trial on the grounds alleged in her motion for a directed verdict and further, “that the court erred in submitting to the jury the question of the validity of the will on account of its being signed by a mark” and also “that the court erred in submitting to the jury two forms of general verdict, namely; that the will is a valid will; or that the will is not a valid will.” In a further elaboration of the motion the specifications stated: “Under the court’s instructions the jury was instructed that there was more than one theory upon which they might find the will to be invalid, namely, upon the theory that the will was not properly executed by the testator by mark, or that the will was invalid on account of undue influence. There is no way to determine upon which theory the jury found that the will was invalid. It is impossible to say upon which theory of the case the jury returned the verdict complained of * * * the former being a question of law and there being no sufficient evidence to sustain the latter.” The District Court granted the motion for a judgment notwithstanding the verdict on the ground that as a matter of law the will of the testator was valid and that the proponent’s motion for a directed verdict made at the close of the testimony should have been granted. The court then ordered the judgment, entered upon the jury verdict, set aside. From that order an appeal was taken to this court. This court on that appeal found that the will was duly executed and that “the only issue submitted to the jury by the trial court was therefore whether or not the will of Henry Burris was the result of undue influence exerted upon him by Martha B. Whelan, the sole beneficiary thereunder.” On that issue this court found that the evidence sustained the verdict of the jury. The judgment of the district court was reversed and the judgment of the jury was ordered reinstated. In re Burris’ Estate, N.D., 72 N.W.2d 884, 889. On a petition for a rehearing this court granted the petitioner leave to renew in the District Court her motion for a new trial which had been made in connection with the motion for judgment notwithstanding to be used if that motion was not granted. The alleged errors argued in support of the motion for a new trial were those included in the specifications of error on the motion for judgment notwithstanding the verdict as hereinbefore set out. The district court on that argument granted a new trial and ordered, “That the verdict and judgment rendered herein be set aside and a new trial granted, costs to abide the event of the action, on the-ground that the court erred in the submission of the case to the jury for a general verdict on two different issues, one of which was erroneous.” From that order this appeal is taken. [185] The only questions for this court now are whether the case was originally actually submitted by the court for decision on two grounds, and if so, whether that constituted error under the facts in this case. To decide that we must consider carefully the record in the case. In the p-leadings the petitioner merely presents the will and asks for its admission to probate. The respondents filed objections that on account of the undue influence of the petitioner the “will was not his free and voluntary act, and that had he been free from said influence of appellant, (the petitioner), he would not have made the will in question.” They pray that the probate be denied on that ground. No issue was raised by the contestants as to the execution of the will. During the petitioner’s presentation of the evidence in the case at bar it appeared that the testator signed the will by mark. The question was raised whether he could not have signed his name. There was no dispute in the evidence presented upon that matter or on the proper execution of the will. That became entirely a question of law as we held in the former opinion. Motion was made at the close of testimony to leave that question for determination by the court but was withdrawn. That would have been passed upon by the court if it had been given the opportunity. Since that side issue was allowed to remain in the case the court had to give a pro forma instruction on the matter. The court instructed the jury that the material allegations of the petition must be established by the petitioner by a fair preponderance of the evidence. It then ■enumerated these material allegations and instructed the jury on the law defining “ 'mark’ as a part of the 'signature’ or ‘subscription’ ” and, without comment, ■briefly sets forth the contents of the statutes governing the execution and attestation of the will. Then the instructions go on to state that the claim of the contestants is that the petitioner exercised undue influence upon the testator and that the burden of proof is upon the contestants to prove such undue influence by a fair preponderance of the evidence. Then the court proceeded to give very complete instructions upon undue influence. It is claimed by the petitioner that the matter of proper execution of the will and undue influence constituted two issues that were submitted to the jury and the jury’s general verdict did not indicate on which ground it was based and that, therefore, the new trial must be had. Several cases were cited by the petitioners supporting that principle. Examination of these cases, however, shows those cases were fully submitted to the jury with sufficient evidence and complete, impartial instructions on both issues. Dubs v. Northern Pacific Railway Co., 50 N.D. 163, 165, 195 N.W. 157; McLeod v. Simon, 51 N.D. 553, 200 N.W. 790; Black v. Smith, 58 N.D. 109, 125, 224 N.W. 915, 922; Bentley v. Oldetyme Distillers Inc., 69 N.D. 587, 289 N.W. 92. In the case at bar the district court clearly indicated in the instructions that undue influence was the question of fact for the jury to decide. At the beginning of the instructions on undue influence the court said: “The question for the jury to decide in this case is this: Was the testator, Henry Burris, at the time of the making of the will involved in this case, free from undue influence? Did he make and execute the alleged will in all its provisions of his own free will and volition so that it now expresses his own wishes and intentions, or was he constrained or coerced through the undue influence, restraint or coercion of Martha B. Whelan in making his will to act against his own desire and intention as regards the disposition of his property or any part of it? Did he at the time that he signed the alleged will and executed [186] the same know what it contained, and did he intend that which the said will did with the property disposed of by him by means of the will?” Following- this quotation are several pages of instructions upon the law of undue influence without mentioning any other issue in the case. That clearly indicated to the jury what the court considered the jury had to pass upon. Further on in the charge the court said: “The court instructs the jury that when a will is contested on the ground of undue influence the issue is as to the operation and effect of the undue influence at the particular time of the execution of the will. It is not material when the undue influence was exercised, if it was present and operating on the mind of the testator at the time the will was executed. Moreover, it may be found that the person exercised undue influence upon a testator by dominating his mind even though such person was not present when the will was made.” This instruction meets the situation shown in the evidence that the will was drawn by a good attorney in the presence of another attorney, a doctor and a friend but in the absence of the petitioner, except that she was eavesdropping outside the door to the room in which the will was being drawn. This would indicate to a jury that a will might be the result of undue influence no matter how carefully the will was executed. The court carefully instructed the jury on the evidence as it bore on undue influence and actually pointed out that that was the issue for them to decide. Practically all the evidence offered bore on the question of undue influence. That evidence is largely quoted in the original opinion in this case to which we refer. See 72 N.W.2d pages 889 to and including, 898. That shows what the parties themselves believed the real issue in the case to be and why the court so completely instructed on undue influence. The verdict rendered was in accord with the instructions and the evidence, even if the case was technically submitted to the jury on two issues the effect of the instructions and the evidence was such that the jury could pass only on one issue, the undue influence. Considering the pleadings, the evidence, the instructions to the jury and our former holding in this matter we are convinced that there was in effect only one issue for the jury to pass upon, namely, undue influence. The jury could not have been misled and the verdict is clearly based on that ground. That was in effect our holding in the former case and we find no convincing reasons why that should be changed. The order of the district court granting a new trial was error and is therefore reversed. SATHRE and JOHNSON, JJ., concur.