Ollenbrook v. Bertling

Sharpe, J. Anna Klink died in Detroit on May 12, 1916. The proponents presented for probate a writing, dated July 31,1914, purporting to be her last will and testament. It was allowed and an appeal taken to the circuit court for Wayne county. The contestant claimed that the deceased was mentally incompetent to make a will and that undue influence was exercised by the proponents to secure its execution. The trial judge held as a matter of law that there was no sufficient proof of mental incompetency, and so instructed the jury. He submitted the question of undue influence, and they found against the will. A motion for a new trial was made and denied. One of the reasons assigned therefor was that the verdict was against the great weight of the evidence. The record is voluminous, consisting of more than* 400 printed pages. We have read it with care. The neglect of counsel to discuss the assignments relied on separately and to point out the pages in the printed record to which allusion is particularly made has greatly increased the task of giving consideration to the 73 errors assigned. These cannot all be reviewed in an opinion of reasonable length. We can but state the conclusions reached. [617] The testatrix was a widow 67 years of age. She had been married four times. At the time of her death, she had five living children. In the will she made several specific bequests to grandchildren. She therein stated that she had made full advancement to her daughter, Emma Footitt, of her share of her estate. She bequeathed to her daughter, Louisa Ollenbrook, the contestant, $5. The residue of the estate was bequeathed to her three children, Mary Bertling, Alice Breen and William Bohrer, share and share alike. It appears that her relations with the contestant had been strained for many years. The latter spent several months in the House of the Good Shepherd when a girl of 14. She and her sisters did not get on well together. It is her claim that in the later years of her mother’s life their relations had been friendly until a dispute arose over the repairing of a house of her mother’s she was then occupying. The date of this is not fixed in the record. There was afterwards trouble over a piano which she claimed her mother had given her and which the latter sought to reclaim. A replevin suit followed, resulting in favor of' the contestant. The will in question was drawn by Henry C. L. Forler, an attorney of Detroit. While both Mrs. Breen and Mrs. Bertling were present, both deny that they talked with their mother about it. Contestant soon after learned that a will had been made and of its contents. She was asked: “Q. Didn’t you go out and say, mother, how does it come you only gave me $5.00? “A. I would not dare; she would telephone the rest of them to come down.” On August 2, 1914, deceased caused to be published in the Detroit Tribune the following notice: [618] “From now on I disown Louisa Ollenbrook as a daughter and to have no claims whatsoever hereafter. “Anna Klink.” 1. Undue influence. In the recent case of Phelps v. Beard, 209 Mich. 266, at page 274, this court said: “While undue influence may be established by indirect and circumstantial evidence, it must be of such a nature that the inference may fairly be drawn therefrom that such influence was in fact exercised.” We also therein called attention to the opinion in Be Williams’ Estate, 185 Mich. 97, where the authorities are collected and exhaustively discussed. That the making of the will was induced by the troubles over the house and piano may, perhaps, be inferred. The testatrix may have been so angered at what she believed to be the unjust conduct of her daughter that she therefore concluded not to leave her any considerable amount of property. But such fact, if conceded, does not in itself constitute undue influence. Neither would unkind words said about contestant to the deceased by her other daughters. The influence exerted, to be deemed “undue,” must be such as amounts to moral or physical coercion, so that the testatrix was prevented from exercising-her own judgment and free will, and her act became, in effect, that of another. These controlling principles were stated to the jury in the instructions of the court. When applied to the testimony tending to support the claim of contestant, there is little, indeed, from which any fair inference of undue influence can be drawn. We are always loath to disturb the verdict of a jury when any competent evidence has been submitted on which it can be founded.. But the right of the proponents to have this question reviewed was reserved to them by their motion for a new trial, and we cannot evade the necessity for its determination. The rules by which this court should be governed [619] in considering this question are well stated in Hintz v. Railroad Co., 132 Mich. 305. It is therein said: “We are also bound to bring to the support of the decision of the trial judge all reasonable presumptions which arise from his superior opportunity to determine the credibility of witnesses. When, however, in accordance with these principles, it is apparent from the record, notwithstanding every reasonable presumption in support of his decision, that the trial judge erred in refusing to set aside the verdict on the ground that it is against the weight of the testimony, the duty of this court to overrule that decision is manifest. Whipple v. Railroad Co., 130 Mich. 460; Baldwin v. Railway Co., 128 Mich. 417; Cole v. Railway, 132 Mich. 122.” See, also, Krouse v. Railway, 166 Mich. 147. The testimony bearing on this charge cannot well be reviewed. There is no direct evidence tending to support it. It is founded on statements and acts of the testatrix and the beneficiaries under the will from which such influence is sought to be inferred. These, in our opinion, have little probative, force. Besides, we find so much in the record tending to show that testatrix fully understood what she was* doing and felt justified, in consequence of the conduct of contestant, in making her will as she did, that we feel constrained to hold the verdict was so clearly against the weight of the evidence that a new trial should have been granted. 2. Many pages in the brief of counsel for proponents are devoted to the exclusion of an unsigned letter claimed to have been sent by contestant to the deceased. We do not find that this letter was offered after proof had been submitted which rendered it competent. 3. Much latitude was allowed contestant’s counsel on the cross-examination of the proponents, who were beneficiaries under the will. We find no abuse of dis [620] cretion in this respect on the part of the trial court. The proofs tending to support a charge of undue influence usually consist of facts and circumstances from which it may be inferred. The other errors assigned have been considered. They are not likely to arise on a new trial. Proponents are entitled to costs. We feel, however, that the allowance for printing the record should be limited to 250 pages and that’ for printing the brief to 100 pages. Very little of the testimony is summarized and the greater part of the brief is made up of quotations of testimony from the record. In the brief filed by counsel for the proponents, language is employed to which we must refer. Criticism of the trial judge, entirely uncalled for, is indulged in. Had our attention been called to such statements before the hearing, the brief would doubtless have been stricken from the files. The long experience of counsel as a practitioner should cause him to appreciate that such a course cannot be tolerated. While judicial officers are human and make mistakes, the presumption of their integrity must be accepted by all counsel. The Constitution and laws provide a method by which an attack may be made upon them, which they may have an opportunity to meet. Any other course pursued, tending to belittle them and detract from the dignity attached to the office, must be met with condemnation. The verdict and judgment will be set aside, and a new trial granted. Moore, C. J., and Steeee, Brooke, Fellows, Stone, Clark, and Bird. JJ., concurred.