To the general rule that one who attacks a will as the product of undue influence must assume the burden of proving that charge, there is a recognized exception in cases where the natural objects of the testator's bounty are excluded in favor of one whose relationship toward the testator was one of special confidence and controlling influence, such as the lawyer who drew the instrument and advised as to its provisions, or the guardian of the person or property of the testator, or his physician or religious counselor, or any other person occupying a clearly analogous position of trust. In such cases, there arises a prima facie presumption of undue influence which the proponents of the will must rebut by a clear preponderance of the evidence. This exception does not apply to one who was a natural object of the testator's bounty, nor does it include the relationship between parent and child. The phrase, "natural objects of the testator's bounty," as used in our law relating to testamentary capacity and undue influence, is strictly limited to those who would take as heirs at law in the absence of the will; it does not embrace any other persons, however close their attachment to the testator either by the ties of blood or marriage or by the bonds of intimacy, service or affection. The testator in the present case, who died in 1927 at the age of thirty-five, possessed of an estate of approximately $200,000, made no provision in favor of the plaintiff, his uncle and sole heir at law, but bequeathed $25,000 in cash and the major portion of the income of his residuary estate, amounting to more than $100,000, to the defendant P, a second cousin, and $20,000 in cash to the defendant D, the widow of a deceased second cousin. The jury might reasonably have found that during the boyhood of the testator, he conceived a strong affection for P, who resided at his home in Boston; that this affection continued after P had removed to East Haddam in this State, where the testator frequently visited him; that during the last ten years of the testator's life, P had control over a large share of his income and property, first, as a trustee, between 1920 and 1924, of the estate of his mother, second, as a trustee, between 1917 and 1927, of a fund the life use of which was bequeathed to the testator by his aunt, and, lastly, as co-trustee with a Boston lawyer of all his interest in his father's estate, approximating $200,000, which the testator voluntarily assigned to them two months after his father's death in 1924 upon their agreement to hold and manage the property and pay him the income for life; that, in 1923, the testator removed from his Boston home to East Haddam where, in a dwelling provided by D, he continued to live with P and D until his death under an arrangement whereby he furnished all the money for household expenses; that the testator pursued no gainful occupation and lived in an intemperate and dissipated manner, which greatly weakened his body and mind; that the will was prepared and executed in 1925 in the office of the Boston lawyer while P was in an adjoining room; that he had expressed the hope that he could be of assistance to the plaintiff, an aged farmer without means, though he had, in fact, contributed only a nominal sum to his support; and that the relationship between the plaintiff and the testator's family, though not unfriendly, was never intimate or affectionate. Held:
1. That the relationship between D and the testator was purely personal in its nature and was not such as to raise a presumption of undue influence on her part. 2. That the question, however, whether P occupied such a position of trust and confidence toward the testator that the burden of proof upon the issue of his alleged undue influence shifted from the plaintiff to him, was one of fact for the jury, which, upon the evidence, might reasonably have been resolved in favor of the plaintiff; and that the trial court erred in instructing the jury that, as matter of law, this burden rested upon the plaintiff. 3. That neither P nor D were natural objects of the testator's bounty. 4. That records of the testator's conviction on two occasions in the courts of Massachusetts for the offense of operating an automobile while under the influence of intoxicating liquor were not admissible to prove the acts charged therein.
Argued October 2d 1928
Decided December 18th, 1928.
APPEAL by the plaintiff from a decree of the Court of Probate for the district of East Haddam, approving and admitting to probate a document proposed as the last will and testament of Philip Sumner Page, late of East Haddam, deceased, taken to the Superior Court in Middlesex County and tried to the jury before Yeomans, J.; verdict and judgment for the defendants, from which the plaintiff appealed. Error and new trial ordered.
The plaintiff claimed to have proved these facts:
Philip Sumner Page, a native of Boston, died unmarried, a resident of East Haddam, on March 28th, 1927, aged thirty-five, leaving a will and an estate of approximately $200,000, and as his next of kin and sole heir at law his uncle, Frederick A. Page of Framingham, Massachusetts, the appellant.
The principal beneficiaries under the will and the amounts given them are:
George N. Phelps of East Haddam, a second cousin of the testator, $25,000 in cash and the income during the life of a "third cousin" of three-fourths of the residue, and after her death the income from the whole of the residue of the estate, amounting to over $100,000.
Mrs. Victoria Daniels of East Haddam, widow of Frank L. Daniels, a deceased second cousin, $20,000 in cash.
Miss Emma Page, a third cousin, $25,000 in cash, the net income from one-fourth of the residue, and $25,000 more in cash after the death of George N. Phelps, if she should survive him. After the termination of the life estates, the residue to Harvard College, five-eighths, and one-eighth each to a Trinity College fraternity, the Second Church in Boston, and an animal hospital in Boston.
Frederick A. Page and the testator were on very friendly terms and so continued at the date of the will, and as long as Philip lived. He is the sole surviving brother of Philip's father, Francis E. Page, who died in November, 1924, leaving to him his entire estate.
Philip's mother died when he was nine years old. He was brought up in luxury, attended Trinity and Harvard colleges, graduating from the latter at twenty-four. Prior to going to college he became intemperate and dissipated and so continued until his death; as a result of his habits, his mental and bodily strength was greatly weakened and his health impaired. He never had any remunerative occupation except that for a short time he was employed in his father's lumber yard and drove an ambulance and served as an aviation inspector during the world war.
His Aunt Annie, at her death in 1917, gave $10,000 of her estate absolutely to George N. Phelps and the residue, $30,000, to him and Francis E. Page, in trust, to pay the income from the same to Philip S. Page, who was then twenty-five years old, for life, and if he should die without issue, the remainder to George N. Phelps absolutely.
George N. Phelps accepted the trusteeship and was the active manager of the trust at the date of Philip's will and during his life. In April, 1923, Philip gave up his home in Boston and went to live with his trustee, George N. Phelps, and Mrs. Daniels, and continued to make his home there for the rest of his life.
Under a business arrangement between Phelps, Mrs. Daniels and Philip, Mrs. Daniels owned and furnished the homestead, Philip furnished the money to meet the expenses of the home and he also owned an addition to the homestead, while Phelps, having no other occupation, managed the trust from the estate of the testator's Aunt Annie for Philip's benefit and from January 2d 1925, to Philip's death, he also managed the trust estate that came from his father.
On November 7th, 1924, immediately after his father's will was probated, Philip wrote his Uncle Fred, the appellant, "I trust, Uncle Fred, that in the near future I may have the opportunity of lightening your burden in your old age." On January 2d 1925, Philip, then thirty-two years of age, assigned all his interest in his father's estate, amounting to about $200,000, in trust, to George N. Phelps and Phelps's personal attorney, William A. Quigley of Boston, to pay over the income therefrom to Philip for his life. Phelps and Quigley accepted the trust and continued as trustees as long as Philip lived, and Phelps was the active trustee in the investment and management of, and the disbursement of the income from the trust property. In the indenture of trust, Page reserved the right to revoke the trust during his own life and after the death of Phelps, but not during Phelps's life.
The will of Philip was drawn by Mr. Quigley in Boston after a personal visit by him to the homestead in East Haddam and was executed in Mr. Quigley's office in Boston, Phelps not being present at the execution but being in an adjoining room.
The plaintiff claimed: That for at least ten years prior to Philip's death, Phelps had been in a fiduciary relation to Philip and had personally managed the principal sources of his income; that during his residence at the homestead a relation of special confidence and trust existed between him and Phelps and Mrs. Daniels, who are chief beneficiaries under Philip's will but are not heirs or near relatives and take to the exclusion of the natural objects of the testator's bounty, and that by reason of Philip's habits and the weakened and enfeebled condition of his mind and body and by reason of the great influence exerted upon him by Phelps and Mrs. Daniels in consequence of their close association with him and their management of, and fiduciary relation to his property interests and affairs, Philip was induced to execute his will without any adequate knowledge of its contents, and without realizing that his sole heir at law was by it excluded from participating in his estate.
The appellees offered evidence to prove these facts:
The mother of Philip was first cousin of George N. Phelps and upon her marriage to Philip's father, they resided in the Phelps homestead with George N. Phelps and Annie M. Phelps. After the birth of Philip, his mother purchased a home in Brookline, Massachusetts, where she and her husband and George N. and Annie M. Phelps lived in this home until the mother of Philip died, and thereafter the other residents in the home lived therein with Philip until 1908 when George N. Phelps took up his residence in East Haddam, Connecticut, with Mrs. Daniels and her husband, where he has since lived. During this period Philip and George N. Phelps became much attached to each other, Philip calling him Uncle George.
Philip, while at Trinity in 1910, visited George N. Phelps and Mrs. Daniels at East Haddam very frequently.
In 1917, after graduating from Harvard, Philip enlisted in the French Army, and served until the spring of 1918, and before leaving he visited George N. Phelps and Mrs. Daniels at East Haddam for a few days.
In the spring of 1918, Philip returned to this country and entered the Naval Aviation Corps and, while on leave, spent at least one furlough with Phelps and Mrs. Daniels. After his honorable discharge in the fall of 1919, he stayed in New York until the spring of 1920, then returned to Brookline and lived with his father. In this period, he and his father on several occasions visited Mrs. Daniels and Phelps and on many occasions were with Phelps in Boston.
In April, 1923, upon his earnest request, Mrs. Daniels permitted him to become a member of her household; he so continued until his death. After January, 1926, under a definite arrangement, Philip paid the running expenses of the household. His father visited him frequently in East Haddam, and in September, 1924, was taken ill there and was nursed by Mrs. Daniels and Phelps for about four weeks, and then cared for at the hospital where he was visited daily by Phelps, Mrs. Daniels and Philip.
During the years Philip was at East Haddam, he was frequently accompanied to New York, and occasionally to Boston, by Phelps. In January, 1925, when Philip was in the West Indies, he hurried home to get back to Phelps, who was in the hospital and visited him there every day. In August, 1925, Philip went to Europe for two months, taking Phelps with him.
In 1920, he made a voluntary trust of the $40,000 from his mother's estate and named his father, Francis E. Page, and George N. Phelps as the trustees. The trust was drawn by Mr. Quigley, who was a friend and the attorney of the father and family of many years standing. The property was kept in Boston under the active management of Francis E. Page, George N. Phelps taking little or no part in the active management.
Philip revoked this trust on the death of his father and continued to hold and manage this property until his death.
Annie M. Phelps, the aunt of Philip, died in 1917, leaving the residue of her estate to George N. Phelps and Francis E. Page in trust to pay the income therefrom to Philip during his life and upon his death without issue to pay the principal over to George N. Phelps. This property remained in Boston and was managed by George N. Phelps and the income paid over from time to time to Philip.
Philip planned to travel after his father's death and requested Mr. Quigley and Phelps to act as trustees of his inheritance from his father. Mr. Quigley was a personal friend of Philip. Under the trust, Philip received the income, and the principal upon his death was to go to such persons as he should appoint by will.
None of the provisions of the trust were suggested by Mr. Quigley or Phelps.
In 1917 and 1920, Philip executed wills in which Phelps was a principal beneficiary. In the wills, Philip left a greater portion of his estate to Phelps than in the will appealed from. In neither the will of 1917 nor that of 1920, was Frederick A. Page, the uncle, mentioned.
In April, 1925, Philip invited Mr. Quigley to come to East Haddam to talk over some of his business affairs. No one was present at their conference. Mr. Quigley returned to Boston and on May 2d 1925, sent Philip a draft of his will.
The will was executed in Boston in Mr. Quigley's office in the absence of Phelps, who knew nothing of the will until Philip told him of it and its contents, to which Phelps made no reply because he felt aggrieved at the lesser provision made for him than in the previous wills.
The appellant is a farmer and was never a member of the family of Francis E. Page nor of the testator, nor was he ever invited by nor did he visit, either family.
The appellant had been unsuccessful and did not know how to manage property. He had never been on terms of intimacy with the families of Francis E. or George Page. The appellant was seventy-eight years of age when Philip executed this will. Philip had only seen him twice in the last seven years of his life, the last time being when he called at his home and gave him $100. The testator was in good health when he executed his will and was not, prior to this time or then or thereafter, dissipated or intemperate.
The testator was obstinate in his views and not easily influenced.
Rollin U. Tyler, with whom, on the brief was Albert Z. LeMoine of Framingham, Massachusetts, for the appellant (plaintiff).
Ernest A. Inglis and Samuel D. Elmore of Boston, Massachusetts, for the appellees (defendants).
The appellant claimed to have proved, as an inference from the facts proven, which are in the main outlined in the statement above, that there existed at the time of the execution of the will and during the entire time the testator had resided at East Haddam a relationship of special confidence and trust between him and Phelps and Mrs. Daniels. The appellant was the uncle and next of kin of the testator. He would take the estate of the testator in the absence of a will. He was the natural object of the testator's bounty, as that term is used in our testamentary law; it comprises whoever would take in the absence of a will because they are the persons whom the law has so designated, and in this particular, in the ordinary case, the law follows the normal condition of near relationship. The beneficiaries charged with undue influence are Phelps, a second cousin, and Mrs. Daniels a second cousin by marriage of the testator. Error is assigned in the charge to the jury upon the subject of the confidential relation claimed by the appellant to exist between the testator and Phelps and Mrs. Daniels. Our rule of law upon this matter has been frequently and determinatively stated in our opinions. Our general rule is that those who attack a will as the product of undue influence must assume the burden of proving that charge. But as we say in Lockwood v. Lockwood, 80 Conn. 513, 522, 69 A. 8: "We have recognized one exception to the operation of this maxim in trials upon the probate of a will involving the affirmation of undue influence. In certain cases — where the natural object of the testator's bounty is excluded from participation in his estate, where a stranger supplants children, and the will is in favor of the lawyer drawing and advising as to its provision, or the guardian having charge of his person and estate, or of the person occupying a clearly analogous position of trust — there is imposed upon the proponents of the will, upon the trial of the issue as thus raised, the obligation of disproving by a clear preponderance of evidence the affirmation of the actual exercise of undue influence by such beneficiaries of the will. St. Leger's Appeal, 34 Conn. 434, 450; Dale's Appeal, 57 Conn. 127, 143, 17 A. 757. This exception should not be extended beyond the limitations placed upon it in its recognition. Its justification is to be found in a rule of policy which seeks to prevent the unseemly sight of a stranger occupying such a delicate fiduciary relation, advising a testator to exclude his own family from participation in his estate for the benefit of the adviser. The exception, in practical effect, changes a permissible inference of fact into a necessary presumption of fact."
In Kirby's Appeal, 91 Conn. 40, 43, 44, 98 A. 349, MR. JUSTICE THAYER writes: "But the rule that the burden is thus shifted . . . has been established in this State. . . . We there [in Lockwood v. Lockwood] recognize the existence of the exception, call attention to the rule of policy which justifies it, and say that the exception should not be extended beyond the limitations placed upon it in its recognition. The limitations referred to are such relations existing between the testatrix and the legatee as denote special confidence and controlling influence, such as are shown where the legatee is the lawyer who draws the will and advises as to its provisions, or a guardian who has charge of the person and estate of the testatrix, and in like cases of confidence and trust. The prima facie presumption of undue influence arises out of the relation of special confidence and trust, whether the person benefited actually took part in the execution of the will or not. . . . If the evidence shows that such relation existed between the parties, the legatee not being a relative who would be an heir in the absence of a will, the presumption of undue influence arises, and will decide the issue against such legatee unless the jury believe that a preponderance of all the evidence (that of the plaintiff as well as that of the defendant) and the inferences drawn therefrom, show that the legacy was not obtained through undue influence."
Under this rule and upon the facts claimed by the appellees, Mrs. Daniels did not occupy a confidential but a personal relation. The appellant's claim that Phelps occupied toward the testator a position of confidence and trust was based mainly upon the fact that he lived with Phelps on terms of intimacy and affection; that Phelps had been one of the trustees of his mother's estate, of which the testator received the income from 1893 to 1920, when it was turned over to the testator; that Phelps was a trustee and the active manager of the trust fund from the residue of the estate of the testator's Aunt Annie, from about 1917 to the testator's death, and that two months after his father's decease the testator, who was the sole devisee and legatee, assigned all his interest in the estate, amounting to $200,000, to Phelps and Quigley on their agreeing to pay over the income to him during his life and that they acted as trustees as long as the testator lived, and that the active trustee in the management of the estate and the disbursement of the income was Phelps.
Upon the evidence so offered the question of whether Phelps occupied a position of confidence and trust toward the testator, as the appellant claimed, was one of fact for the jury under proper instruction from the court. If the jury found, and there seems no dispute as to this fact, that the testator had assigned over the far greater portion of his entire property to Phelps and his co-trustee for their direct benefit to hold and manage and pay over to him the income, they might reasonably have further found that the situation was brought within our rule and the burden of proof of undue influence shifted from the appellant to the appellees.
The court incorporated in its charge extensive extracts from the opinion from which we quote, Kirby's Appeal, 91 Conn. 40, 43, 44, 98 A. 349. This was an accurate presentation of this rule, although it would have been more helpful to the jury had the judge made application of the rule to the facts of the case. The jury asked for further instruction on undue influence. The court complied with the request by instructing the jury in part as follows: "As I said to you a while ago, where a man is in a confidential relation, as that of the lawyer who drew the will, or as a guardian and had charge of the person, in that case they were to be viewed with a great deal of suspicion if a will appeared in which they were benefited, and in such a case the burden of proof was shifted to them to prove that they did not use undue influence. But it does not seem to me that the evidence here, gentlemen, will justify. It is true that he had been trustee of the property left to Philip in the wills of his mother and his aunt, but that trusteeship had ended before this time. It is also true that he was trustee of the money coming to Philip from his father but such trust was not created by the father but by Philip himself. Philip himself had turned the money over to him to take care of for him, and it doesn't appear that he had any power to withhold the income, or anything of the sort that gave him any power over Philip so that he could compel him to do things otherwise than he desired to do. Therefore I do not believe it is a case which comes under the principle of confidential relations as to the burden of proof and I charge you that the burden of proof that Mr. Phelps exerted some undue influence is on the appellant here, and that they must prove to you by some substantial sort of evidence that appeals to you and that preponderates over the evidence on the other side that he did not exert such undue influence."
The court thus definitely instructed them that the rule as to the burden of proof in a case of confidential relation was not applicable, that that burden remained upon the appellant and did not shift to Phelps.
The court thus determined as a matter of law the issue as to whether, on the evidence submitted by the appellant, a confidential relation existed, instead of leaving that issue to the jury. This we think was error. The appellees urge that, even though the trial court was in error regarding the confidential relationship, "the rule ought not to be applied to them because under the authorities this rule is applicable only in case a stranger takes under a will to the exclusion of the testator's family and the natural objects of the testator's bounty." So, the appellees argue, since Phelps and Mrs. Daniels were those with whom the testator made his home, with whom he was on terms of intimacy and affection, and those who had cared for, and made sacrifices for him which he had reason to, and did appreciate, they were in fact the natural objects of his bounty.
Natural objects of bounty of a testator has, in our law, always connoted one meaning, and that the definite one which is found in the rule by which testamentary capacity is determined. There we say the testator when he makes his will is required among other things "to appreciate his relations to the natural objects of his bounty." This does not mean to those with whom he has been on terms of confidence, intimacy and affection, but those who will take in the absence of a will, his next of kin. St. Leger's Appeal, 34 Conn. 434, approving of Judge Phelps's charge on page 439. We use the same term in connection with the rule we are discussing in Dale's Appeal, 57 Conn. 127, 143, 17 A. 757: "In certain cases, where the natural objects of the testator's bounty are excluded from participation in his estate, where strangers supplant children, . . . the law requires the legatee at the outset to assume the burden of proving that his influence did not overcome the free agency and independence of the testator."
The natural objects of one's bounty include his children, yet in Purdy v. Watts, 88 Conn. 214, 218, 90 A. 936, we speak of these as being two classes: "We have held that where a testator cuts off his children, or the natural objects of his bounty, and makes his will in favor of a stranger holding some special relation of confidence and trust to the testator, the party attempting to sustain the will, where undue influence on the part of such beneficiary is charged, has the burden of proving that it was not procured by such undue influence."
There never, so far as we are aware, has been any confusion on the part of the profession as to who comprised "natural objects of a testator's bounty." Necessarily the law must determine these, otherwise this class would be as variable and uncertain as the opinions of the triers who might be affected by the particular circumstances of a case.
How near must the intimacy be, how close the relationship, how affectionate the conditions of their living to make the confidential relationship effective?
Practical considerations, such as these, will satisfy the judgment that a legal rule should not be based upon so unstable and changeable a footing. We have, however, drawn clearly the distinction between the confidential fiduciary relationship and the relationship of mere intimacy and service.
It was claimed in Gager v. Mathewson, 93 Conn. 539, 107 A. 1, that Lucy Sullivan, who made her home with the testator and was treated by him as a member of the household, on numerous occasions deposited checks and made purchases for him. The trial court submitted to the jury the question whether Miss Sullivan occupied such a confidential relation as to bring her within our rule and place upon her the burden of showing that she did not unduly use that relationship for her own benefit in getting a principal legacy. We held that the facts did not place her in the limited class of beneficiaries who are required to disprove undue influence. "We think," we say on page 544, "the charge of the court disregarded the limited application of this exception to the general rule of procedure, and left the jury to infer that the mere fact of a relation of peculiar confidence and intimacy, although purely personal, would put upon Lucy Sullivan the burden of disproving . . . a controlling influence over the testator. This is not the law."
The limitation of the rule is to those who are not the natural objects of the testator's bounty but hold toward him a fiduciary relation and not a mere personal one. This limitation marks with great distinctiveness the difference between the natural object of a testator's bounty in law and one whom the appellees denominate a natural object of bounty because of his relationship of intimacy, service and affection with the testator; but our law makes no such nomenclature. Again, we limit the rule by excluding from its application the relationship of parent and child, examples of which are: Mooney v. Mooney, 80 Conn. 446, 68 A. 985; Fitzpatrick v. Cullinan, 87 Conn. 579, 89 A. 92; Hills v. Hart, 88 Conn. 394, 91 A. 257; Goodno v. Hotchkiss, 88 Conn. 655, 92 A. 419.
Meriden Savings Banks v. McCormack, 79 Conn. 260, 64 A. 338, and Gager v. Mathewson, supra, are examples where we found no confidential relation. There is a definition of the natural object of a testator's bounty, in In re Campbell's Will, 136 N.Y.S. 1086, 1096, where the court said it did not mean every distant relative who is entitled to inherit from him (the testator) under the existing canons of descent. The New York court holds the view that the objects designated in this statutory term are near relatives. See also In re McCarthy's Will, 126 N.Y.S. 699.
We entertain the same opinion as to the error of the trial court that we expressed in Gager v. Mathewson, supra, at page 544: "It is impossible for us to say that the error pointed out was not material. The verdict was general and may have turned upon the question whether the burden of proof on the issue of undue influence was upon the proponents instead of the contestants."
The appellant on rebuttal offered in evidence two copies of records of courts in the State of Massachusetts purporting to show the conviction of the testator for the criminal offense of operating an automobile while under the influence of liquor.
The trial court excluded these copies. The ruling was right.
As a general rule, judgments in criminal cases are not admissible in civil proceedings to prove the acts charged. State v. Bradnack, 69 Conn. 212, 215, 37 A. 492; McKenna v. Whipple, 97 Conn. 695, 701, 118 A. 40; 2 Freeman on Judgments (5th Ed.) § 653. The record discloses no facts which would create in this case an exception to this rule.