In re Watkins' Will

Munson, J.

As a general rule the contestant of a will has the burden of proof on the question of undue influence. Denny v. Pinney, 60 Vt. 524 . But when the circumstances connected with the execution of the will are such as the law regards with suspicion, undue influence is presumed, and the proponent must show affirmatively that the will was not procured by it. Re Barney’s Will, 70 Vt. 352 . This Court has applied the latter rule where the will was drawn by the principal beneficiary, and its execution was attended to by the beneficiary’s father, and the circumstances were such as made the disposition of the property unnatural; Re Barney’s Will, 70 Vt. 352 ; where the principal beneficiary under the will was the guardian of the testatrix before and at the time it was made; Re Cowdry’s Will, 77 Vt. 359 ; where the property was given to one not a relative, who had the sole charge of the testator in his illness, and advised the making of the will, and procured the attendance of the draftsman, and was present at the execution; Re White’s Will, 78 Vt. 479 ; where the bequests were mostly to religious societies in which the testatrix’ pastor felt a deep interest and the needs of which he had frequently urged upon her, and were substantially the same as in a will drawn by the pastor shortly before, and the testatrix had the last will drawn by another because the pastor was to be made a beneficiary, but submitted it to him for his advice before the execution; Re Rogers’ Will, 80 Vt. 259 . The contestants excepted to the refusal of the court to apply the rule here.

The will gives the testator’s entire estate, amounting to $22,000, to the testator’s wife. At the time it was made the testator and the beneficiary were seventy-two and ■ sixty-nine years of age respectively, and were in the fiftieth year of their married life. All their issue had died in childhood. Their life had been mainly one of labor and saving, in which the wife had done her part. She had long been accustomed to act for her husband in his absence in such matters as required attention, and in so doing had taken and receipted for moneys due him.

*28 Mr. Watkins sold his farm in. January, 1899, and after-wards bought a house in South Eoyalton to which he removed that spring. The contestants introduced a witness who testified that soon after the farm was sold Mrs. Watkins told her that she had asked her husband to make a will, saying that in case of his death she would inherit but one half of his property, and that he had said “that would be all she could use”; that a little later Mrs. Watkins told her that her husband had met one of his cousins at Woodstock and said they were very nice people; that when the South Eoyalton house was bought Mrs. Watkins mentioned that her sister’s husband had bought a house and deeded it to his wife, and asked her if she did not think Mr. Watkins ought to deed her the place he had bought. The contestants also introduced a cousin of Watkins, who testified that she often visited him while he was living on the farm, and that on two of these occasions, two or three years apart, Mrs. Watkins wished her to talk with him about his making a will, and that on both occasions she advised him to make one, but that he made little or no reply.

Watkins was stricken with apoplexy on the tenth day of July, 1905, executed his will on the twenty-third day of July, and died on the first day of the following October. The circumstances connected with the execution of the will are given by Mr. Whitham and Dr. Fish, two of the subscribing witnesses, whose testimony is referred to. About the first of June, 1905, the testator saw Whitham at his office with reference to the making of his will, and told him that he wanted to give all his property to his wife and make certain further provisions, of which matters Whitham took minutes. He saw Whitham on the street soon after this and asked him to come to the house and draw the will, but Whitham could not attend to it' then. He saw Whitham again during the week commencing July second, and it was then arranged that Whitham should attend to the matter the following week. Watkins’ attack occurred on Monday of the week agreed upon, and the fact became known to Whitham. About a week later, and after hearing further regarding Watkins’ condition, Whitham informed Mrs. Watkins by messenger of what her husband had arranged to have done, and was requested to come to the house. On his arrival Mrs. Watkins asked him what she ought to do about the matter, and *29 he advised her in regard to it; and in line with his advice and at her request he saw Dr. Fish, who was the attending physician, and it was then arranged that the doctor should keep a careful watch of Watkins’ mental condition, and that Whitham should go to the house for the purpose of drawing his will when notified by the doctor. Whitham received such notice July twenty-third, and went to the house, taking twith him his minutes of the instructions previously received. After some general conversation with Watkins, Whitham referred to the fact that they did not get around to make the will, and asked him if he would like to make it then; and Watkins looked up promptly and said “Yes” with emphasis. Whitham then asked him if he remembered the conversation they had had about it, and Watkins said “Yes”; whereupon Whitham said he would draw the will then, and proceeded to do so, having before him the minutes he had-taken. Dr. Fish came in while this was being done. Whitham read the document to Watkins when completed, and said: ‘ ‘ This gives it all to your wife, is that the way you want it?” to which Watkins replied “Yes — all right.” After the execution and attestation, and as the witnesses were about to leave, the testator said: “I am glad that is done.” Mrs. Watkins was in and out of the room while this was going on, and was present when the will was executed. The witnesses say that the testator’s mind was clear, and that he comprehended all that was said and done.

Dr. Fish testified regarding the testator’s illness that, he reached Watkins a few minutes after the seizure and found him only partially conscious, that he rallied some before he left, and that from that time until after the will was made there was a gradual improvement; that within twenty-four hours after the will was made he was taken with a severe bowel trouble which affected his mind unfavorably, and that he remained in a cloudy mental condition two or three weeks; that after this there was a period of marked improvement, which continued until two or three weeks before his death, when he became suddenly worse. A witness produced by the contestants testified that he called at the house “as near as he could tell along about the twentieth of July,” and was told by Mrs. Watkins that her husband was unconscious and not able' to see any one; that a few days later he called again and was told the same *30 thing by the nurse; that he called again awhile afterwards and was told by Mrs. Watkins that Mr. Watkins could not see anyone.

The case -is clearly distinguishable from those above referred to. The disposition of the property was not unnatural. The will was not prepared by the beneficiary. It was not made upon her initiative, nor through the instrumentality of one acting independently of the will of the testator. There was nothing suspicious in the selection of the witnesses, nor in the circumstances immediately surrounding the transaction. There was nothing unnatural in the attendance and care that the testator had during his illness. The testator’s property and business affairs had not been in the hands of the beneficiary in a way that gave her knowledge of them not possessed by the testator. It is not urged, nor even suggested, that the relation of husband and wife is in itself a relation that calls for an application of the rule. There is certainly no analogy between this relation and that of guardian and ward. The latter relation is based upon a legal recognition of the weakness of one party and the authority of the other. The situation presented to the trial court was not one that the law regards with suspicion, and its refusal to apply the rule in question was correct.

Decree affirmed and ordered certified to the Probate Court.