The agreement of parties to submit questions to a jury, the
trial there, and a stipulation for returning the testimony for
consideration is a waiver of objection to jurisdiction.
When the trial court and the appellate court agree as to the
facts established, this Court accepts their conclusion.
Under the facts in this case, the jury were not warranted in
finding that the execution of the will was procured by fraud or
undue influence.
It is the rule of the federal courts that the will of a person
found to be possessed of sound mind and memory is not to be set
aside on evidence tending to show only a possibility or suspicion
of undue influence.
This was a bill filed in the Supreme Court of this District on
April 7, 1899, to set aside the following will:
"In the name of God, Amen."
"I, Mary Beyer, of the City and County of Washington and
District of Columbia, being now of sound and disposing mind, do
make, ordain, publish and declare this to be my last will and
testament: that is to say, first, after all my lawful debts are
paid and discharged, the residue of my estate, real and personal, I
give, devise, bequeath, and dispose of as follows: to-wit all the
furniture and personal effects now in the home, number 2258
Brightwood Avenue I desire to remain there during the life of my
husband Louis Beyer or so long as it remains the family home, and
in the event of the house not being retained as a family home, then
the furniture and all other personal effects belonging to me are to
go to and belong to my nephew and adopted son, born Charles Lewis
Smith but adopted by me at birth and thereafter always called Louis
Beyer, Junior."
"To my sister Elizabeth Kersinski Maus of Philadelphia, Pa., I
leave five dollars."
"To my sister Caroline Kersinski Lefyre of Brookland, D.C. I
leave five dollars. "
Page 186 U. S. 115
"To my niece Helen J. Fenton of Washington, D.C. I leave five
dollars."
"All the rest and residue of my estate, real, personal and
mixed, of which I may die seized and possessed, whatsoever and
wheresoever, of what kind, nature and quality soever the same may
be, and not hereinabove given or disposed of, I hereby give,
devise, and bequeath, unto my nephew and adopted son, Louis Beyer,
Junior, and Helen B. Johnson, my niece, in equal shares, as tenants
in common and not as joint tenants, their heirs and assigns,
absolutely and forever."
"Having full faith and confidence in the honesty, integrity, and
affection of my said adopted son and of my said niece, I leave them
all the property stated herein, knowing that they will provide a
home and home comforts for Louis Beyer, Senior, during his natural
life, but this is not to be construed to mean that said Louis
Beyer, Junior, and Helen B. Johnson are to be restricted from
disposing of any or all of the property if their judgment so
dictates, but in the event of disposing of all the property before
the death of Louis Beyer, Senior, they are to always maintain a
home and home comforts for my beloved husband, Louis Beyer,
Senior."
"Likewise I make, constitute, and appoint my adopted son, born
Charles Lewis Smith but always known as Louis Beyer, Junior, to be
executor of this my last will and testament, hereby revoking all
former wills made by me, and I request that he be not required to
give bond as such executor."
"In witness whereof, I have hereunto set my hand, subscribed my
name, and affixed my seal this fourteenth day of July in the year
of our Lord one thousand eight hundred and ninety-six in my home at
Washington, D.C."
"Mary Beyer [Seal]"
"The above-written instrument was subscribed by the said Mary
Beyer in our presence and acknowledged by her to each of us, and
she at the same time published and declared the above instrument so
subscribed to be her last will and testament, and we at the
testator's request and in her presence and in the presence of each
other have signed our names as witnesses
Page 186 U. S. 116
hereto and written opposite our names our respective places of
residence."
"P. J. Brennan"
"1418 F St. N.W. Washington, D.C."
"Wade H. Atkinson"
"707 12th St. N.W. Washington, D.C."
"Thomas C. Smith"
"1133 12th St. N.W. Washington, D.C."
The parties named as defendants were Louis Beyer, the husband of
the testatrix; Louis Beyer, Junior, a nephew; Helen B. Johnson, a
niece; Louis Beyer, Junior, as executor, and Meyer Cohen and Adolph
G. Wolf, trustees in a deed of trust executed by the husband of the
testatrix on May 13, 1897. The ground of attack was the alleged
mental incapacity of the testatrix and undue influence on the part
of Louis Beyer, Junior, and Helen B. Johnson. The personal property
belonging to the testatrix was of little value, but she owned
certain real estate, subject to a trust deed, which in the bill was
alleged to be of the value of $25,000 over and above the
encumbrance. Louis Beyer, Junior, and Helen B. Johnson, answering
separately, denied metal unsoundness and undue influence; alleged
that the will was duly executed, and challenged the jurisdiction of
the court, sitting as a court of equity, to entertain the bill. The
trustees pleaded that the bill stated nothing entitling the
complainant to relief in equity, and averred that their deed of
trust was a valid lien. Louis Beyer demurred generally. On June 20,
the court having made no ruling upon the question of jurisdiction,
the parties signed this stipulation:
"It is hereby stipulated by and between the parties to this
cause this 20th day of June, 1899, that the court may make an order
certifying certain issues, to be named in said order, to be tried
by a jury of the circuit court, and that the findings by said jury
upon said issues shall be returned to this Court; whereupon a
decree shall be entered in accordance with said findings, all
rights of appeal as in cases of issues from the orphans' court
being hereby reserved."
And thereupon the court made this order:
Page 186 U. S. 117
"Ordered by the court this 20th day of June, 1899 (the parties
to this cause consenting hereto), that the following issues to be
tried by a jury be, and they hereby are, certified to the circuit
court, to-wit:"
"First. Was the said Mary Beyer, at the time of the alleged
execution of the paper writing bearing date the 14th day of July,
A.D. 1896, and purporting to be her last will and testament, of
sound and disposing mind, memory, and understanding, and capable of
executing a valid deed or contract?"
"Second. Was the execution of the said paper writing bearing
date the 14th day of July, 1896, and purporting to be the last will
and testament of the said Mary Beyer, procured by fraud,
circumvention, or undue influence practiced or exercised upon the
said Mary Beyer by Louis Beyer, Jr., Helen B. Johnson, or by either
of them or by any other person?"
"Third. Were the contents of the paper writing bearing date July
14th, 1896, and purporting to be the last will and testament of
said Mary Beyer, known to her at the time of the alleged execution
thereof?"
This order was assented to by all the parties. In pursuance
thereof, the case came on for trial before Mr. Justice Cole and a
jury, and the jury, after hearing the testimony and the
instructions of the court, answered each of the questions in the
affirmative. A motion for a new trial was overruled by the
presiding judge. A stipulation was entered into by the parties that
the full report of the testimony and proceedings had before Mr.
Justice Cole and the jury should be produced, read, and heard by
the equity court as a part of the record on the hearing in that
court and in the appellate court to which the cause might be
carried by either or any of the parties. Thereupon, a full report
of the proceedings was presented to Mr. Justice Barnard, holding
the equity court, who, on May 14, 1900, filed an opinion sustaining
the verdict of the jury and directing a decree in accordance with
the prayers of the bill. From that decree, Louis Beyer, Louis
Beyer, Junior, and Helen B. Johnson appealed to the Court of
Appeals. On December 6, 1900, the Court of Appeals affirmed the
decree. From that decree, Louis Beyer, a severance being had,
appealed to this Court.
Page 186 U. S. 118
MR. JUSTICE BREWER delivered the opinion of the Court.
The appellant contends first, that the Supreme Court of the
District, sitting as a court of equity, had no jurisdiction of this
cause; second, that the verdict of the jury was not sustained by
the evidence, and third, that there was duress and coercion of the
jury by the court which resulted in an unjust verdict.
We pass the first question with the observation that, whatever
might have been the conclusion if the defendants had stood upon
their challenge of the jurisdiction, the agreement of the parties
to submit certain questions to a jury, the trial before the jury,
and the stipulation for returning the testimony there taken to the
equity court for consideration by the judge thereof must be held a
waiver of the objection to the jurisdiction. Under the federal
system, the same judge may preside whether the court is sitting in
equity or as a common law court. While the pleadings and procedure
are dissimilar, and the rights of the parties, especially in
respect to juries, are different, yet in many cases, a party who
appears in one branch of the court and consents to a hearing and
adjudication, according to the practice there prevailing, of an
issue presented by the pleadings and in respect to a subject
matter, which is within the general scope of its jurisdiction, may
be estopped from thereafter and in an appellate court challenging
such jurisdiction.
Reynes v. Dumont, 130 U.
S. 354,
130 U. S. 395.
This is such a case. The determination of the title to real estate
is within the scope of the general jurisdiction of a court of
equity. The issue of undue influence in respect to any transaction
such a court is competent to determine. The proceeding consented
to, and in fact had, was practically the trial of a feigned issue
out of chancery. It is too late now to raise the question of
jurisdiction.
Passing to the second question, we premise by saying that
Page 186 U. S. 119
it is well settled that, when the trial and the appellate courts
agree as to the facts established on the trial, this Court will
accept their conclusion, and not attempt to weigh conflicting
testimony.
Stuart v. Hayden, 169 U. S.
1,
169 U. S. 14, and
authorities cited in the opinion. And this rule of concurrence with
the conclusions of the trial and appellate courts is given more
weight when in the first instance the facts are found by a master
or a jury.
Furrer v. Ferris, 145 U.
S. 132, and cases cited in the opinion. These
propositions we have often affirmed. At the same time, there has
always been recognized the right and the duty of this Court to
examine the record, and if it finds that the conclusions are wholly
unwarranted by the testimony, it will set the verdict or report
aside and direct a reexamination. And after having carefully
examined the record in this case, we are constrained to the
conclusion that there is no testimony which justified the answer
returned to the second question. On the contrary, if a will is set
aside upon such a flimsy showing as was made of undue influence,
few wills can hope to stand.
The facts are these: the testatrix was a woman sixty-five years
of age; had been married forty-five years, but was childless; her
relations with her husband and sisters were pleasant; her near
relatives were two sisters, Caroline Le Fevre, the present
appellee, and Mrs. Maus, the mother of Helen B. Johnson. Another
sister had died many years ago, leaving two children, Charles Louis
Smith (known in the record as Louis Beyer, Junior) and Helen C.
Fenton. Louis Beyer, Junior, while a little child, and, on the
death of his mother, was taken by the testatrix and brought up as
her son. There does not appear to have been any formal adoption,
but he went by the name of Louis Beyer, Junior, and was recognized
and treated as her son. He was twenty-seven years old at the time
of her death. Helen B. Johnson was, as stated, the daughter of Mrs.
Maus, a sister of testatrix. She, too, lived with the testatrix the
most of her life, although it does not appear that she had been
recognized as a daughter. The testatrix died of cancer in the
abdomen. The first indications of trouble were in December, 1893,
though at that time the appearances were of an ordinary
Page 186 U. S. 120
case of indigestion, and the fact that it was cancer was not
developed until sometime in the early part of 1896, the year in
which she died. In the month of June of that year, she went on a
visit to the home of Helen Johnson's mother-in-law, twelve miles
south of Richmond. She returned about the first of July, was about
the house for a week or so after her return, and then took to her
bed, dying on July 26. When spoken to at different times prior to
her visit to Richmond about making a will, she had declined, saying
she intended the property should go to her husband; but, being
advised, either before or after her visit to Richmond, that in case
she died without a will, the property would go to her sisters and
their descendants, she decided to have a will made, and so informed
Louis Beyer, Junior, on Sunday, July 12; she also inquired if a
will made on Sunday was valid, and was told by him, after an
examination of a cyclopaedia, that it would be. He suggested an
attorney living near, to whom she objected, whereupon he proposed
to call in Mr. Brennan, who occupied an office in the same building
in which he was employed. This was satisfactory. Mr. Brennan was
sent for. Witnesses were asked to attend, among them her regular
physician. Mr. Brennan came in the afternoon, found her lying in
bed, received instructions from her how she wanted the will drawn,
and wrote it then and there. It was thereafter read to her, signed
and acknowledged by her in the presence of himself, the regular
physician, and a Mr. Sullivan, and signed by them as witnesses.
That will was similar to the one finally executed, except that it
devised the property to Louis Beyer, Junior, alone. Mr. Brennan
took the will to his office. On examination, he found that he had
left out the word "heirs," so that, as he thought, only a life
estate would pass to the devisee, and, on Monday, prepared a new
will, exactly like the one which had been executed, with the
addition of the word "heirs." He called on the testatrix and
explained the change he had made; she then said that, inasmuch as
there had to be a new will executed, she would like to have Mrs.
Johnson included with Louis Beyer, Junior. Whereupon Mr. Brennan
went to his office and wrote a will the third time, and on Tuesday
went back to the house, and there it was executed.
Page 186 U. S. 121
That is the will in dispute. It was taken by him to his office
and kept in his hands until after her death. That the contents of
this will were known to her at the time of its execution, and that
she was "of sound and disposing mind, memory, and understanding,
and capable of executing a valid deed or contract," were found by
the jury, and were abundantly proved by the testimony, among the
witnesses thereto being her regular physician, the minister who
visited her, the lawyer who drafted the will, and others wholly
disinterested.
Before noticing what is claimed to be evidence of undue
influence, we remark that the will was not an unnatural one for the
testatrix to make. As long as she supposed her husband would
inherit the real estate, she declined to make any. She meant that
he should have the benefit of the property. She found, however,
that it was necessary for her to make a will in order to secure
this result. He was an old man, and in the natural course of events
could not be expected to live many years. It is not strange that,
with the utmost affection for her sisters, she should prefer that,
after he had had the enjoyment of her property, it should go to the
nephew and niece who had made their home with her, who had been
brought up by her, and one of whom at least, was regarded as an
adopted child. So she makes a will vesting the fee in them, but
charged with the duty of furnishing a home to her husband as long
as he lived and, relying upon their affection, to give to him the
comforts of a home such as they all he had together in the past.
While she gave them the power of alienation, she coupled with it
the proviso that, whatever was done with this property, they should
still secure a home to him during his lifetime. She trusted much to
their affection, but is this singular, considering the length of
time they had been members of her family and that which she must
have known to be the relation subsisting between them and him? Yet
she did not leave provision for her husband entirely to their
affection. She directed in terms that such provision should be
made, and she doubtless believed that that direction would be
binding, and it was binding. It was in the nature of a precatory
trust, and so expressed as to be obligatory upon the devisees and
enforceable in the courts.
Colton v.
Colton,
Page 186 U. S. 122
127 U. S. 300. It
is no ground of criticism that others might have made a different
will. That she did not give the fee to her husband, but to her
adopted son and niece, burdened with this precatory trust, may have
been, owing to a fact which is at least suggested by the testimony,
that her husband was visionary, and she feared might waste his
property in developing some of his supposed inventions. That she
was justified in placing confidence in the affection of the
devisees for her husband is shown by the fact that they conveyed to
him a large portion of the property upon hearing that he was
dissatisfied with the contents of the will. It is true that,
sometime thereafter, owing to his contemplated marriage, the
pleasant relations between him and them seem to have ceased, but
this unfortunate condition does not prove that the testatrix did
not at the time have good reason to trust in their affection for
him.
Turning now to the testimony offered to show undue influence, it
comes from two witnesses, Mrs. Stone, the daughter of the appellee,
and Fanny Perry, a colored servant in the house of the testatrix.
Mrs. Stone's testimony is mainly concerning the condition of the
testatrix during her last sickness, and had a tendency to show that
she was in a drowsy condition, if not unconscious, during the last
fourteen days of her life, though as she was at the house of the
testatrix only every other day, and then for but a few minutes at a
time, her testimony was properly considered by the jury as of no
great significance and overborne by that of the physician and other
witnesses. She does testify to one thing in reference to Mrs.
Johnson which will be considered hereafter. The only other witness,
and the one upon whom the appellee substantially relies, is Fanny
Perry, the servant. Now, in respect to her testimony, and indeed
all the testimony in the case, it must be observed that there is
not a syllable tending to show that Louis Beyer, Junior, ever urged
the testatrix to make a will, ever suggested or spoke to her in
respect to the matter, and that all the connection he had with it
was in response to requests to ascertain what would be the
disposition of the property without a will, the validity of a will
made on Sunday, and in suggesting the name of a lawyer to prepare
the will and asking him to come. Now to find that
Page 186 U. S. 123
the will was obtained by undue influence on his part, when there
is not the slightest syllable tending to show that he ever said or
did a thing toward securing the execution of the will except at her
request, is a proposition which cannot for one moment be
entertained. With this must also be remembered that the will which
was first drawn -- the one executed on Sunday -- made him the sole
devisee, and that it was intended by the testatrix to vest the
property absolutely in him, so as to deprive the appellee and other
of her relatives of any interest in the property. That it did not
have that effect was owing to a mistake of the scrivener in
omitting the word "heirs" -- a mistake which, when discovered by
him, he proceeded promptly to correct -- and only when the
corrected will was presented to her did she authorize a change so
as to include Mrs. Johnson. Suppose it were true that Mrs. Johnson
did, after the first will, by her importunity, persuade the
testatrix to include her as a devisee, the change wrought no
prejudice to the interests of the appellee. It took away nothing
from her. It only added a new devisee, and that not the appellee --
another one to share in the property.
But now let us see what is the testimony which is claimed to
show that Mrs. Johnson exercised undue influence. Mrs. Stone
testified that she boarded with the testatrix for a couple of years
(and that was a year or two before the death of testatrix), and
that, during that time, when Mrs. Johnson seemed displeased at
something, she heard the testatrix say that "it was because she did
not make a will, and she never intended to make a will." Fanny
Perry testified that she lived with the testatrix about three years
prior to her death; that Mrs. Stone called at the house on the
Sunday when the first will was executed, and she heard Mrs. Johnson
say to Louis Beyer, Junior,
"You go downstairs, and after you get the wagon hitched up, take
Mrs. Stone around to the Christian Endeavor encampment first, and
then take her home; if she knows what is going on here, she won't
leave here tonight unless she gets a share in the profits;"
that she had heard Mrs. Johnson ask the testatrix to make a
will, but the testatrix refused, saying that she would leave
everything to Mr. Beyer just as it was, and for them to
Page 186 U. S. 124
stay with him and treat him right, and when he died, he would do
right by them. To which Mrs. Johnson replied: "This is the way you
are going to treat me after I have been working for you all these
years, and this will be all the thanks I'll get for doing it;"
that, after the testatrix had taken to her bed, she asked her to
make a will, but she said she would not, but would leave the
property to her husband, to which Mrs. Johnson said: "Yes, you will
leave it to him, and he will sink it in a boat or rum mill," and
the testatrix replied: "Nellie, how can you talk about your uncle
like that?" and also, "Nellie, you are harassing me to death."
Whereupon Mrs. Johnson said she would go if the will was not made,
and the testatrix replied: "You have run Mrs. Stone out of the
house to get something when I die. You said she was waiting for a
dead man's shoes, but you are the one to catch it."
We put out of consideration the fact that Mrs. Johnson
contradicts the witness and denies ever having urged the testatrix
to make a will in her behalf or to make a will at all, and inquire
whether, giving the fullest weight to this testimony, it warrants a
finding that the execution of this will was secured by undue
influence. We are clear that it does not. The conversations which
the witness states were had while the testatrix was about the house
and attending to her ordinary duties were conversations which might
naturally be had between one brought up in the family, as Mrs.
Johnson was, and one who had been to her as a mother. It would not
be strange that, having lived all her life in the family, she felt
that there was something due to her in respect to the disposition
of the property. It will be remembered that it is not influence,
but undue influence, that is charged, and is necessary to overthrow
a will. The question No. 2 puts in the same category fraud,
circumvention, and undue influence. Placing undue influence along
with fraud and circumvention interprets the character of the
influence.
Noscitur a sociis. Surely there is nothing in
these conversations which has in it anything suggestive of fraud or
circumvention, nothing wrongful or misleading.
With reference to the last conversation detailed by the witness,
that which took place after the testatrix had taken to her
Page 186 U. S. 125
bed, it may be conceded that there is a display of urgency and
petulance on the part of Mrs. Johnson and a rebuke on the part of
the testatrix, but is there enough in it to justify a finding that
the will was procured by undue influence? May not one situated as
was Mrs. Johnson properly plead her claims for recognition in a
will? May she not give her reasons why a will should be made and
why property should not be left to a particular person without
being subject to the charge of exerting undue influence? The only
threat made by her was that she would go if the will was not made.
We do not, of course, approve of such importunity to a sick person,
and it may often be carried to such an extent that a jury is
justified in finding that a will was executed in pursuance of it,
and through undue influence, but these significant facts must be
borne in mind in respect to this case: the witness, Fanny Perry,
does not locate the time of this conversation, whether before the
first will was executed or after. If before, plainly it had no
effect upon the testatrix, for she made a will giving the property
to her adopted son and leaving Mrs. Johnson out altogether. If
after, while it may have had the effect of causing the insertion of
Mrs. Johnson's name in the second, such change wrought no injury to
the rights of the appellee. If the testatrix had made up her mind
to give her property to an adopted child with a precatory trust in
behalf of her husband, then any change made in the devisees, as the
result of whatever importunity, was a change which wrought no
prejudice to the parties who were not named in either will.
We are clearly of the opinion that the jury were not, under the
circumstances of this case, warranted in finding that the execution
of the will was procured by fraud, circumvention, or undue
influence practiced or exercised upon the testatrix.
One who is familiar with the volume of litigation which is now
flooding the courts cannot fail to be attracted by the fact that
actions to set aside wills are of frequent occurrence. In such
actions, the testator cannot be heard, and very trifling matters
are often pressed upon the attention of the court or jury as
evidence of want of mental capacity or of the existence of undue
influence. Whatever rule may obtain elsewhere, we wish
Page 186 U. S. 126
it distinctly understood to be the rule of the federal courts
that the will of a person found to be possessed of sound mind and
memory is not to be set aside on evidence tending to show only a
possibility or suspicion of undue influence. The expressed
intentions of the testator should not be thwarted without clear
reason therefor.
The decrees of the Court of Appeals and of the Supreme Court of
the District are reversed, and the case remanded to the latter
court, with instructions to set aside the decree in favor of the
appellee, and for further proceedings in conformity to this
opinion.
MR. JUSTICE HARLAN and MR. JUSTICE GRAY did not hear the
argument, and took no part in the decision of this case.