Estate of Busch

BARNARD, P. J.

The appellant owned a ranch on which his father, Phillip Henry Busch, now deceased, held a mortgage. Because of a default in certain payments the father started to foreclose the mortgage in the fall of 1930. Thereafter, the appellant conveyed the ranch to his father in payment of the mortgage and in consideration of an additional cash payment. The father later died, leaving a will dated April 21, 1931, containing the following provision: “I give nothing to my son, William Charles Busch. I make this provision in my will for the reason that my wife and I received ill treatment by my said son, during our old age.” It appears that another will had been executed by the deceased on the preceding day, in which a smaller share in the estate was left to the respondent executrix.

[301]

The appellant filed a contest to the probate of the will, alleging in a first cause of action that the deceased was of unsound mind and in a second cause of action charging the respondent executrix and her husband with having procured the execution of the will through undue influence, in that they had made certain misrepresentations to the decedent with respect to the appellant and that they had, in the presence of the testator, made derogatory and uncomplimentary remarks against the appellant, and that said misrepresentations and remarks had deceived the decedent and unduly influenced him in the making of said will. An answer was filed and the matter was tried before the court without a jury. At the conclusion of the evidence the respondents moved for a nonsuit as to both causes of action. The appellant consented to the granting of the motion as to the first cause of action and that motion was granted. After argument, a nonsuit was also granted as to the other cause of action and from the ensuing judgment this appeal is taken.

The only point raised is that the charge of undue influence is supported by some substantial evidence, and that the granting of a nonsuit was therefore erroneous.

While the record contains no evidence of the kind usually relied on as tending to show the use of undue influence, the appellant contends that certain statements made by the respondent executrix and her husband constitute false representations and, as such, are sufficient to make a substantial showing of undue influence. The appellant testified that Mr. Davies, the husband of the executrix, told him that if he would deed the ranch to his father he, Davies, would see that the appellant would eventually come in with the rest of the heirs on an equal basis, but that if he did not meet that demand he would see that he did not share in the will with the others. It is not even claimed that this statement was made in the presence of the testator or reported to him. The appellant also testified that on another occasion the executrix told him to leave his father’s home, and that “She said we wouldn’t pay father his interest and money due him, and she didn’t want us around there at all. . . . She said we was letting mother and father starve to death. . . . She said father would take steps to foreclose on me if I didn’t pay.”