IN RE WOOD ESTATE

SOURIS, J.

This is a will contest case in which contestant attacked the validity of her uncle's alleged last will and a codicil thereto. Her uncle, Albert F. Wood, died in 1960 at the age of 91 years. At jury trial in circuit court contestant argued that the will and codicil should be set aside because their execution had been procured through undue influence exercised upon testator by proponent May Flemming. At the close of all proofs the court granted proponents' motion for a directed verdict, reasoning that there was nothing in contestant's proofs which would suffice to sustain a jury finding of undue influence.

On appeal, as at trial, contestant argues, and we agree, that sufficient evidence, viewed in the light most favorable to her (In re Hartlerode's Estate, 183 Mich. 51, 54), was produced to establish the existence of a confidential or fiduciary relationship between Miss Flemming and testator and that, such relationship existing, the receipt, by Miss Flemming and interests which she represented, of benefits as a result of the questioned instruments raised a presumption that testator's execution thereof was secured by her undue influence. The jury might not have been willing to accept as preponderantly true the proponents' contrary proofs, in which event the presumption would suffice to sustain a jury verdict for contestant. Under such circumstances, the trial judge should not have taken the case from the jury by his directed verdict.

In Van't Hof v. Jemison, 291 Mich. 385, this Court had occasion to consider the definition of a confidential relationship. Defendants appealed from the chancellor's decree awarding to plaintiff the proceeds of certain bank accounts which had stood jointly in the names of one of the defendants and decedent.

"Another point in issue is whether there was a confidential or fiduciary relationship existing between Mrs. Meyers and Mr. Jemison.

"`One founded on trust or confidence reposed by one person in the integrity and fidelity of another. * * * The term is a very broad one. * * * The rule embraces both technical fiduciary relations, and those informal relations which exist whenever one man trusts in and relies upon another.' Black's Law Dictionary (3d ed), Fiduciary or Confidential Relations, p 775.

"The foregoing is but one of many definitions to be found of such a relationship.

"Mr. Jemison was acting in a capacity of trust and confidence in his dealings with and for Mrs. Meyers. She had the utmost faith in him. He was trusted in handling the bank accounts for her, and acted solely as her agent in these transactions. These acts would come within the definition. Such a relationship existing, the burden is upon defendants to show the validity of the gift and that no undue influence was exercised by the donee." 291 Mich. 385, 393, 394.

3 Pomeroy, Equity Jurisprudence (5th ed, 1941), § 956a, is in accord with this broad definition:

"Courts of equity have carefully refrained from defining the particular instances of fiduciary relations in such a manner that other and perhaps new cases might be excluded. It is settled by an overwhelming weight of authority that the principle extends to every possible case in which a fiduciary relation exists as a fact, in which there is confidence reposed on one side, and the resulting superiority and influence on the other. The relation and the duties involved in it need not be legal; it may be moral, social, domestic, or merely personal. If a relation of trusts and confidence exists between the parties — that is to say, where confidence is reposed by one party and a trust accepted by the other, or where confidence has been acquired and abused — that is sufficient as a predicate for relief. The origin of the confidence is immaterial."

Contestant produced ample evidence that a confidential or fiduciary relationship, as this Court has broadly defined the terms, existed between testator and Miss Flemming, by which we mean only that a jury would have been entitled so to find on the basis of that evidence. Testator lived and worked on an upper floor of the four-story Wood building, in which Miss Flemming had occupied a ground-floor office for over 30 years. Miss Flemming was on duty at least five days a week, during which correspondence was channeled through her, as were testator's visitors and telephone calls. She paid herself and other employees by checks drawn upon testator's bank accounts and signed by her. On March 25, 1953, testator opened an individual checking account with power of attorney vested in Miss Flemming, and on June 27, 1957 he opened a joint savings account with her. Several safety deposit boxes were rented, access to which was had either by testator or Miss Flemming.

Miss Flemming was a trustee with important powers under certain trusts established by testator, and was an executrix of his challenged will. The chronology of trusts, wills, and other matters, including benefits obtained by Miss Flemming from testator during his lifetime and by will, is set forth in the margin.1 Favorably viewing all these evidentiary facts, we conclude that a jury could find a relationship of trust and confidence between testator and Miss Flemming; indeed, as a trustee she was a fiduciary. Once such a relationship is established and the fiduciary or an interest which he represents benefits therefrom, the law recognizes a presumption that he in whom trust was reposed exercised his influence unduly.

In In re Hartlerode's Estate, 183 Mich. 51, contestant attacked provisions of her mother's will which bequeathed personalty and realty to her stepfather for life, and upon his death 1/2 to contestant and 1/2 to a church.

"At the trial in the circuit court, at the close of the testimony, the court directed a verdict and judgment for the proponent, and the will was admitted to probate. Contestant has appealed, and the principal contention is that there was a question for the jury upon the subject of undue influence. In stating the case the contestant's evidence is to be considered in its aspect most favorable to her; for, if, in giving contestant's evidence its strongest probative force, it was sufficient, unexplained, to support a verdict, then she was entitled to have the case submitted to the jury." 183 Mich. 51, 53, 54.

The Court considered contestant's proofs and concluded that decedent's relations with the rector of the beneficiary church were such as to raise a presumption of undue influence, and therefore reversed for new trial.

"There are certain cases in which the law indulges in the presumption that undue influence has been used, as where a patient makes a will in favor of his physician, a client in favor of his lawyer, or a sick person in favor of a priest or spiritual adviser, whether for his own personal advantage, or for the advantage of some interest of which he is a representative. This rule has been recognized and applied by us." 183 Mich. 51, 60.

It should not be thought, however, that the Court was restricting the presumption to the enumerated situations, for after discussing some cases supporting the presumption the Court (p 61) noted: "The case of Ross v. Conway (1892), 92 Cal. 632 (28 P 785), is worthy of examination on this subject." 183 Mich. 51, 61. In Ross plaintiff sought to set aside certain deeds of trust made for the benefit of a church and its pastor, alleging that they had been obtained by undue influence. In affirming a lower court finding favoring plaintiff, it was stated (pp 635, 636):

"The rule is inflexible that no one who holds a confidential relation towards another shall take advantage of that relation in favor of himself, or deal with the other upon terms of his own making; that in every such transaction between persons standing in that relation the law will presume that he who held an influence over the other exercised it unduly to his own advantage; or, in the words of Lord Langdale in Casborne v. Barsham, 2 Beav 76, 78 (48 Eng Rep 1108), the inequality between the transacting parties is so great `that, without [any] proof of the exercise of power beyond that which may be inferred from the nature of the transaction itself, this court will impute an exercise of undue influence;' that the transaction will not be upheld unless it shall be shown that such other had independent advice,[2] and that his act was not only the result of his own volition, but that he both understood the act he was doing and comprehended its result and effect. This rule finds its application with peculiar force in a case where the effect of the transaction is to divert an estate from those who, by the ties of nature, would be its natural recipients, to the person through whose influence the diversion is made, whether such diversion be for his own personal advantage, or for the advantage of some interest of which he is the representative. It has been more frequently applied to transactions between attorney and client or guardian and ward, than to any other relation between the parties, but the rule itself has its source in principles which underlie and govern all confidential relations, and is to be applied to all transactions arising out of any relation in which the principle is applicable. It is termed by Lord Eldon `that great rule of the court that he, who bargains in [any] matter of advantage with a person placing confidence in him is bound to show, that a reasonable use has been made of that confidence.' Gibson v. Jeyes, 6 Ves, Jr 266, 278 (31 Eng Rep 1044). It was said by Sir Samuel Romilly in his argument in Huguenin v. Baseley, 14 Ves 273, 285, 286, 300 (33 Eng Rep 526, 531), that `the relief stands upon a general principle applying to all the variety of relations in which dominion may be exercised by one person over another,' — a principle which was afterwards affirmed by Lord Cottenham in Dent v. Bennett, 4 Mylne & C 269, 277 (41 Eng Rep 105, 108), saying that he had received so much pleasure from hearing it that the recollection of it had not been diminished by the lapse of more than 30 years." 28 P 785, 786.

From the foregoing authorities it is evident, then, that a presumption of undue influence was operative in this case of Wood, Miss Flemming, viewing contestant's evidence favorably, having been in a confidential and fiduciary relation to testator and the diversions effected by the questioned will and codicil having been "for [her] own personal advantage, or for the advantage of some interest of which [she] is the representative." Ross, supra. Proponents argue that the proofs at best established merely that Miss Flemming was testator's secretary and did not disclose that he reposed any special confidence in her, and further that if a presumption of undue influence did exist it was rebutted by evidence that an attorney was consulted in connection with preparation of the will and codicil and that the presumption having been rebutted, a directed verdict was proper. While the rebuttal evidence produced by proponents sufficed to overcome the force of the presumption of undue influence as a mandatory inference, it did not have the effect of overcoming the force of the presumption as a permissive inference to be submitted to the jury for evaluation.

Presumptions in the law are almost invariably crystallized inferences of fact.3 Experience has taught that if certain evidentiary facts be established, there is such a strong practical likelihood that another stated fact will be true that that fact may be presumed.4 The law's special recognition of this lesson of experience is expressed by its rulings that if a litigant proves evidentiary facts A and B, then fact C's existence will be presumed.

The immediate legal effect of a presumption is procedural — it shifts the burden of going forward with the evidence relating to the presumed fact.5 Once there is a presumption that fact C is true, the opposing party must produce evidence tending to disprove either facts A and B or presumed fact C; if he fails to do so, he risks jury instruction that they must presume fact C to have been established.6

Suppose, however, that such controverting evidence is produced. The initial force of the presumption as a procedural rule of law shifting to the opposite side the burden of going forward with the evidence to avoid a directed verdict is spent and so fact C is no longer the mandatory inference it otherwise would have been. Nonetheless, the evidentiary facts A and B from which fact C could be inferred, and would have been inferred mandatorily but for the controverting evidence, are still present for jury consideration. Instead of being a mandatory inference, fact C now is merely what it would have been but for the attachment of the term "presumption" to the particular evidentiary situation involved, namely, a permissible inference.7 It may be that in the course of decision by a properly instructed jury fact C will again become more than a mere permissible inference, see discussion infra, but in any event, for the purpose of determining the propriety of a directed verdict where controverting evidence has been produced, it is at least a permissible inference. Thus, generally speaking, a verdict may not be directed solely because evidence tending to controvert facts A and B or presumed fact C has been introduced.

This does not mean, of course, that in no case when evidence is introduced controverting a presumption or the facts upon which a presumption is based may a verdict be directed. The standard used to determine the propriety of a directed verdict is the same as if the presumption, as a rule of law, were never involved — namely, a directed verdict against a litigant is proper only if the evidence and permissible inferences therefrom, viewed most favorably to that litigant, leave no room for disagreement thereon among reasonable men.8

That the bench and bar may not be led astray by our present pronouncements, it is perhaps appropriate that we say a few words concerning jury instructions in cases in which presumptions are involved. Before we do, however, we caution bench and bar, as we did in Frederick v. City of Detroit, 370 Mich. 425, 431, 432, that the language we use in this appellate opinion may not be adopted uncritically for purposes of jury instruction. What we write is written for minds drilled in the ways of the common law, skilled in applying legal abstractions to evidentiary facts, and not for the instruction of jurors. That frequently difficult task of jury instruction rests in the first instance with the trial judge who must translate our legal rulings, cast in the law's shorthand abstractions, into language comprehensible by the jury and directly relevant to the evidentiary facts of the case being tried. See our similar comment in Hill v. Harbor Steel & Supply Corp., 374 Mich. 194, 207.

We have held with respect to statutory presumptions that in the absence of "clear, positive, and credible presumption-rebutting evidence that would justify elimination of the presumption by the trial court as a matter of law", the jury should be "instructed to apply the presumption unless it found from the evidence that the presumption had been rebutted." Garrigan v. LaSalle Coca-Cola Co., 362 Mich. 262, 267. In the case of common-law presumptions, e.g., that of due care, we have held that a party in whose favor the presumption operates is entitled to an instruction that "the jury should entertain a presumption that decedent was acting with due care unless they found contrary and credible testimony." Britten v. Updyke, 357 Mich. 466, 473. It appears from our prior opinions that we have drawn no distinction between jury instructions applicable to statutory presumptions and those applicable to common-law presumptions,9 nor can we see any compelling reason in logic or policy for such a distinction, assuming, of course, that the presumptions involved arise from evidentiary facts of probative inferential worth.

The manner in which the jury is informed of the existence of the presumption and its effect will vary according to the nature of the evidentiary conflict in the case:

(1) If plaintiff's presumed fact C is based on evidentiary facts A and B, and defendant introduces evidentiary facts which if true would disprove facts A and B and so preclude fact C as a logical inference, the jury should be instructed concerning the evidentiary conflict and told that only if it believes plaintiff's evidence of facts A and B should it presume fact C to be true. The presumption as it goes to the jury under these circumstances is a conditional mandatory inference.10

(2) However, instead of introducing evidence directly controverting plaintiff's facts A and B, defendant might introduce evidentiary facts D and E, whose existence would not be inconsistent with facts A and B but from which could be inferred the nonexistence of presumed fact C. In such circumstances the jury could believe both sets of evidentiary facts without logical inconsistency, and so have two different inferences open to it. By instruction the jury should be told of the existence of the presumption of fact C, and that some weight may be given to it as embodying a course of experience, but that the jurors are not bound by law to find the presumed fact if they find that the inference permissible from facts D and E overcomes the inference of fact C.11

(3) If defendant attacks plaintiff's evidentiary facts A and B and, in addition, presents evidentiary facts D and E permitting an inference inconsistent with the presumption of fact C, the jury should be instructed that if the jurors believe facts A and B and disbelieve facts D and E, then they must presume fact C to have been established, but if they disbelieve facts A and B or if they conclude as practical men and women that the inference permissible from facts D and E has a closer relation to the circumstances of life as they know them than does presumed fact C, then they should find that fact C has not been proved. In such a situation the presumed fact C is a mandatory inference only in the event that the jury believes facts A and B and regards presumed fact C as a more likely inference than that permitted by facts D and E.

(4) Finally, in every case in which evidence has been offered to rebut presumed fact C, the jury should be instructed that in the event it cannot decide upon which side the evidence preponderates, then as a matter of law fact C must be presumed.

It follows from an application of the foregoing precepts to this case of Wood that we must hold that the trial court erred in directing a verdict against contestant. Contestant relied upon a presumption of undue influence arising from evidentiary facts of the existence of a confidential relationship between testator and Miss Flemming and of the receipt of benefits by Miss Flemming as a result of such relationship. Proponents countered in two ways. First, they introduced directly controverting evidence against the contestant's evidentiary facts giving rise to the presumption.12 Second, proponents introduced evidentiary facts (that testator's 1959 codicil was prepared by, and executed in the presence of, an attorney) which did not controvert contestant's evidentiary facts, but from which the jury could draw an inference that testator had received effective independent legal advice in disposing of his estate, which inference was permissibly inconsistent with contestant's presumed fact of undue influence. We may refer to proponents' evidence of this nature as "inferentially inconsistent evidence". Until resolution of the factual issues thus presented the presumption of undue influence could not be characterized as a mandatory inference, but it nonetheless remained in the case as at least a permissible inference, thereby forestalling, except in circumstances noted supra, a directed verdict against contestant.

It is evident that the instructional context of this case is similar to that considered supra in paragraph (3). Accordingly, the jurors should have been instructed that if they believed contestant's proofs of a confidential relationship and of receipt of benefits resulting therefrom rather than proponents' evidence negating a confidential relationship13 and if they also disbelieved the inference, that testator had independent legal advice in making testamentary disposition of his estate, an inference permissible from proponents' evidence,14 then they should presume that undue influence had been proved. However, if the jury disbelieved contestant's evidentiary facts and instead accepted as true proponents' evidence that no confidential relationship existed or if, while believing a confidential relationship existed, nonetheless they gave greater weight to the inference that testator had independent legal advice than to the inference of undue influence, then they should have been instructed to find that undue influence was not proved. Finally, the jury should have been instructed, in accordance with paragraph (4), supra, that in the event it could not decide upon which side the evidence for and against the presumed fact of undue influence preponderated, then as a matter of law it should find that undue influence had been proved.

We recognize that the theory of presumptions and their function as here considered and applied runs counter to language in some earlier decisions, particularly those involving the presumption of undue influence. While attempting no detailed expurgation, it may be noted that in some cases which appear to be authority for the proposition that if evidence is introduced to rebut the presumption of undue influence, a directed verdict is in order, e.g., In re Jennings' Estate, 335 Mich. 241, the discussion is dictum, while in others, e.g., In re Grow's Estate, 299 Mich. 133, affirmance of a directed verdict against a contestant was probably justified because contestant's proofs were insufficient, even viewed favorably, to establish a confidential relationship, or, as in Hill v. Hairston, 299 Mich. 672, the review was de novo and so this Court itself was sitting as trier of the facts. However, it is our view now that cases like In re Haskell's Estate, 283 Mich. 513, and In re Teller's Estate, 288 Mich. 193, were erroneously decided and, therefore, should be overruled expressly. In both of those cases this Court rejected contestants' claims on the ground that presumptions of undue influence arising from fiduciary relationships had been "overcome", as a matter of law, by evidence of independent legal advice. The issue should have been submitted for the jury's decision in each case.

Reversed and remanded. Costs to appellant.

KAVANAGH, C.J., and BLACK, SMITH, and ADAMS, JJ., concurred with SOURIS, J.

DETHMERS, J. (dissenting).

I do not agree with Mr. Justice SOURIS' apparent thesis that the presumption of undue influence arising from proofs of the existence of a fiduciary relationship between the testator and a beneficiary under the will may be permitted to stand as evidence in the face of rebuttal evidence. Such presumption may be introduced to supply the want of real facts but does not obtain against substantive proofs. When positive proof enters the door, contrary presumptions of this character fly out the window. Michigan Aero Club v. Shelley, 283 Mich. 401 (1938 US Av R 134, 1 Av [CCH] 750); Bradford v. Goldman, 290 Mich. 338. Presumptions cannot be weighed against credible evidence. Krisher v. Duff, 331 Mich. 699; Heckler v. Laing, 300 Mich. 139.

I am unwilling to join in overruling In re Teller's Estate, 288 Mich. 193, or in washing out the discussion of the presumption question in the case of In re Jennings' Estate, 335 Mich. 241, as mere dictum or overruling it by implication or otherwise.

In Teller and In re Bromley's Estate, 113 Mich. 53, and In re Grow's Estate, 299 Mich. 133, the presumption was held to have been rebutted by proof that the will had been executed, as here, after the testator had secured independent legal counsel in preparation and execution of his will. So, too, in the Jennings Case. In Grow it was so held as a matter of law.

I am unwilling to join in exposing every will, in which one in a fiduciary relationship to the testator was made a beneficiary, to the speculations of a jury as to undue influence when the only evidence in the case is to the contrary. That would impinge too greatly on the right of the testator to determine the objects of his bounty and to include among them those who were particularly kind or helpful to him. Devoted children, relatives, or trusted friends of the testator would respond at their peril to his requests for business advice or assistance if that would automatically subject his natural desire, expressed in his will, to compensate or reward them, not only to a presumption of invalidity but also to jury guesswork, in defiance of the only evidence on the subject which is contra. It would give a jury too much leeway, wafted on the wings of a presumption, to overcome the testator's will without any evidence to warrant it.

There having been no actual proof, independent of the presumption, of the exercise of undue influence here that overcame the will of the testator, judgment below, upholding the will, should be affirmed accordingly, with costs to plaintiffs-appellees.

KELLY, J., concurred with DETHMERS, J.

O'HARA, J. (concurring).

I concur in the result reached by Mr. Justice SOURIS, but with Mr. Justice DETHMERS I am not prepared to overrule the precedential cases dealing with the evidentiary effect of presumptions as the term has been historically used.

The beneficiary here, as a trustee, stood in a fiduciary relationship to the testator. On the basis of the whole record the question of the exercise of undue influence was for the jury irrespective of the effect of any presumption.