In Re Dillard's Estate

KORNEGAY, J. This is a proceeding in error coming from the district court of Jefferson county, Honorable E. L. Richardson being the trial judge. It was a proceeding to admit to probate the last will of Josiah Hamilton Dillard. He died on the 30th day of September, 1927. He signed the will on the 24th day of September, 1927. He was 08 years old when he signed the will. Originally he came from Mississippi, and settled in the Indian country, and had done business near where he died for a great many years. He was a cattle man, and engaged in farming; he had' oil interests and was a large real estate owner. He had been deputy sheriff of Carter county, was a man of high degree in Masonry, and had accumulated a very large fortune, consisting of lands, oil royalties, cattle and money in bank. He was a man of determination and strong will power. He had raised two families, or rather had raised one and had started on another before his death. He had trouble with his first wife, and' about 1922 she sued him for a divorce. In the divorce proceeding he gave her one-half of what they had at the time, mostly being deeded to her, parily to her adult children. In the argument it was claimed by the attorney for the proponent of the will that the amounts given to the older children were voluntary, while the attorneys who opposed the will argued that the amounts given the older children were practically forced as a result of the divorce procedure. He seems to have led' a very active life, but in the last years of his life, though he still pursued his business closely, his health was breaking. He evidently came under the care of Dr. Von Keller, who treated him at the hospital for mercurial poison and Bright’s disease, but he got out of the hospital as soon as possible and did not seem to pay' much more attention to what Dr; Von Keller wanted him to do. However, he had a family physician, Dr. Boadway, who had been the family physician for about a year. He took sick at home. At that time he had two small children, one that was 20 months old at the time of the trial in this case, and one three and one-half years old, according to the testimony of the second wife. He was moved to the hospital by his doctor in order that he might get better attention than he was able to get at home. A professional nurse, Eva Claiborne, was furnished him. He continued however, to transact more or less business after he went to the hospital. He had a bookkeeper and office man, who had been in his employ for about six and one-half years. Erom time to time in the transaction of his business, the bookkeeper would come up to visit him, and make reports. He had been thinking of making a will for some time, and had been in consultation with an attorney, about 28 years of age, by the name of Thomas Norman. The father of this attorney had been his trusted' friend and advisor years before. The testator had all confidence in the young man, and he selected him to be his attorney, and he had filled this station for some years. Dr. Von Keller claimed that he had Bright’s disease when he had treated him some time before. Dr. Boadway claimed that he did not have Bright’s disease, but diagnosed his ailment early as being that of cancer of the liver with the stomach involved. Dr. Boadway attended him regularly twice a day while he was in the hospital. The nurse kept a chart showing his physical condition, his temperature, pulse and respiration, and also showing when medicine was administered to him, and when food was given, and occasionally would write remarks on it as to whether the patient was resting well or not. He gradually grew weaker. On the 23rd of September, 1927, the doctor advised him that 'his case was hopeless. The will that had' been thought of and discussed and partly prepared was then prepared in full, after suggestions had been made by the testator as to its general outline and some minute details. It was prepared by his trusted attorney, and there is not much evidence that anybody else knew much about what was in the will, except the testator and his attorney. The second *170 wife seems to have been ignorant as to what was in it, though she was with the deceased at his bedside during his last sickness. The witnesses to the will were the doctor who attended him, the bookkeeper who was his confidential man, and who had carried on business negotiations for him while he was in the hospital, and two other persons, one of whom was a vice president of a bank of which the testator was a customer and in which he held a large deposit, and the other was an employee, of another bank of which the deceased was a customer and in which he had' large deposits at the time of his death. The wife and an older son were present when the parties came to attest the will, and they were requested by the deceased to leave the room, which they did. The will was made in duplicate. When the bankers came to witness the will, they were spoken to by the testator, and were asked to act as witnesses to the will. He did the same thing to his family doctor. The lawyer who prepared the will was the son of a life-long friend, and was one in whom the testator had implicit confidence. For quite a while.they had offices next door to each other in the Norman building. One of the copies of the will was returned to the lawyer and taken to the office, the other was retained by the testator. The chart kept by the nurse showed the «late of the health of the deceased, and the progress of the disease, and when the period of exhaustion came. He died six days after the will was made, according to the chart. During the last two days he was very low, and' finally on the last day the chart says he was ‘‘irrational.” The will on its face appears to be fair. It was executed with all' the formalities prescribed by the statutes. It provided for every member of bis family, not omitting the divorced wife. The statement, contained in the will, shows that he devised to her the allotment of a deceased son by her that the testator had inherited. Aside from his devise, the property was devised and bequeathed to his heirs, the two small children getting the best of it. However, there was devised to each of the older children fully 20 times as much land as there is per head for the people of the state of Oklahoma if the land were all divided proportionately, 'besides a large amount of personal property, so that each of the elder children received under this will far more than the average person can hope to obtain in a lifetime. The will was offered for probate in the county court by Vida Dillard, who was named as executrix therein. It was attacked at once by the older children. The claim was made that the deceased did not have testamentary capacity, and that undue influence had been exercised; that the draftsman of the will, who was nominated by the testator to be the guardian of the minor children, would reap such a profit that the minor children should lose what the father had intended for them. Just how the ease was tried in county court we are not advised, and as to the evidence that was introduced, we are not advised, except what sifts through from the evidence, and the manner of its being introduced, in the district court. There were very able lawyers on both sides, and every technicality the' law knows, appears to have been, appealed to in the progress of the trial in the district court. However, the questions involved were simple. The will was not intricate. As a matter of protection for his two-babies, the deceased nominated a lawyer, 28-years of age, to be what is ordinarily known as a testamentary guardian. Under the law the testamentary guardian must give bond, and the county judge does not have to appoint him unless he is a fit and proper person. The mother could raise serious objections, if she desired, to the appointing of such a guardian. In the event the person so named succeeds in being named by the county court, he would have to give a bond to cover everything that he handled. In the event of mismanagement he was subject to-removal by the county court, and on appeal, if the county court did not do right, the district court was there to clear it, and if the district court did not do right, this court is here to reverse, modify, and render judgments-affecting the matter. Under these conditions the young man, who rejoiced over the confidence that had been placed in him by the testator, would be most carefully hedged about, if he should undertake to betray the trust that he hoped to get, provided the county court was willing. Nothing appears in the conduct of the-draftsman to indicate any overreaching. There was some intimation by the attorneys of the contestants in the progress of the case that Norman was too young to handle such a matter. However, the Constitution tells us that men of his age are eligible to the office of district judge, and men of 21 years of age to that of county judge. It also says that to be a member of this court a man does not have to be older than 30 years, and *171 we admit persons to practice law at the age of 21 years, and permit them to do as they will in their own matters as well as be the guide of others. When we examine the surroundings of the testator and the testimony that was adduced at the trial in the district court, we find that the testimony to sustain this will is positive. It came from disinterested parties who were in a position to know, and did know, the mental condition of the deceased at the time of its making. .They had been observers of the deceased,, some for years, others for a short time, but all for a sufficient length of time to know full well his mental condition. They include his family doctor, and the nurse that had gone through with it, who had made a chart showing the steps in the progress of the disease that finally resulted in his death. Those charts were in evidence. They show clearly when coma came on. In addition to these there were business men who had observed other men in the line of work they were in for years, and thereby had gained a special knowledge as to the natural conditions of men, and of the testator himself. The evidence on the other side was largely negative, consisting of the testimony of two doctors that saw him after the will was executed, and then only for a little while. Even one of them thought he could make a contract, though he could not make a will. The courts seem to think the other way, that a man sometimes has capacity to make a will who does not have the mental capacity to make a contract. During the progress of the evidence, it developed that the testator was a little anxious as to what the older children would do with what he had given them, having observed, probably, what they did with what he had given them before, but he made up his mind to chance it, and it turns out that before this controversy had ended, in fact by the time it lodged here, over half of the beneficiaries of the will had transferred their entire interest in the estate to the divorced wife, and the others save one, had transferred theirs to Max Westheimer. The divorced wife is now carrying on. Max Westheimer wants to quit and take what is given them under the will. We are called on to decide what should be done. In this matter the case turns on the mental capacity of the testator at the time of making the will. Two courts who saw and observed the witnesses and knew the parties have already decided that the mental capacity of the testator was sufficient to enable him to make a will, and thereby declare what he wanted to do with the remainder of his property. The will on its face appears to be fair. The testator was generous, but at the same time was careful to provide for the dependent little childien, and to safeguard their interests as much as possible. We cannot say that the evidence in this case points very strongly to mental incapacity of the deceased, in the light of the surroundings of the deceased, and of the opportunity of the witnesses to know and judge those things about which' they were testifying. It is true that some of the contestants testified that he did not know them. Perhaps they thought so, perhaps the man wanted, to rest. Naturally, suffering with the disease, and especially if it was cancer of the liver, the deceased would not be inclined to talk much'. However, to his nurse and to his doctor, and to his lawyer, and to his bookkeeper, he would be inclined to say what he had to say. Some objections are raised to the testimony of some of the witnesses, but wo find nothing in these objections that would warrant us in setting aside the decision of these two courts. The evidence, admitted without objections, was ample and conclusive enough to sustain the action of the district court. It is accordingly sustained, and this cause is remanded with directions to proceed with the administration according to the lines of distribution laid down in the will. LESTER, O. J:, and RILEY, 0ULLISON,, SWINDALL, and McNEILL, JJ., concur. LUTTRELL, Special Judge, concurs. HEFNER,, J., disqualified. CLARK, Y. C. J., and ANDREWS, J., dissent.