Sewall v. McGovern

Kimball, Justice. The plaintiff in error filed for probate an instrument dated December 23, 1919, purporting to be the last will of Ellen Conroy, deceased, whose estate is probably of the value of $8000.00. Defendants in error, who claimed under a former will, filed written grounds of opposition, alleging (1) that the later will was not executed and attested as required by law; (2) that Ellen Conroy, at the date thereof, was not of sound mind, and (3) that the will, if made, was the result of the fraud and undue influence of proponent. The petition for probate and the contest proceedings came on for hearing at the same time. The judgment denied probate of the will, and proponent brings the case here by proceeding in error. Following the method of procedure explained in the case of In Re Latour’s Estate, 140 Calif. 414, 73 Pac. 1070, 74 Pac. 441, cited with approval in Wood v. Wood, 25 Wyo. 26, 164 Pac. 844, the proponent first offered his formal proof in support of his petition for probate. The two sub — 70 — scribing witnesses, in relating the facts attending the execution and attestation of the will, testified that the proponent himself was present at that time, and not only signed to the will the name of the testatrix, who was unable to write, but also assisted her in making her mark thereto. These witnesses were cross-examined without objection. The proponent then became a witness and was examined for the purpose of proving formal and undisputed facts, such as the death of the testatrix and the value of her estate. His direct examination was confined ,to these matters, and cross-examination was conducted without objection until a question was asked seemingly for the purpose of inquiring into the relations between the witness and Ellen Conroy in her lifetime. The argument of an objection to this question led to a consideration of the propriety of requiring the proponent then to give in evidence his own version of what hap•pened at the time of the execution of the will. The court ruled that this testimony should be given, and announced that the proponent should be examined by his own counsel with reference to the things that occurred at that time, after which counsel for contestants would be permitted to cross-examine. Thereupon the desired testimony was elicited from proponent by further examination conducted in accordance with the suggestion of the court, and this concluded the evidence in support of the petition. The court did not then expressly declare whether or not the proponent had made out a prima facie case in support of the will, nor is it claimed that a finding upon that question was then necessary, though that is suggested as the proper procedure in the opinion on the petition for rehearing In B,e Latour, supra, and was the procedure followed by the District Court in Woods v. Woods, supra. If the trial court had been of opinion that a prima facie case had not been made, it would no doubt at this point have refused probate, and thus ended the whole matter without the necessity of investigating the grounds of opposition. As it did not do this, but required the contestants to proceed with their case in opposition to the will, it is plainly indicated that the court was — 71 — then of opinion that a prima facie case had been made by-proponent, but reserved its decision upon the petition until the contest could be heard. The trial of all issues was had without a jury. During the hearing of the contest it was agreed that the evidence previously introduced upon the hearing of the petition for probate should be considered as evidence in the contest proceeding. It is contended that the court erred in ruling that proponent should give as a part of his preliminary case his own testimony with respect to the execution of the will. It is not strange that the court, having been informed that it was claimed that the name of the testatrix had been signed to the will by another, who was the proponent and present in court as a witness, should have desired to hear this testimony. We may concede that ordinarily a prima facie case for probate is made out by the testimony of the subscribing witnesses and the production of the will, and that in such case it would be error for the court, because further evidence is not produced, to refuse probate. And in the case at bar, leaving out of consideration the possible effect at that stage of the proceedings of the fact that the person who signed the name of the testatrix to the will was the sole beneficiary under it, we may for the sake of the argument concede also that at the time of the challenged ruling this proponent had already made out a prima facie case which in the absence of further evidence entitled the will to probate. The ruling did 'not require any additional evidence that was unavailable or even difficult to procure, nor did it require the examination of any hostile witness or the introduction of any harmful evidence. On the other hand, it required only that the proponent himself relate the “things that occurred on the execution of the will.” To meet the requirement of the ruling it was not necessary that proponent open on any new feature of the case for he had already undertaken to prove those same things by the two subscribing witnesses. We need not inquire whether the further examination of proponent was so limited as to bring forth no more than the testimony required by the court. — 72 — There was no objection to any question propounded in the course of this further examination, and if testimony which was irrelevant at that time and not responsive to the court’s direction was permitted to be given without objection, it was not the result of the court’s challenged ruling, and cannot be the foundation of an assignment of error. The additional testimony which was then given as the result of the ruling was favorable to the proponent, and claimed by him to be true and corroborative of the other witnesses who had testified before. After hearing it the court in effect held that a prima facie case in support of the will had been made, and proceeded to hear the contest. There is nothing in the record to show that in hearing the contest the court did not apply the rule that the burden of proof was upon the contestants as to all the issues raised by the answer to the written grounds of opposition. Whether or not the court was right in requiring the proponent to give the additional testimony on the preliminary inquiry, it seems clear that the result was not prejudicial. We are not sure that the right of the contestants to appear and cross-examine witnesses at this preliminary inquiry was questioned by any timely objection, but however that may be, we think no substantial right of proponent was violated by permitting them to do so. Strictly speaking, contestants were not parties to that inquiry, but we think it was within the court’s discretion then to avail itself of their aid, and to permit, as cross-examination, questions to which no objections were made at the time. (In Re Cullberg’s Estate, 169 Cal. 365, 146 Pac. 888.) Section 6713, Wyo. C. S. 1920, at the time of trial, and until amendment by Chapter 28, S. L. 1921, provided among other things that after the hearing of a contest’ of a will ‘‘the judgment of the court shall be rendered upon a special finding, either admitting the will to probate or rejecting it.” The findings upon which the judgment was rendered in this case were in the following words: ‘ ‘ The court * * * does find that at the time the said alleged will purports to have been executed the said Ellen — 73 — Boyle Conroy did not have testamentary capacity; that the said alleged will, if executed by the said Ellen Boyle Con-roy at all, was procured by the undue influence and fraud of the said C. Sewall, the beneficiary named in said will; and that said alleged will is not the last will and testament of the decedent, Ellen Boyle Conroy. ’ ’ That the findings are defective and insufficient to comply with the quoted language of the statute is asserted for the first time in the reply brief filed by proponent. Under our civil code, upon the trial of questions of fact by the court, special findings are not required unless requested by one of the parties. (Sec. 5784, Wyo. C. S. 1920.) It is admitted that there was no such request in the case at bar, but it is argued that by virtue of Section 6713, supra, the right of proponent to have special findings of fact without a request therefor was as perfect as the similar right of a party in the ordinary case after a request as provided by Section 5784. To this we have no answer, but we think the suggested analogy may be carried further, and that, as the reason for special findings is the same whether they be required outright or only after a request, the consequences following a failure to make perfect and sufficient findings should be no more serious in the one case than in the other. (Garner v. State, 28 Kans. 790.) Therefore, our decisions discussing the effect of a failure to make sufficient findings of fact, after a request therefor pursuant to Section 5784, are in point here. If it be conceded that the findings in this case were insufficient, the defect did not go so far as to render the judgment void, but was merely an irregularity or error which, if prejudicial, would be a ground for reversal of the judgment. (School Dist. v. Western Tube Co., 13 Wyo, 304, 328, 80 Pac. 155.) And to be available as a ground for reversal the claimed imperfection in the findings should have been called to the attention of the trial court in order that it might have had an opportunity to make any necessary corrections. (Hilliard v. Douglas Oil Fields, 20 Wyo. 201, 122 Pac. 626.) In any event, under authority of the case last cited, as the proponent has brought to this court a bill — 74 — of exceptions containing all the evidence, and we are called upon to consider an assignment of error that the judgment is not sustained by sufficient evidence and is contrary to law, the review here must be upon the whole record, which takes the place of the more particular findings which proponent now claims should have been made by the trial court. Considering the assignment of error to which we have just referred, we shall now inquire whether the evidence upon the issue of undue influence was sufficient to support the judgment. Doing this, we assume that the proffered instrument was executed by the decedent, and that she had testamentary capacity, though the evidence on this latter issue, as it has important probative value upon the issue of undue influence, must not be disregarded. We have already mentioned the facts that proponent was sole beneficiary under the proffered will; that he was active in its execution, and that de'cedent was unable to write. She could read common printed or typewritten matter but not handwriting. The will was prepared by proponent, who testified that in October, 1919, the decedent handed him a written memorandum, assumed to express her testamentary wishes, which she asked him to copy. This memorandum, the proponent says, was written so illegibly that of it he was able to read a few words only, and consequently it was of no use in the preparation of the will. The identity of the writer of the memorandum is not disclosed. Proponent testified further that on discovering that he could not read the memorandum, he suggested to decedent that she tell him what she wished written; that she did so, and he then made a draft of a will expressing her wishes; that he took this, with the undeciphered memorandum, to a fellow employee who made a typewritten copy of the writing proponent had prepared; that that copy is the instrument in question which, directly after its execution on December 23, was delivered by Mrs. Conroy to proponent, who kept it until after her death. The fellow employee who typed the will testified that he saw no paper other than the one he copied, and the “memorandum,” frequently asked for at — 75 — the trial, was not produced, and its absence was not satisfactorily explained. In the circumstances the evidence in regard to this missing paper was so suspiciously unsatisfactory that we think it did not even tend to show that decedent had the benefit of disinterested advice with reference to the making of the will, and the evidence as a whole amply justified the opposite conclusion. Proponent and decedent had been acquainted for about two years before the making of the will. During most of that time they lived in adjacent houses, both belonging to her, he being her tenant. Proponent testified that he saw decedent practically every day; assisted her about her home; read her mail; wrote her letters; cared for her in sickness, and did for her the things he would have done for his mother. He says that she had confidence in him, but trusted very few others, fearing they would steal everything she had. It appears from his testimony that she exhibited to him rather unusual forbearance in collecting her rent, and was so desirous of his uninterrupted companionship and assistance that she protested against his absence during a vacation trip which he had planned. In short, if we accept proponent’s testimony upon the question of the relation between these parties, there would seem no doubt that it was one of trust and confidence, she depending on him for advice and assistance in the management of her affairs. They were not connected by any tie of blood or marriage. At the time of the execution of the will, Mrs. Conroy was about seventy years of age. She was suspicious of others, was much alone, and seldom left her own yard. Her family physician, who had known her for 25 years, testified that he had observed her decline as a case of'progressive senility and that she had long been mentally disturbed. He and many other witnesses testified that she had been the victim of many delusions and hallucinations which we think it could serve no good purpose to describe. Some of them were such as did not necessarily impair her ability to judge rationally with reference to her testamentary acts. Others, — 76 — which had a tendency to destroy her regard for her next of kin and for a high dignitary of the church, beneficiary under the former will, were, to say the least, strong evidence of testamentary incapacity. "While several witnesses, including some called by contestants, expressed the opinion that decedent was rational as far as concerned the management of her property, the evidence with reference to a few specific business transactions in which she was interested does not tend to show that she was capable of exercising a very sound judgment in such matters. It is claimed that the will was signed between 8 and 9 o ’clock on the night of December 23. By the evening of the following day, when she was examined by her physician, she was almost moribund, in an advanced state of lobar pneumonia, and on the evening of December 25 she died. There was expert evidence which we think tended to show that it was probable that her usual faculties were further impaired on December 23 by the effects of this oncoming fatal disease. We have no hesitancy in saying that her testamentary capacity was at least doubtful. It is not necessary to cite authorities to sustain the proposition that undue influence, seldom susceptible of direct proof, may be established by proof of facts from which it may be fairly and reasonably inferred. In this case the attention naturally is first attracted by the fact that the sole beneficiary prepared the will. By the civil law, if a person wrote a will in his own favor, the instrument was void. This rule was not adopted in its full extent by the law of England, and in 1838, in Barry v. Butlin, 1 Curteis 637, 2 Moore P. C. 482, to explain some expressions thought equivocal in the earlier cases upon the subject, the doctrine of the courts of that country was discussed at some length, and the rule stated thus: “If a party writes or prepares a will under which he takes a benefit, that is a circumstance which ought generally to excite the suspicion of .the court, and call upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favor of which it ought not to pronounce — 77 — unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.” The same principle had been stated in almost the same language in the earlier decision of Baker v. Batt, 2 Moore P. C. 317. The effect of this suspicious circumstance in the trial of an issue of undue influence has been discussed in this country in a multitude of cases which are cited in notes to Snodgrass v. Smith, 15 Ann. Cas. 551 and Kirby v. Sellards, 28 L. R. A. (N. S.) 270. Barry v. Butlin is universally recognized as the leading case. It is cited in almost every later decision, and, so far as we can find, has never been criticized or questioned. In applying the rule, cases seeking and probably attaining the same result, afford examples of conflict in language arising largely from a different use of the terms “presumption” and “burden of proof.” In our discussion of the case at bar we can avoid the use of those terms as it was avoided in the statement of the rule quoted from Barry v. Butlin. The preparation of a will by a beneficiary, a suspicious circumstance only, insufficient in itself to render the will invalid, never stands entirely alone. There- are always other circumstances, if nothing more than the provisions of the will itself, and usually there are many others, not the same in any two cases, which must all be weighed in the end by the trier of the fact who must then say whether it satisfactorily appears that the will does express the intentions of the deceased. The trial of this issue, as was said in Miller’s Estate, 31 Utah. 415, 88 Pac. 338, quoting from Mooney v. Olsen, 22 Kans. 59, opens a broad field of inquiry. The suspicion excited by the fact that the beneficiary drew the will gains strength when it appears that he is a stranger to the blood of the testatrix (Lyons v. Campbell, 88 Ala. 462; Richmond’s Appeal, 59 Conn. 226, 22 Atl. 82) ; that by the will he takes a large or unreasonable proportion of the estate (Drake’s Appeal, 45 Conn. 9; Coffin v. Coffin, 23 N. Y. 9) ; — 78 — that he was the trusted or confidential agent or advisor of the deceased (Lyons v. Campbell, supra; Weston v. Teufel, 213 Ill. 291; Barkman v. Richards, 63 N. J. Eq. 211) ; that he was present and active at the execution of the will, and took the instrument into his possession (Howell v. Taylor, 50 N. J. Eq. 428; In Re Will of Everett, 153 N. C. 83; Haman v. Preston, 186 Ia. 1292, 173 N. W. 894); that the testatrix was of advanced age, impaired faculties and feeble of mind and body (In Re Elster’s Estate, 78 N. Y. Supp. 871; Boyd v. Boyd, 66 Pa. 283) ; that she was illiterate and forced to sign-by mark (In Re Elster’s Will, and In Re Will of Everett, supra); that she had no independent and disinterested advice with reference to making the will (In Re Nutt’s Estate (Calif.) 185 Pac. 393; Smith’s Will, 95 N. Y. 516); that only a short time intervened between the signing of the will and death (In Re Elster’s Will, supra; Irish v. Smith, 8 Serg. & R. 573, 11 Am. Dec. 648.) We have intended to state sufficient of the evidence to show that all these facts or conditions appeared in the case at bar. So startling an array of suspicious circumstances is not found in any case we have seen in the books. There was other evidence tending to show that the proponent by threats and offers of bribes had attempted to induce witnesses to give testimony in his favor. The proponent and the two subscribing witnesses, who are husband and wife, were in intimate association several times during the short interval between the execution of the will and Mrs. Con-roy’s death, and we infer that their relations were very friendly. Evidence on this point stands out with some prominence because these witnesses testified that their relations with proponent-were of a business nature only. We think, on the issue of undue influence, a strong prima facie case was made out in opposition to the will. The proponent and the two subscribing witnesses testified that the decedent, at the time of the execution of the will, was in her usual health of body and mind, and that she was not then prompted by any suggestion. One of the subscribing witnesses testified that Mrs. Conroy had previously — 79 — said that she would leave her property to proponent because he had been good to her. These, as we view the case, were the main items of proof on behalf of proponent tending to show that the will expressed the true intentions of the deceased. It was for the judge, as trier of the facts, to decide as to the credibility of the witnesses, and though this testimony was not directly contradicted by any other witnesses, he was not bound to believe it. (38 Cyc. 1518; In Re McDermott’s Estate, 148 Calif. 43, 82 Pac. 842.) If he did believe it, and accepted it as showing that the instrument was executed with knowledge of and assent to its contents, we think he would still have been justified in finding against the will, however satisfactory such a showing might have been in favor of the will in a case where there was a less weighty accumulation of suspicious circumstances. (Yardley v. Cuthbertson, 108 Pa. St. 395, 56 Am. Rep. 218; McQueen v. Wilson, 131 Ala. 606, 31 So. 94.) An oral discussion of the evidence by the trial judge, when announcing his decision, has been reduced to writing and now appears in the bill of exceptions. It is clear that this is no part of the record, and has no-proper place in the bill, yet we were asked to deduce from it that the trial court misconceived the evidence. To have resorted to it for such purpose would, in our opinion, have been improper, and in considering whether the judgment is supported by sufficient evidence we have felt bound to disregard the criticisms of this oral summing up by the trial court, and have looked only to the evidence in the record. (Phillips v. Coburn, 28 Mont. 45, 72 Pac. 291; Luman v. Mining Co., 140 Calif. 700, 74 Pac. 307; Goldner v. Spencer, 163 Calif. 317, 125 Pac. 347; Guss v. Nelson, 14 Okla. 296, 78 Pac. 170.) We are of opinion that under the evidence the District Court was right in denying probate of the will, and as We find no prejudicial error in the record the judgment is affirmed. Blume, J., concurs. Potter, Ch. J., being ill, did not participate in the final decision.