Farleigh v. Kelley

ME. JUSTICE HOLLOWAY, after stating the case, delivered the opinion of the court. 1. Had the contestants the right to open and close the case ? It is considered by the petitioner that so long as she was required to make some proof in the first instance, even though it be formal in character, and only such as she would be required to make in case no contest had been inaugurated, she was- entitled to open and close the case, and in deciding against this contention the district court committed prejudicial error. Whatever may be the rule in other jurisdictions, where peculiar statutory provisions have entered into the determination of the question, there can scarcely be any serious controversy as to the proper practice in this state. If the issues to be tried were raised upon the allegations of the'petition for probate, and the objections made thereto in the written opposition of contestants, it would then seem reasonable that the burden would be cast upon the petitioner to maintain by a fair preponderance of the evidence the allegations of her petition, and this burden would carry with it the right to open and close, but such is not the case. The proceedings for the contest of a will (before probate) are provided for in Sections 2340-2346 of the Code of Civil Procedure. Paraphrased, Section 2340 would’ read: The contestants must file written grounds of opposition to the will offered, and serve a copy on the petitioner, who may demur thereto upon any grounds for which a demurrer to a complaint in a civil action may be interposed. If the demurrer be sustained, the contestants may amend their written — 428 — opposition. If petitioner’s demurrer be overruled, sbe may file her answer traversing or otherwise obviating or avoiding the allegations of the written opposition, and the issues of fact raised by these, two pleadings — '(1) the written grounds of opposition, and (2) the petitioner’s answer thereto — and none others, must be tried, by a jury if demanded; and upon such trial the contestants are the plaintiffs, and the petitioner is the defendant. The issues to be tried, then, are raised by the allegations of the plaintiffs’ (contestants’) written grounds of opposition or complaint, and the defendant’s (petitioner’s) answer thereto. Thus the actual trial of the contest is not initiated until the proffered will is before the court (not the jury) upon the formal proof necessary to the probate of an uncontested will. The very fact that the petitioner’s answer need be nothing more than a general denial of the allegations contained in the written grounds of opposition emphasizes the evident intention of the legislature that the contestants shall have the laboring oar throughout the trial. No other construction can be given to the language of Section 2340, above, and the plain meaning of the terms employed, be preserved. The contestants are the plaintiffs. They have the burden-of proof imposed upon them, and with that they have the righto open and close. (Section 1080, Code of Civil Procedure, as amended by Act Fifth Legislative Assembly, approved March 1, 1897 [Laws of 1879, p. 241].) Section 1312 of the California Code of Civil Procedure is in terms identical with Section 2340, above, and received a construction in In re Doyle's Estate, 73 Cal. 564, 15 Pac. 125, in which Temple, L, concurring, said: “The same procedure is made applicable to a contest after the will has been admitted to probate as before. In both, the contestant has the laboring oar, as though he is attacking something which he must overcome by affirmative proof. Under such circumstances, I think the theory of the statute must be that the contest begins after the petitioner has made his prima facie case. In such case the burden would naturally — 429 — be on the contestant, and all the provisions consistent and harmonious. ” 2. Contestants were permitted to make proof of the proceedings had in the administration of Allport’s estate, of the attempt to probate the former will, of the transfer by Caroline V. Kelley to her husband, G-eorge H. Kelley, of a large portion of the property belonging to the estate, and of the proceedings instituted in the district court to recover such property back into the estate. Of this complaint is now made. We are of the opinion that the- evidence was properly admitted. TJnder Section 2340, above, the issues formed upon the contest of a will may involve the competency of the testator, his freedom from duress, etc., the due execution of the will, or any other question substantially affecting the validity of the will. In this instance the pleadings put in issue the due execution and attestation of the will offered, and the question of the existence of a conspiracy formed by the petitioner and unknown parties to defraud the contestants out of their interests in the estate by successive attempts to have the property transferred to the petitioner, and, when all efforts had failed, by forging, or procuring to be forged, the alleged will offered for probate. The petitioner interposed a motion to strike out all allegations with reference to the conspiracy charged, but no error is predicated upon the court’s denial of the motion, and no question is made as to the sufficiency of the pleading. The evidence offered tended to prove the allegations of the written opposition; tended to .show the improbability that the will in controversy is genuine, and to disclose the motives of the petitioner in offering it. It cannot be said that the only possible issues which can arise upon the contest of a will are such as involve the competency of the decedent to make a will, or his freedom from duress, menace, fraud, or undue influence, or the due execution or attestation of the will itself, for, if this be’ so, Subdivision 4 of Section 2340, above, is meaningless. Any question, other than these just enumerated, which affects — 430 — tbe validity of tbe will, may properly be tbe subject of controversy. 3. lipón tbe trial tbe contestants were permitted to introduce evidence tending to prove that the. subscribing witnesses to tbe will offered bad made statements contradictory of the facts contained in the attestation clause attached to tbe will, and which also tended to impeach each of such subscribing witnesses by showing that bis reputation for honesty and integrity is bad. It developed upon tbe trial that both subscribing witnesses were then absent from tbe state, and proof of the genuineness of their signatures to the purported will was made before the testimony above complained of was offered. Section 1123 of the Civil Code provides the manner of executing and attesting all wills, other than holographic and nun-cupative wills, and those provisions are mandatory. They are: “(1) It [every will] must be subscribed at the end thereof by the testator himself, or some person in his presence and by his direction must subscribe his name thereto. (2) The subscription must be made in the presence of the attesting witnesses, or be acknowledged by the testator to them, to have been made by him or by his authority. (3) The testator must, at the time of subscribing or acknowledging the same, declare to the attesting witnesses that the instrument is his will; and (4) there must be two attesting witnesses, each of whom must sign his name as a witness, at the end of the will, at the testator’s request, and in his presence.” When a will is contested; the subscribing witnesses, if present in the county and of sound mind, must be produced and examined. If absent, the court may receive other evidence, if any can be had, of the facts mentioned in Section 1723, above, but, as a rule, such facts, or many of them, can be proved only by the subscribing witnesses; and, for the purpose of making such proof, Section 2343 of the Code of Civil Procedure provides for the identification of the handwriting of the absent subscribing witnesses to the will, and, that done, those parties, though dead or out of the jurisdiction of the court, become, to all intents and purposes, active, living — 431 — witnesses in court, giving testimony, as if under tbe sanctity of an oath, that at the time the instrument bears date the testator either signed it in their presence, or acknowledged to them that he had signed it or caused it to be signed, and that he then declared such instrument to be his will, and requested them to sign it as such witnesses, and that they did so in the testator’s presence; and thus evidence of the due execution of the will in conformity to the requirements of Section 1723, above, is made. If this was not so, it would be practically impossible to prove the due execution of any contested will. The proof of the genuineness of the signature of the dead or absent subscribing witnesses to the attestation clause, when one is appended, is evidence in the case that all the facts recited in it, and which are prerequisites to the due execution of the will, actually took place as therein set forth, (2 Rice on Ev. 1207; Allaire v. Allaire, 37 N. J. Law, at page 325; Scribner v. Crane, 2 Paige, 147, 21 Am. Dec. 81), and supplies the proof which in many, if not in most, instances it would otherwise be impossible to obtain. This view is further emphasized by the language of Section 2343, above, which requires the subscribing witnesses, who are in the county where the cause is tried, and of sound mind, to be produced and examined; and, if such witnesses were present and sworn and examined by the petitioner, it would hardly be contended that they would not then be subject to the same rules of evidence, as mentioned in Sections 3379 and 3380 of the Code of Civil Procedure, as are applicable to other witnesses. The provisions defining the term “witnesses,” and the circumstances under which contradictory statements may be shown, are modified by Section 2343, above, to the extent that the exigency of the case permits the statement of the subscribing witnesses contained in the attestation clause, though not made under oath, to be received as primary evidence, or, in other words, permits the dead or absent witnesses to speak through the instrumentality of the statute itself, that its requirements have been fully met. — 432 — Tbe petitioner "may not have tbe benefit of tbe testimony of two witnesses to tbe facts that at tbe time of tbe execution of tbe will tbe testator subscribed tbe same in tbeir presence, and declared it to be bis last will and testament, without having such witnesses subject to be discredited dr impeached. If this was not so, and tbe appellant’s contention prevailed, no contest could be successfully waged against a will offered under such circumstances, for it would be practically impossible to disprove by other evidence tbe facts, or at least some of tbe facts, set forth in tbe attestation clause, or necessary to tbe due execution of tbe will; and, if not disproved, then the facts would stand as actually proved by tbe testimony of two witnesses not only entitled to full credit, but wbo cannot be impeached. (Section 3120, Code of Civil Procedure.) “Tbe subscribing witnesses are subject to the same rules as to contradiction and impeachment as other witnesses.” (Abbott’s Trial Ev. (2d Eld.) 142.) 4. Complaint is also made that tbe court erred in admitting evidence of statements made by George H. Kelley to Henry ,G. Kickerts, then clerk of tbe district court. Before making this proof, tbe contestants bad called tbe petitioner, Caroline V. Kelley, wbo testified that in all that was done by her husband, George H. Kelley, with reference to this estate, he was acting for her, and as her agent. Evidence bad also been introduced of the transfer of a large portion of tbe property belonging to tbe estate by tbe petitioner to her husband, and of tbe efforts required to secure its reconveyance to tbe estate. As further evidence of tbe collusion and conspiracy charged, tbe contestants called Kickerts, wbo testified that, while tbe estate was in course of administration, be bad received a communication from tbe husband of tbe contestant Farleigh, making inquiry with reference to tbe property left by Allport; that George H. Kelley came to him, and asked that be (Kelley) be permitted to answer tbe letter, and, upon a refusal of that request, asked Kick-erts to say to Earleigb that tbe property consisted principally of real estate in tbe town of Basin, and was not very 'valuable. Tbe objection interposed to this' testimony was that it was in — 433 — competent, immaterial and irrelevant. Upon tbe issue of a conspiracy to deprive these contestants of participating in tbe Allport estate, tbis evidence, as well as tbe letter written by tbe petitioner to Farleigh, telling him that Allport’s estate bad been settled, and tbe property left to her, was relevant and properly admitted — tbe declarations of George H. Kelley, as of a co-conspirator, or as tbe petitioner’s agent; and those contained in tbe letter of the petitioner, as circumstances tending to prove such conspiracy. 5. Upon tbe trial tbe petitioner sought to prove by the witness Nichols that in May, 1899, tbe subscribing witness Geiger-ich bad come to his office and banded to him tbe will in controversy, at tbe same time explaining tbe circumstances under which be bad held possession of tbe document from tbe time of its alleged execution. Tbe substance of Geigericb’s statement to Nichols was that in October, 1895, Allport bad executed the' will, and gone with Geigerich to tbe office of tbe Butte Hardware Company to leave tbe instrument with one Kirby; that Kirby was not in, and Allport then banded it to Geigerich and asked him to deliver it to Kirby; that be (Geigerich) put tbe will away, and forgot about it until May, 1899, when be went to get a paper from a box in which be kept valuable papers, and discovered tbe will and brought it to Nichols. Tbe offer to prove these declarations by tbe witness Nichols was excluded. As we have heretofore seen, Geigerich was, to all intents and purposes, a witness in court, testifying under oath that tbe facts recited in tbe attestation clause actually occurred as therein set forth, and tbe reason for tbe rule which now excludes these declarations made by him to Nichols is that bis declarations not made under oath cannot strengthen tbe testimony which be has given under oath. Tbe issue involved was tbe genuineness of the alleged will, and to permit declarations of tbe absent subscribing witness in support of tbe validity of tbe will to be received in evidence for any purpose whatever would be to reverse tbe rule of evidence which has long ago become well settled — that extrajudicial declarations, not under oath, corrobo — 434 — rating testimony given in court, cannot be received. Whatever exceptions there may be to this rule have no application to the facts of this ease. The declarations of Geigerich were hearsay, and notably so are his declarations of declarations made to him by Allport. But it is contended • that they should have been received as a part of the res gestae. They were made nearly four years after the alleged will purports- to have been executed, and cannot, therefore, be said to characterize or explain the principal fact, viz., the execution of the will. As to that, they are narrations of a past transaction, and, as such, inadmissible. But it is contended that they characterize and tend to explain the possession of the will, and for that purpose, at least, were admissible. The evidence was offered en masse — the offer was an entirety; and along with the declarations of Geigerich, explaining his possession, were the declarations made to him by Allport, and these, as offered, were incompetent under any phase of the case. So long, then, as the offer included evidence incompetent, coupled with that which may have been competent, the court committed no error in excluding the offer in its entirety. It was not the duty of the court to separate the competent from the incompetent matter, and admit the one and exclude the other. It properly passed upon the offer as made, and was not required to do for counsel that which he should have done for himself. (Yoder v. Reynolds, 28 Mont. 183, 12 Pac. 417; Clark v. Ryan, 95 Ala. 406, 11 South. 22; First National Bank v. North, 2 S. D. 480, 51 N. W. 96; Thompson on Trials, 678.) 6. Complaint is made that the court excluded the testimony of James T. Finlen. By this witness it was sought to show that, some time prior to the date of the trial, Finlen met Geigerich, who said he was going to leave Montana; that one Heinze had given him money with which to leave. This testimony was excluded, and the petitioner then offered to prove that the contestants had contracted, with Heinze to sell to him whatever in — 435 — terests they acquired in the Minnie Healy mine from Allport’s estate. This offered testimony was also excluded. We cannot conceive of any theory of the case upon which this testimony would be competent or material. It is idle to urge now that at least it tended to account for the absence of the subscribing witness Geigerich, as required by Section 2348 above. It was offered at the last stage of the trial, long after proof sufficient to satisfy the court as to the absence of the subscribing witnesses had been made, and their handwriting identified. The evidence was incompetent and immaterial, and was properly excluded. We have examined the other errors assigned, and find’ no merit in them. The order overruling petitioner’s motion for a new trial is affirmed. Affirmed. Mu. Chiee Justice Brantly : I concur.