Altman's Estate, Matter of, 5685
Decision Date | 31 August 1982 |
Docket Number | No. 5685,5685 |
Parties | In the Matter of the ESTATE OF Verlie O. ALTMAN, Deceased. Elizabeth DAINTON, Richard Boogaart and Wanda B. Sorem, Appellants(Contestants), v. Minerva C. WATSON, Appellee (Proponent). |
Court | Wyoming Supreme Court |
Patrick L. Fagan of Fagan & Fagan, Casper, for appellants.
Alfred G. Kaufman, Jr., Lusk, for appellee.
Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.
This is an appeal from a judgment rendered on a jury verdict in favor of the appellee-proponent in a will contest action in which appellants-contestants sought to set aside decedent's will on the grounds that its execution did not conform to statutory requirements, thus resulting in insufficient proof of the will. Two issues are presented on appeal: (1) Was the verdict supported by substantial evidence; and (2) did error result from the comment made by counsel for appellee in his closing argument concerning that which appellee observed at the time the subscribing witnesses signed the will?
We affirm.
When an issue on appeal involves the sufficiency of the evidence, we must apply the following standard:
* * * "Distad v. Cubin, Wyo., 633 P.2d 167, 180 (1981).
A review of the record reflects the existence of substantial evidence favorable to appellee, the successful party, concerning the pertinent issue. The pertinent issue is whether or not the subscribing witnesses to the will, Marty Fernau and Gemila Stetson, each signed the will under the conditions prescribed by § 2-6-112, W.S.1977. Such section provides in pertinent part:
" * * * (A)ll wills to be valid shall be in writing, or typewritten, witnessed by two (2) competent witnesses and signed by the testator or by some person in his presence and by his express direction. * * * "
In this respect, both subscribing witnesses, Marty Fernau and Gemila Stetson, furnished sworn affidavit testimony in writing pursuant to § 2-6-205(a), W.S.1977. Section 2-6-205(a) provides in pertinent part:
The form was used for the testimony of both subscribing witnesses in this case. That subscribed and sworn to by Marty Fernau reads as follows:
Additionally, Gemila Stetson testified in part as follows:
Marty Fernau testified in part as follows after reading the above-quoted affidavit to the jury:
Appellee Minerva C. Watson testified in part:
The foregoing is substantial evidence sufficient to support the jury verdict.
Marty Fernau did also testify that he did not sign the will in the presence of the testator or Gemila Stetson but that it was brought downstairs to his store by appellee where he signed it. The jury obviously did not believe this testimony but opted to believe that testified to by appellee and Gemila Stetson in addition to that set forth in the affidavits of the subscribing witnesses. The determination of credibility of the witnesses is a jury or fact finder function. It is not the function of appellate review. Cimoli v. Greyhound Corporation, Wyo., 372 P.2d 170 (1962); Rossin v. Ward, Wyo., 363 P.2d 919 (1961); Millar v. Millar, Wyo., 369 P.2d 207 (1962). The conflicting evidence in this case was presented to the jury. It found the facts in favor of appellee. There was substantial evidence to support such finding.
In referring to appellee in his closing argument, appellee's counsel noted that she had disclaimed a bequest under the will and then he said:
At that point, appellant's counsel interrupted, and the following was said:
Appellants argue that the jury could assume from counsel's remarks that Mrs. Watson could qualify as the second subscribing witness to the will...
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