Anderson's Estate, In re

• Decision Date: 21 April 1953
• Docket Number: No. 2584,2584
• Citation: 71 Wyo. 238,255 P.2d 983
• Parties: In re ANDERSON'S ESTATE. ANDERSON et al. v. ANDERSON.
• Court: Wyoming Supreme Court

Page 983

255 P.2d 983

71 Wyo. 238

In re ANDERSON'S ESTATE.

ANDERSON et al. v. ANDERSON.

No. 2584.

Supreme Court of Wyoming.

April 21, 1953.

Paul B. Lorenz, Cheyenne, for appellants.

Henderson & Thomson, Cheyenne, for respondent.

RINER, Justice.

The District Court of Laramie County entered an order admitting to probate an instrument purporting to be the last will and testament of J. Albin Anderson, deceased. The Notice of Appeal filed herein also covered the order of said court made the same day dismissing objections filed to the probate of the instrument aforesaid. These objections were filed by Arvid E. Anderson, Sylvia E. Crossan and Edwin P. Anderson hereinafter usually referred to as the 'contestants.' They are brothers and sister of both Charles R. Anderson, the proponent of the instrument aforesaid for probate, and J. Albin Anderson, the deceased.

On December 29, 1950, Charles R. Anderson filed in said court a paper designated 'Petition for Probate of Will'; therein it was stated, among other things, that J. Albin Anderson died on or about the 25th of December, 1950, at Kimball, Nebraska; that at the time of his death he was a resident of Laramie County and left real property valued at probably $3,000 consisting of farm and town property and also personal property including cash, securities, merchandise and personal effects whose probable value is $3,044.39, the entire estate totalling in probable value $6,044.39; that said deceased left a will dated December 14, 1950, which petitioner believes and alleges to be the last will and testament of said deceased; that said will was presented to the court with said petition and reads:

'Last Will and Testament

of

J. Albin Anderson

'Know all men by these presents that I, J. Albin Anderson, a resident of Laramie County, Wyoming, of sound and disposing mind and body mindfull of the uncertainties of life, do hereby make, sign, seal, and publish and declare this to be my Last Will and Testament, hereby revoking any and all wills and codicils by me at any time heretofore made.

'I.

'I hereby direct that the expenses of my last illness and funeral be first paid out of the proceeds of my property.

'II.

'I direct that my executor hereinafter named shall pay all of my just debts.

'III.

'I hereby devise and bequeath all of my property, real, personal and mixed, to my brothers and sister as follows:

Elliott M. Anderson 5%

Edwin P. Anderson 5%

Arvid E. Anderson 5%

Charles R. Anderson 75%

Otto C. Anderson 5%

Mrs. Bert Crossan 5%

'IV.

'Any of my property remaining that may not have been disposed of by the provisions of the preceding paragraph I devise and bequeath to

'V.

'I nominate and appoint Charles R. Anderson as executor of this My Last Will and Testament, to serve without bond.

'In witness whereof I have set my hand and seal this 14th Day of December, 1950.

H.M.

A.H.S.

J. Albin Anderson

Testator

'The foregoing instrument consisting of two pages inclusive of this one at the date hereof was by the said J. Albin Anderson signed, sealed, published and declared to be his Last Will and Testament in the presence of us, who have at his request and in his presence, and in the presence of each other, subscribed our names as witnesses hereto and placed our initials on the foregoing page.

'Henri Musolf

Residing at Kimball, Nebraska

'A. H. Shamberg, M.D.

Residing at Kimball, Nebraska.'

This the legatees and devisees mentioned in said will are brothers and sister of said deceased; that the heirs of deceased are the five brothers and one sister of said deceased named in said will, most of whom reside in Laramie County, Wyoming, except Elliott M. Anderson who resides in Fremont County, Wyoming, and Otto C. Anderson who resides in Windsor, Colorado; that at the time the will was executed the testator was 67 years of age, of sound mind and not acting under restraint, duress, menace, fraud, undue influence or fraudulent misrepresentation; that said will is in writing signed by the said testator attested by said subscribing witnesses, Henri Musolf of Kimball, Nebraska and A. H. Shamberg, M.D., also of Kimball, Nebraska, both of whom were competent to act as such. It was prayed that the will be admitted to probate and letters testamentary be issued to petitioner Charles R. Anderson as the named executor of this will and that a time be fixed for proving said will and that all necessary orders be made. The petition was signed and was verified on belief by said Charles R. Anderson, the proponent thereof.

On August 23, 1951, the contestants aforesaid filed a paper designated 'Opposition to Probate of the Will of J. Albin Anderson.' The first two paragraphs thereof stated that the decedent, J. Albin Anderson, left no surviving wife, or surviving children, or surviving descendants of children, or father or mother, and listed the heirs-at-law to be the persons named in the will as legatees and devisees as set forth above. The third and fourth paragraphs of this 'Opposition' read as follows: '3. That the alleged testator, J. Albin Anderson, deceased, was on the 14th day of December, 1950, the date of the execution of the purported will herein referred to, of unsound mind and mentally incompetent to make and execute a valid will and testament. 4. That said alleged will was the result of undue influence and duress.' It was prayed therein that the court adjudge that J. Albin Anderson was on the day of the execution of the will of unsound mind and mentally incompetent to make a valid will and that at that time he was acting under 'undue influence and duress' and that said purported will was not the will of said J. Albin Anderson. This 'Opposition' was verified by Edwin P. Anderson as he 'verily believes.' Thereafter Charles R. Anderson filed an 'Answer to Opposition to Probate' which admitted the allegations in the first two paragraphs of said 'Opposition' but denied the allegations of paragraphs 3 and 4 thereof and also all allegations of said 'Opposition' not therein specifically admitted or denied. The prayer of this Answer was that the 'Opposition's' prayer be denied and that the will be admitted to probate.

Before proceeding further with this opinion it should be noted that the contestants' and appellants' brief in this court contains the following statement: 'On the Proposition the Testator was Mentally Incompetent at the Time of the Execution of the Will. While this was assigned as error, after a careful review of the record, we find we cannot conscientiously challenge the testamentary capacity of the testator as such, and any question in this vein we have urged under the proposition of undue influence as bearing on the testator's susceptibility of the same.' Additionally, we may say that when this case was argued we understood counsel for contestants to orally make substantially the same statement as appears above excerpted from his brief.

The only question therefore with which we are concerned at this time is whether the testator was acting under undue influence at the time he executed the instrument quoted above as the one presented to the court and asserted to be the last will and testament of J. Albin Anderson, deceased.

The cause was tried to the court with the result that two final orders were entered June 10, 1952; the first of these was an order admitting the will to probate and appointing Charles R. Anderson as executor thereof; summarizing its recitals and findings the order is to this effect: That the court having heard all the evidence and arguments of counsel it finds that said will was duly executed; that the testator at the time of its execution was of sound and disposing mind and not acting under...