Auld v. Cathro

• Citation: 128 N.W. 1025,20 N.D. 461
• Parties: AULD et al. v. CATHRO et al.
• Decision Date: 14 December 1910
• Court: United States State Supreme Court of North Dakota

20 N.D. 461

128 N.W. 1025

AULD et al.

v.CATHRO et al.

Supreme Court of North Dakota.

Sept. 24, 1910.

Rehearing Denied Dec. 14, 1910.

Syllabus by the Court.

There is no evidence to establish the fact that the will in controversy was executed as a result of undue influence practiced upon the testatrix; hence the ruling of the trial court was correct in refusing to submit such issue to the jury.

The privilege of secrecy to all information acquired by a physician from a patient in attending the patient professionally in a proceeding contesting the probate of an alleged will of decedent, the testimony and opinion of decedent's attending physician as to her mental capacity, based entirely on information derived from her statements or the physician's observation while treating her professionally and for the purpose of such treatment, were properly excluded.

The failure of the trial court to have the testimony of a witness read at the request of the jury held, under the circumstances of the case at bar, not error.

The charge of the court relating to the disposition a testator or testatrix can make of his or her property under the laws of this state, correctly states the law.

The rule is that a nonexpert will be allowed to express an opinion upon an issue of sanity only after he has testified to acts, conversations, or conduct, which to some extent indicate sanity.

In this class of cases the question of the competency of the witness to testify is one for the court, and is also a question lying within the sphere of judicial discretion; and the familiar rule that such discretion will not be reversed except in cases of abuse applies in the case of nonexperts as well as experts who are called to express opinions upon an issue of insanity.

Appeal from District Court, Bottineau County; Chas. F. Templeton, Judge.

Petition by F. W. Cathro and others for the probate of the will of Mary Auld, to which Robert Auld and another filed objections. The will was admitted to probate by the district court upon appeal from the county court, and, from an order denying a new trial, contestants appeal. Affirmed.

Ellsworth, J., dissenting.Noble, Blood & Adamson (Ball, Watson, Young & Lawrence, of counsel), for appellants. Weeks & Murphy and Geo. A. Bangs, for respondents.

CARMODY, J.

This litigation arose in the county court of Bottineau county, and involves the validity of the last will of one Mary Auld, deceased. Plaintiffs and appellants, Robert Auld and Bertha Johanna McGaffney, were respectively the husband and sister of said deceased. Defendant and respondent, Cathro, is the executor named in said last will. Defendants Laura M. and Gertrude G. Dana are two of the legatees named in said will. Respondent Cathro filed in such county court a petition praying for the probate of such will. Appellants filed written objections to admitting said will to probate, in which they allege, in substance, that the writing purporting to be the said will was pretended to be made and executed on the 18th day of March, 1905; that on the said 18th day of March, 1905, and long prior thereto, said Mary Auld, by reason of unsoundness of mind, insanity, mental weakness, and imbecility, has been wholly incapable of making and executing her last will and testament or any codicil to any will or testament, or any writing in the nature of a last will and testament; that said paper or writing purporting to be the last will and testament of the said Mary Auld were obtained by fraud and undue influence exerted over and upon her by said Cathro, H. C. Dana, and others, as follows: That said Cathro, Dana and others, by reason of the unsoundness of mind, mental weakness, and imbecility of the said Mary Auld, exercised over and upon the said Mary Auld undue influence in varied and divers ways, and represented to the said Mary Auld that it would be necessary for her to place her property in the hands of a third person, or some person, other than any of her relatives or heirs, to prevent the said Robert Auld from obtaining said property for himself, and the said writing is not the last will and testament of the said Mary Auld, deceased; that the said Robert Auld and the said Mary Auld were married in the county of Cavalier and state of North Dakota in August, 1892, and the said Mary Auld from the time of said marriage always represented to Robert Auld, and he always supposed, that they were lawfully married; that she was the wife of the said Robert Auld at the time of her death; that the said Mary Auld represented to him at the time of her marriage that her name was Mary Hitterdahl, but contestants now believe that her name was Mary Olson, and that at the time of her marriage with said Robert Auld she had a husband living, named N. K. Olson, from whom she was not at the time of said marriage divorced; and that all of the real property named by the said Mary Auld in said purported last will and testament is property given to her by Robert Auld in consideration of love and affection, and for the reason and under the belief that the said Mary Auld was his wife.

In addition to these objections, Robert Auld filed another objection as follows: “That the said purported last will and testament of the said Mary Auld, deceased, was not signed, sealed, and declared by her to be her last will and testament and witnessed; that it was not executed by the said Mary Auld, deceased, as provided by the statutes of North Dakota.” Respondents, replying to said written objections, deny each and every allegation contained therein, except as admitted or qualified. Deny that said Mary Auld, on the 18th day of March or at any time, was unsound of mind, insane, mentally weak, or an imbecile, and allege that at all times prior to her death she was of sound mind and possessed of sufficient mental capacity to make and execute her last will and testament; deny that the will was obtained by fraud or undue influence, and allege that said will was duly and legally signed, executed, and witnessed; deny that any of the property named in said will was given to Mary Auld by said Robert Auld. The county court made findings of fact and conclusions of law sustaining the contentions of appellants, and found that the said Mary Auld at the time of her death had a sister, Bertha Johanna McGaffney, and a husband, Robert Auld, who are the plaintiffs in this action. An appeal from the order and decree denying the petition of F. W. Cathro, asking for admission to probate of said instrument was taken to the district court of Bottineau county, where the will was allowed by the jury. From an order denying their motion for a new trial, contestants appeal to this court.

In addition to the facts herein stated, the following are the facts necessary to a decision of this case: At the time of the marriage of testatrix with Robert Auld, she had a homestead of 160 acres of land in Rolette county, adjoining Bottineau county; also three horses, two cows, and a calf, and household goods. She afterwards traded her farm for city property in Bottineau. She and her husband, Robert Auld, did not get on very well together, and lived separately a considerable portion of their married life. At the time of her death, an action for divorce brought against testatrix by Robert Auld in which issue had been joined was pending. Appellant Robert Auld married within 10 days after her death. Testatrix was quite eccentric, and lived largely alone. H. C. Dana, father of the two girls, had done testatrix some favors which she appreciated. She had frequently advised with him during her life, and several times stated to him that she was going to will him her property, as she did not want her husband, Robert Auld, to have any of it, said her people had not treated her right, and she did not want them to have any of her property. Dana each time protested, saying he did not want anything to do with it. She finally told him that she would will the property to his two little girls. This was in January, 1905. Dana then said to her: “I don't suppose there is any use in making your will, you are not going to die.” He never talked with her again about the will until after the first will, hereinafter mentioned, was made. On the 4th day of February, 1905, testatrix made a will in which she devised all her property to respondents, Laura M. and Gertrude G. Dana. After making the will of date February 4, 1905, and about the first part of March, her sister, appellant, came to live with her. Testatrix then informed Dana that appellant Bertha wanted testatrix to leave her (Bertha) something. Testatrix said it would be all right for her to leave Bertha something, and Dana said “Sure.” On the 18th of March, 1905, she made another will in which she devised a house and lot in the city of Bottineau to appellant Bertha Johanna McGaffney, and the balance of her property equally to respondents, Laura M. and Gertrude G. Dana. The will also contained the following provision: “I have knowingly and intentionally omitted from this, my last will and testament, Robert Auld, and any and all relatives of mine not mentioned herein.” The property disposed of by the will consisted of two houses, and about 6 lots in the city of Bottineau, and about $1,000 in money; in all of the value of about $5,000. Both the Dana girls were born in one of these houses. Testatrix said she thought it would be nice for them to have the house they were born in. She died on the 29th day of March, 1905, and left surviving her, in addition to her husband, Robert Auld, and her sister Bertha Johanna McGaffney, her mother and a sister, Mrs. Bergen, and two brothers living at Hitterdahl, Minn. She had been separated from them for a number of years. Appellant Bertha Johanna McGaffney lived with testatrix, and took care of her for about 15 days before her death. Testatrix was suffering from tuberculosis, from which she finally died.

Appellants assign 23 errors, which are divided in the brief into five...