Bilby v. Stewart

Citation1915 OK 1075,153 P. 1173,55 Okla. 767
Decision Date21 December 1915
Docket NumberCase Number: 5702
PartiesBILBY et al. v. STEWART et al. *
CourtSupreme Court of Oklahoma
Syllabus

¶0 1. WILLS-- Right to Jury Trial--Advisory Findings--Probate Proceedings--On appeal to the district court from a judgment of the county court refusing to admit a will to probate, the district court may, in its discretion, submit the questions of undue influence and testamentary capacity to a jury, under section 6515, Rev. Laws 1910. The findings, of the jury, however, are not binding, but advisory only.

2. WILLS--Finding of Fact--Testamentary Capacity. Testamentary capacity, or the lack thereof, is a question of fact. There is no rule by which it may be determined, with precision, where capacity ends and incapacity begins, but this question should be determined from all the facts and circumstances of each particular case; and, where the evidence fairly and reasonably supports the finding of testamentary incapacity, the same will not be disturbed on appeal.

3. SAME--Test of Testamentary Capacity--Ordinarily the test of testamentary capacity is the testator's capacity to understand the effect and consequence of his act, at the time the will is executed.

4. SUFFICIENCY OF EVIDENCE. Evidence upon the question of testamentary capacity examined, and held to fully support the finding of incapacity.

Error from District Court, Hughes County; John Caruthers, Judge.

Action by Nicholas V. Bilby and others against Albert Stewart and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

Lewis C. Lawson, for plaintiff in error

Crump & Skinner, for defendants in error

DUDLEY, C.

¶1 On March 18, 1911, Waco Bruner, a full-blood Creek Indian, executed a purported will, bequeathing his allotted lands to plaintiff in error Nicholas V. Bilby, and designating the plaintiff in error H. B. Moffitt the sole executor thereof. On November 21, 1912, said alleged testator died in Hughes county, Okla., seised and possessed of said lands. He was a resident of said county at the time of his death. Bilby is the principal beneficiary under said purported will. He, however, was not related to the deceased. On November 23, 1912, Moffitt, the executor named in said purported will, presented the same to the county judge of said county, and filed a petition asking for the probate thereof. The defendants in error, claiming to be the sole and only heirs at law and next of kin of said deceased, filed a contest, protesting against the probate of said purported will, on the grounds, among others, that the same was procured through the undue influence of Bilby, the principal beneficiary therein, and that the alleged testator did not possess the capacity to make the same. Issues were joined and a hearing had, resulting in a finding against the contestants upon the questions of undue influence and testametary capacity, but denying the probate of said purported will, for the reason that the testator was a full- blood Creek Indian, and on account thereof was incapable of alienating his allotted lands by will. Both the proponents and contestants appealed from this judgment to the district court of said county, where the case was tried de novo, resulting in a judgment denying the probate of said will on the ground of testamentary incapacity. From this judgment the proponents have appealed.

¶2 In the trial of the case in the district court, the trial court, without objections, submitted to a jury the questions of undue influence and testamentary capacity. The jury found that said purported will was procured through the undue influence of Bilby, and that the alleged testator did not possess testamentary capacity to make the same. The trial court set aside the jury's finding of fact on the question of undue influence, but approved and adopted its finding on the question of testamentary capacity.

¶3 The proponents first insist that the trial court committed prejudicial error in submitting the two questions of fact to the jury. We think not. The right of trial by a jury, guaranteed under section 19, art. 2, of the Constitution (section 19, p. 15, Williams' Ann. Const.), except as modified by the Constitution itself, means the right as it existed in the Territory of Oklahoma at the time of the adoption of the Constitution. State ex rel. West, Atty. Gen., v. Cobb, County Judge, 24 Okla. 662, 104 P. 361, 24 L.R.A. (N. S.) 639; Baker v. Newton, 27 Okla. 436, 112 P. 1034; In re Byrd, 31 Okla. 549, 122 P. 516; Ex parte Dagley, 35 Okla. 180, 128 P. 699, 44 L.R.A. (N. S.) 389; Catron v. Deep Fork Drainage District No. 1, 35 Okla. 447, 130 P. 263; State Bar Commission ex rel. Williams v. Sullivan, 35 Okla. 745, 131 P. 703, L.R.A. 1915D, 1218.

¶4 Under the law in force in the Territory of Oklahoma at the time of the adoption of the Constitution, neither party in a proceeding of this kind was entitled, as a matter of right, to a trial by a jury, but the court might, in its discretion, submit certain questions of fact to a jury, the findings of which, however, were not binding, but advisory only. Section 1807, vol. 1, Wilson's Ann. St. 1903; Cartwright v. Holcomb et al., 21 Okla. 548, 97 P. 385; Engle v. Yorks, 7 S.D. 254, 64 N.W. 132; In re McClellan's Estate, 20 S.D. 498, 107 N.W. 681; Rich v. Bowker, 25 Kan. 7; Hudson v. Hughan et al., 56 Kan. 152, 42 P. 701; Gallon v. Haas, 67 Kan. 225, 72 P. 770; Rathjens v. Merrill, 38 Wash. 442, 80 P. 754; In re Benton's Estate, 131 Cal. 472, 63 P. 775; Estate of Dolbeer, 153 Cal. 652, 96 P. 266, 15 Ann. Cas. 207, note 211. The section above referred to is as follows:

"When the appeal is on questions of fact or on questions of both law and fact, the trial in the district court must be de novo, and shall be conducted in the same manner as if the case and proceedings had lawfully originated in that court; and such appellate court has the same power to decide the questions of fact which the probate court or judge had, and it may, in its discretion, as in suits in chancery, and with like effect, make an order for the trial by jury of any or all the material questions of fact arising upon the issues between the parties, and such an order must state distinctly and plainly the questions of fact to be tried."

¶5 This section was carried forward in the Revised Laws 1910 (being section 6515 thereof), and is in force in this state unless repugnant to the foregoing, or some other, provision of the Constitution; and, in our judgment, it is not repugnant to such provision, or any other provision, of the Constitution with reference to trial by a jury as a matter of right. This section of our statute is identical with section 359 of the Probate Code of South Dakota, and the Supreme Court of that state, in the case of Shaw et al. v. Shaw, 28 S.D. 221, 133 N.W. 292, Ann. Cas. 1914B, 554, considering the same in connection with certain provisions of the Constitution of that state similar to ours, held that it was not repugnant to the provisions of the Constitution of that state with reference to the right of trial by jury, and that, in proceedings of this kind, neither party is entitled, as a matter of right, to a trial by a jury, but that the court might,...

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