Bodin's Estate, In re, 10667

• Decision Date: 15 January 1965
• Docket Number: No. 10667,10667
• Citation: 144 Mont. 555,398 P.2d 616
• Parties: In the MATTER of the Estate of Minnie BODIN, Deceased. Arnold HANSON, Elias Haine, and Marie Haugrud, Plaintiffs-Contestants and Respondents, v. Ludvig WILLIAMS and Esther Hansen, Co-Executors of the Estate and Will of Minnie Bodin, Deceased, Ludwig Williams, Esther Hansen and Emma Lind, as Devisees under the Will of Minnie Bodin, Deceased, Defendants-Contestees and Appellants.
• Court: Montana Supreme Court

Page 616

398 P.2d 616

144 Mont. 555

In the MATTER of the Estate of Minnie BODIN, Deceased.

Arnold HANSON, Elias Haine, and Marie Haugrud, Plaintiffs-Contestants and Respondents, v. Ludvig WILLIAMS and Esther Hansen, Co-Executors of the

Estate and Will of Minnie Bodin, Deceased, Ludwig Williams,

Esther Hansen and Emma Lind, as Devisees under the Will of

Minnie Bodin, Deceased, Defendants-Contestees and Appellants.

No. 10667.

Supreme Court of Montana.

Jan. 15, 1965.

Rehearing Denied Feb. 17, 1965.

Kline & McCormick, Glasgow, William A. McCormick (argued), Glasgow, for appellants.

Tipp & Hoven, Missoula, Vernon Hoven (argued), Missoula, for respondents.

CASTLES, Justice.

This is an appeal from an order revoking the probate of the will of Minnie Bodin, the will having been made on March 17, 1962. The case was tried before a jury, and the issue submitted to the jury by special interrogatories was whether or not Minnie Bodin was competent to make a will at the time of its making. The jury answered the interrogatories in the negative.

Thereafter, the district judge made his order revoking the probate of the will and letters testamentary. The proponents of the will have appealed.

The proponents of the will, appellants here, are Ludvig Williams, Esther Hansen and Emma Lind. Ludvig Williams and Esther Hansen, brother and sister, are named Executors in the will. They are distantly related to the deceased, having been children of a cousin of the deceased. Emma Lind is a niece. These three proponents have equal shares of the residuary of the estate as hereinafter shown by the will.

The status of the parties, contestants and proponents, will be revealed in part by a quotation of part of the will. It stated:

'II. I acknowledge the existence of certain relatives, but exclude all except those mentioned herein.

'III. I give, grant and devise to my brother, Elias Hinie, of Minot, N. D., the sum of $500.

'IV. I give, grant and devise unto my sister, Mary, of Norway, the sum of $500.

'V. I give, devise and bequeath the remainder of my estate of every kind and nature, including real property and personal property unto Esther Hansen, Ludvig Williams, Emma Lind, and Arnold Hansen, share and share alike.

'VI. In the event my real estate, consisting of farm land, should be sold, I request that Orin Olson of Westby, Montana be given the privilege of meeting any bid on the real estate.'

The contestants of the will are Elias Hinie, a half-brother of the deceased and a legatee of $500 under the will; Marie Haugrud, a sister in Norway, the one named as Mary in the will and a legatee of $500; and Arnold Hanson, a one-fourth devisee of the remainder of the estate. Arnold Hanson is a step-son of deceased; and strangely, if his contest is successful he will receive nothing.

Arnold Hanson, the step-son, had been raised by the deceased but never formally adopted.

Elias Hinie, the half-brother, is a man 86 years of age.

The will was made by the deceased Minnie Bodin, under the following circumstances. Minnie Bodin entered the hospital on February 24, 1962, suffering from cancer which she had had for about six years. She remained in the hospital until her death on March 19, 1962. In the morning of each day, and at other times, she was given a narcotic to relieve pain. The effect of this medication would last some three of four hours. The last medication, on March 17th, the date of the will, was administered at about 1:00 p. m.

Esther Hansen, a cook at the hospital where Minnie Bodin was a patient, and who also is one of the proponents previously described, called her brother, Ludvig Williams, at Minnie's request to come to the hospital. This call was sometimes between 5:00 and 6:00 p. m. on March 17th.

Ludvig Williams went to the hospital, arriving sometime after 6:00 p. m. According to his testimony, Minnie Bodin wanted to make a will. Whereupon Ludvig called Loren O'Toole, an attorney, to come to the hospital.

Loren O'Toole arrived at about 7:00 p. m. When he arrived, O'Toole stopped at the nurses' station and talked to the nurse on duty, one Mildred Espeland. He asked the nurse if she thought Minnie Bodin was capable of executing and signing a will. The nurse informed O'Toole that Minnie had had no medication since 1:00 p. m., said that she, the nurse, thought Minnie could make a will.

Loren O'Toole then went to see Minnie Bodin. Esther Hansen and Ludvig Williams were there at the bedside, but Mr. O'Toole asked them to leave. Mr. O'Toole had not known Minnie Bodin before this occasion. He talked to no one else but Minnie and discussed with her the terms of the will. He testified that her mind was alert, that he could understand her, and that she was responsive to questions. Minnie told him about her half-brother. Elias Hinie; her sister Mary in Norway; her step-son Arnold Hanson, as well as about Ludvig Williams, Esther Hansen and Emma Lind. She also told Mr. O'Toole that she had no living children and that she had a child who died many years ago. In addition, she described her property and gave some details and explanations of her bequests or lack of them. Minnie also told Mr. O'Toole that she wanted the will prepared that same night.

Mr. O'Toole thereupon went into the nurses' station, borrowed paper and a typewriter and prepared the will. He returned to Minnie's room, read the will to her, handed it to her and asked if that was her intention, if she had any questions. She put on her glasses and looked at both pages. It was then declared by her as her will and completed with a nurse, Mildred Espeland, and Mr. O'Toole as subscribing witnesses.

More will be related later concerning the testimony and details as they relate to the problems presented.

Although ten specifications of error are set forth, we find but one question need be answered. That is, was there presented evidence of incompetency to make a will at the time of the making, sufficient to uphold the jury's answer to the interrogatory and the order of the district court?

First, we shall set forth the law in Montana applicable. The will had been admitted to probate and the presumption is that the deceased was competent and of sound mind. (In re Murphy's Estate, 43 Mont. 353, 116 P. 1004; In re Benson's Estate, 110 Mont. 25, 98 P.2d 868.) At this point it becomes incumbent upon the contestants to overcome the presumption by a preponderance of the evidence (In re Murphy's Estate, supra) or as stated in the case of In re Choiniere's Estate, 117 Mont. 65, 156 P.2d 635, the evidence must be clear and satisfactory to overcome the presumption of due execution of the will (including the mental capacity of testatrix). (See also In re Silver's Estate, 98 Mont. 141, 158, 38 P.2d 277.)

The same rule is expressed in Estate of Dillenburg, 136 Mont. 542, 349 P.2d 573, as follows:

'In considering this question, we must view the evidence in the light most favorable to contestant since the jury found in their favor and we must consider that as proved which the evidence tends to prove, and if there be in the record substantial evidence sustaining the finding of incompetency we must sustain the court's action is submitting the cause to the jury and sustain the finding of the jury and the judgment based thereon.' (Italics supplied.) The above rule was pronounced in the light of the distinction made later as follows:

'Proponents question the sufficiency of the evidence of incompetency at the precise time of making the will. As before noted, the evidence of incompetency related to times before and after he will was made and none was directed to the precise time when the will was made.

'But the evidence of the mental condition shortly before and shortly after the execution of the will is important from which inferences may be drawn to rebut the presumption of competency. In re Cissel's Estate, 104 Mont. 306, 66 P.2d 779; 2 Page on Wills (3d ed.), sec. 792, p. 553, et seq.

'Here the evidence of incompetency was not such as to show that it was intermittent or occasional, in which case a different rule applies, as pointed out in the cases of In re Murphy's Estate, 43 Mont. 353, 116 P. 1004, and In re Estate of Redfern, 64 Mont. 49, 208 P. 1072, relied on by proponents.'

We have defined what is meant by the word competent. We have stated:

"Competent' means capable, qualified, or fit (Webster's New International Dictionary); possessing legal power or capacity (United States v. Sischo [D.C.Wash.] 262 F. 1001). And a testator is competent if he is possessed of the mental capacity to understand the nature of the act, to understand and recollect the nature and situation of his property and his relations to persons having claims on his bounty whose interests are affected by his will. In re Smith's Estate, 200 Cal. 152, 252 P.325. The 'testator must have sufficient strength and clearness of mind and memory to know, in general, without prompting, the nature and extent of the property of which he is about to dispose, and nature of the act which he is about to perform, and the names and identify of the persons who are to be the objects of his bounty, and his relation towards them.' Page on Wills (2d...