Brantner v. Papish

• Decision Date: 11 May 1942
• Docket Number: 14934.
• Citation: 109 Colo. 437,126 P.2d 1032
• Parties: BRANTNER v. PAPISH.
• Court: Colorado Supreme Court

126 P.2d 1032

109 Colo. 437

BRANTNER v. PAPISH.

No. 14934.

Supreme Court of Colorado, En Banc.

May 11, 1942

Rehearing Denied June 15, 1942.

Error to District Court, Boulder County; Frederic W. Clark, Judge.

Will contest by Anthony F. Brantner against Joseph Papish. To review the judgment, Anthony F. Brantner brings error.

Reversed and remanded with directions.

BAKKE J., dissenting.

O. W. Weber and C. F. Fundingsland, both of Boulder, and Carl Cline and Kenneth of Boulder, and Carol Cline and Kenneth Lorrin Smith, both of Denver, for plaintiff in error.

David E. Griffith, of Denver, and Goss & Hutchinson, of Boulder for defendant in error.

OTTO BOCK, Justice.

In this case the caveator, a son and heir at law of Barbara Brantner deceased, contests her will on the sold ground of alleged undue influence exercised over her by proponent and sole beneficiary thereunder, who also is a son and heir at law of deceased. The court, over objections of caveator, sustained proponent's motion for a directed verdict, based upon the ground of insufficient evidence, and judgment was entered admitting the will to probate. Reversal is sought by writ of error. The material points urged for reversal will be considered under the ruling of the court granting the motion for a directed verdict. The facts alleged to show undue influence are predicated in part upon the death of a former husband of deceased, Anton Raneka, who, it is alleged, was killed on or about May 1, 1890, in Illinois, his death resulting from a pistol-shot wound, and other wounds caused by his precipitation into and down a mine shaft; that John Durklin, who later became the husband of deceased, was charged with the commission of this homicide, deceased being charged as an accessory thereto and incarcerated with him in a prison in Illinois, for her alleged complicity in the murder; that subsequent thereto deceased moved to Colorado and married her alleged accomplice. This marriage was under a name assumed by decedent, and the facts relating to the demise of her husband were kept secret from friends associates and relatives. After setting forth the above facts, it is specifically alleged in the amended bill of particulars of caveator as follows:

'(d) That subsequently thereto decedent established her residence in the state of Colorado, and became a respected citizen of said state, and that none of the above facts were known to her friends and associates, children or grandchildren, with the exception of the proponent and Mary Mallick, a daughter, Steve Mallick, a son-in- law, this caveator, a son, and various other parties to this affiant as yet unknown.

'(e) That the proponent well knew these facts and all of them, and well knew the fear and dread with which decedent regarded a disclosure thereof; and that said proponent, through threats and menaces of disclosure thereof, made to the said decedent at various times and almost continuously during her lifetime, and particularly just preceding and at the time of the making of the purported will here involved so influenced and threatened and created fear of such exposure in the mind of said decedent that she made said purported will entirely in favor of said proponent, and to the exclusion of her other children and grandchildren, and in express conflict with her expressed view and wishes as communicated to said other children and grandchildren, and solely through fear and as the results of said undue influence so exercised.

'(f) That said acts of threats and menace and undue influence were done and performed by the said proponent for the purpose and with the intent of frightening and threatening said decedent and compelling her against her will and against her independent judgment and desire and contrary thereto, to execute the said purported will, and to make provision only for proponent therein.'

Was there sufficient evidence to submit the issue of undue influence to the jury? In answering that question we are required to consider all of the offers of proof made by counsel for caveator, of which there were at least three, and to which objections by counsel for proponent were sustained. It is stipulated in the record that under the laws of descent of the state of Colorado, Mary Mallick and the caveator, Anthony Brantner, are heirs at law of decedent, and would have inherited had it not been for the will in question.

The facts contained in the offers of proof, as proposed evidence of the caveator and Mary Mallick, both heirs of decedent, may be summarized as follows: That Anton Raneka (the surname spelled variously), former husband of deceased, was killed in Braceville, Illinois, in the year 1890; that he had been very brutal to deceased; that she and her subsequent husband, John Durklin, were implicated in this homicide; that Mary Mallick was an eyewitness to her stepfather's death, she being at the time approximately twelve years old; that her mother and her subsequent stepfather were detained for a considerable length of time in a jail in Braceville, Illinois, and that when they were released they came directly to Colorado, where they established their residence. For a short time deceased was known as Antonio Brantner, but subsequently she changed her name to Barbara Brantner; that Mary Mallick and the caveator, some time in May, 1923, while in the presence of deceased, heard Joe Papish, the proponent, say to deceased that if she was going to lend any money to caveator, Anthony Brantner, he would report her concerning the trouble she had had in Illinois, and would cause her to be sent back for trial, and that deceased, in reply thereto, begged him not to do it; that she would not give caveator any money, and began to cry. Mary Mallick, while testifying outside of the presence of the jury, was asked whether she had heard similar conversations, aside from the one in May, 1923, to which she replied, 'I had heard aplenty but I have no witnesses here that heard it, and so that don't count you say, or they claim it don't count anyway.'

Counsel for caveator contend that as the instant case is a will contest proceeding, section 2, chapter 177, '35 C.S.A., has no application whatsoever, and that for that reason the court committed error in sustaining objections to the offered testimony of Mary Mallick and Anthony Brantner, children and heirs at law of deceased. This contention is erroneous. We always have followed the minority rule on this question, namely, that unless they come within some of the exceptions mentioned parties directly interested in the subject of litigation in cases of this character are incompetent to testify as witnesses, under the provisions of our statute. In re Shapter's Estate, 35 Colo. 578, 586, 85 P. 688, 6 L.R.A.,N.S., 575, 117 Am.St.Rep. 216; 51 L.R.A.,N.S., 195; 28 R.C.L., p. 512, § 99. While we may be more sympathetic with the majority rule, in our opinion we are not warranted in now adopting it without legislative action, especially since we have said that section 2, supra, is so clear and unambiguous that it requires no construction. Cree v. Becker, 49 Colo. 268, 273, 112 P. 783.

It next is contended by counsel for caveator that a very substantial part of the offered and rejected proof is admissible under subsection 'Sixth' of section 2, supra, which is as follows: 'In any such action, suit or proceeding, any adverse party or parties in...