O'Brien v. Wallace

• Decision Date: 31 March 1958
• Docket Number: No. 18102,18102
• Parties: Frank O'BRIEN, proponent, and as Executor, legatee, and devisee of the Last Will and Testament of May A. Paige, deceased, Plaintiff in Error, v. Lee WALLACE, individually, and as Administrator of the Estate of May A. Paige, deceased, Defendant in Error.
• Court: Colorado Supreme Court

Page 1028

324 P.2d 1028

137 Colo. 253

Frank O'BRIEN, proponent, and as Executor, legatee, and

devisee of the Last Will and Testament of May A.

Paige, deceased, Plaintiff in Error, v. Lee WALLACE, individually, and as Administrator of the

Estate of May A. Paige, deceased, Defendant in Error.

No. 18102.

Supreme Court of Colorado, En Banc.

March 31, 1958.

Rehearing Denied May 19, 1958.

Foster Cline, Carl Cline, Denver, for plaintiff in error.

Dickerson, Morrissey & Dwyer, Denver, for defendant in error.

HALL, Justice.

May A. Paige, a resident of Park County, died on November 20, 1954.

On November 29, 1954, Frank O'Brien filed a petition in the County Court of Park County, seeking to probate a document bearing date October 29, 1953, purporting to be the will of May A. Paige. On March 11, 1955, Lee Wallace, the adopted son and sole heir at law of May A. Paige, filed his amended caveat and objections to the probate of said will and alleged as reasons therefor the following: (1) The purported will is not executed in accordance with the requirements of the statutes of the state of Colorado; (2) the testatrix lacked testamentary capacity at the time the purported will was executed; (3) the purported will is not the free and voluntary act and will of May A. Paige, and that execution thereof was procured by undue influence exercised by Frank O'Brien; (4) that the said May A. Paige (then May A. Wallace) and her then husband at the time they legally adopted Lee Wallace, in order to obtain the consent of Harry Clark, father of said Lee Wallace, to said adoption, agreed with said Clark that she would support and maintain Lee Wallace and would permit him to inherit her estate; would not disinherit him, and that the purported will violated that agreement; (5) that in order to obtain the consent of Lee Wallace (then eighteen years of age) to his adoption, the said May A. Paige agreed with said Lee Wallace that she would permit him to inherit her estate and would not disinherit him; that the purported will violated this agreement; (6) that the pretended will is void in that it attempts to disinherit Lee Wallace, contrary to the express provisions of the decree of adoption.

Frank O'Brien filed his answer to the amended caveat and denied all of the allegations relating to lack of conformity to law, lack of testamentary capacity, undue influence, contractual obligation with the father of Lee Wallace, contractual obligation with Lee Wallace, and alleged provisions of the adoption decree.

The purported will was admitted to probate by the county court and an appeal taken to the district court, where the issues were tried to a jury, which failed to reach a verdict. A second trial resulted in a verdict to the effect that the purported will was not the Last Will and Testament of May E. Paige. Motion for a new trial, consisting of eighty-six folios and setting forth forty- eight alleged errors, was filed, argued and denied, and judgment entered holding that said instrument is not the Last Will and Testament of May E. Paige. Frank O'Brien, proponent and plaintiff in error, seeks reversal.

We shall refer to plaintiff in error as O'Brien, to defendant in error as Wallace, and to the decedent as Paige. The purported will gave to Wallace the sum of $100; everything else was given to O'Brien, who was the son of the daughter of Paige's sister, being a grandnephew of Paige.

The trial consumed five days. The record consists of over 2,300 folios and more than fifty exhibits, many of which are made up of twenty to fifty separate parts.

The judgment must be reversed for many reasons.

Reasons 4, 5 and 6, as set forth in the caveat, are not grounds for denying probate. They relate to contractual rights and duties which if valid and binding could not be abrogated or varied by making of a will or other ex parte action of Paige. Such matters are foreign to the issues properly involved in a contest by caveat to be tried to a jury. The contractual rights asserted by Wallace in his caveat had no place in the proceedings before the county court. Such rights may only be asserted and determined in proper proceedings before a proper tribunal. 57 Am.Jur., 178, § 203; Oles v. Wilson, 57 Colo. 246, 141 P. 489; Hoff v. Armbruster, 122 Colo. 563, 226 P.2d 312; Hoff v. Armbruster, 125 Colo. 324, 244 P.2d 1069.

These matters, although wholly outside the issues involved in a will contest, were repeatedly presented to the jury through pleadings, opening statements, offers of proof, and arguments, thus seeking to convey to the jury the impression that Paige was an ingrate who sought to avoid her binding contract by making a will which it is pled:

'* * * Violated this agreement, and is void and shoudl be denied probate.'

After all the testimony was in and the parties had rested, O'Brien moved the court to strike from consideration of the jury the claim that the will was procured by undue influence. This motion was denied and over objections of O'Brien the court gave seven instructions concerning undue influence. The record is devoid of any evidence to support a claim of undue influence, and it was error to deny the motion to strike and to instruct the jury with reference to undue influence.

Wallace called as a witness John A. Rundgren, District Ranger for the United States Forest Service, who was permitted to testify at length over objections of O'Brien's counsel. None of his testimony bears even remotely on any issue before the court or jury. Counsel for Wallace prevailed upon the court to reserve its ruling on the objection that this evidence was immaterial on a promise that it would be connected up with other evidence which would disclose its materiality. As is often the case in such situations, the connecting evidence never was presented and the objections never ruled upon. The end result being that this immaterial evidence was left before the jury for its consideration.

During O'Brien's proof seeking to prove the will and during presentation of Wallace's evidence in opposition thereto, an expert witness in the field of psychiatry was in the court room and heard the testimony of four witnesses for O'Brien and nine witnesses for Wallace. Also the testimony of O'Brien, who was called as an adverse witness for cross-examination. This expert was then called to the witness stand by Wallace and, after proof of his qualifications, the following questions were propounded and answers given:

'Q. Now, Doctor, in this case have you heard all of the testimony of the witnesses concerning the mental condition of May A. Paige on the 29th day of October, 1953?

'Mr. Carl Cline: For the reasons heretofore assigned, we object.

'Mr. Dickerson: We settled those reasons.

'Mr. Carl Cline: It has been settled.

'The Court: That would be the sum of your questioning of this witness?

'Mr. Dickerson: Yes, your Honor, under the stipulation of counsel about the proper questions to propound.

'The Court: Objection overruled. He may answer.

'Q. You have formed an opinion? A. I have an opinion.

'Q. And what is that opinion, based on the evidence? A. In my opinion, based on the evidence which I have heard in the court room, on the date in question May Paige was insane.

'Q. On the 29th day of October---- A. 29th day of October, 1953.

'Mr. Dickerson: You may inquire.

'Cross Examination

'By Mr. Carl Cline:

'Q. Did I understand you to say, Doctor, that you formed your opinion from just what you heard here in the court room? A. Yes.

'Mr. Carl Cline: That is all.' (All emphasis supplied.)

From the above, it would seem that there may have been some stipulation of counsel as to the proper question to propound. The record does not disclose any such stipulation. Stipulation or not, objection was made to the question. The question was improper and the answer without probative value. The oracular pronouncement of insanity should not have...