Burton v. Burton, 14030.

• Decision Date: 01 June 1937
• Docket Number: 14030.
• Citation: 69 P.2d 307,100 Colo. 567
• Parties: BURTON et al. v. BURTON et al.
• Court: Colorado Supreme Court

69 P.2d 307

100 Colo. 567

BURTON et al. v. BURTON et al.

No. 14030.

Supreme Court of Colorado

June 1, 1937

In Department.

Error to District Court, City and County of Denver; H. E. Munson judge.

Action by Clarissa J. Burton, as administratrix of the estate of Charles L. Burton, deceased, and Clarissa J. Burton against Harold A. Burton and others. To review a judgment for the defendants, plaintiffs bring error.

Affirmed.

Benjamin E. Sweet and Jean S. Perkins, both of Denver, for plaintiffs in error.

Albert S. Frost, of Denver, for defendants in error.

BURKE, Chief Justice.

These parties appear here in the same order as in the trial court. Plaintiff in error is hereinafter referred to as Mrs. Burton her deceased husband as Burton, and defendants in error as defendants, or by name. Of the latter, Harold and Charles F Burton and Millie Dawson are the children of Burton by a former marriage. The others made no appearance.

This was a suit in equity to set aside certain transfers of property made by Burton to Harold and Millie shortly Before his death. As presented here, Mrs. Burton's case rests primarily upon the alleged mental incapacity of her husband. The trial court found against her and gave defendants judgment for costs. To review that judgment, Mrs. Burton prosecutes this writ.

Burton and Mrs. Burton were married October 6, 1932. He became seriously ill and was taken to a hospital May 13, 1934. About two weeks later he was returned to his home and June 14 following he died, at the age of 71. On May 26, seventeen days Before his death, while still in the hospital, he made the transfers complained of.

The only serious question presented by this record is one of fact, determined by the trial court on conflicting evidence. Two physicians expressed the opinion that Burton was incompetent. One was a general practitioner who attended him and spoke from personal knowledge; the other a specialist in mental diseases who had no such knowledge but testified in answer to hypothetical questions. Flatly contradicting this and giving excellent reasons for their conclusions, were two nurses who attended Burton, the attorney who took his acknowledgment to the questioned documents, and a number of other witnesses. On this point the judgment is amply supported.

One of the items of property involved was a promissory note executed by defendant in error Ingersoll. The complaint alleges, and the answers admit, that Burton owned this note and defendants obtained it. A photostatic copy thereof was offered in evidence and admitted over objection in which we find no merit. No issuable fact in the case was thereby affected. The circumstances under which it was obtained, and not the note itself, was the question presented. Moreover, the exhibit is not abstracted hence no possible prejudice appears from the record.

It is said the trial court erroneously held that the burden of proof to show alleged improper influence was on Mrs. Burton whereas, the grantees being Burton's children, a confidential relationship existed and a presumption of undue influence arises which puts the burden on defendants. We think not. Charles F. got nothing. Harold lived in Pennsylvania and Millie in California and they reached their fathe...