Buttars' Estate, In re

• Decision Date: 26 September 1953
• Docket Number: No. 7945,7945
• Citation: 261 P.2d 171,123 Utah 596
• Parties: In re BUTTARS' ESTATE.
• Court: Utah Supreme Court

Page 171

261 P.2d 171

123 Utah 596

In re BUTTARS' ESTATE.

No. 7945.

Supreme Court of Utah.

Sept. 26, 1953.

George C. Heinrich, Logan, for appellant.

L. E. Nelson, George D. Preston, Logan, for respondent.

WADE, Justice.

This is an appeal from a judgment notwithstanding a verdict by a jury in a Will contest that Emma G. Buttars, the testatrix, did not have a sound and disposing mind at the time she made her Will.

The contestants and appellants herein are grandchildren of the testatrix and the children of her eldest son who had predeceased her. In her Will testatrix named all her living children leaving them her estate in equal shares and providing that if any of them should predecease her the children of such child should take the share of the predeceased child. But to the children of her eldest son who had died about a month before she had made the Will she left only a dollar each giving as her reason that her oldest son had borrowed money which had not been repaid and that the sum owed would amount to more than his share in her estate. The Will was executed in March, 1945, and testatrix passed away in July, 1952, when she was about 87 years old.

Proponents of the Will produced testimony by the two witnesses to the Will, one of whom was the attorney who drew up the Will and the other his then secretary, that the testatrix was alone with the attorney when she told him of how she wanted to dispose of her property. She waited in the attorney's office while the secretary typed the Will. After the Will was prepared it was read to her by the attorney and the testatrix then signed the instrument in the presence of her witnesses and remarked that was the way she wanted her Will and asked them to sign as witnesses which they did in her presence and in the presence of each other. The witnesses had never met the testatrix before she appeared at the attorney's office and requested him to draw a Will for her. When asked whether she had a memorandum to aid her in disposing of her property to the beneficiaries she named, the attorney testified that he could not recall that she had and that he also could not recall whether she had discussed the extent or value of her property with him. Both witnesses testified that from their observation of her in the office she appeared to know what she was doing and that she was not acting under any fraud, duress or undue influence. By this evidence the proponents made out a prima facie case entitling the Will to be admitted to probate and it then became incumbent on the contestants to prove by a preponderance of evidence that the testatrix did not have a sound and disposing mind at the time she executed the Will or that she was acting under fraud, menace or undue influence. In re Hanson's Will, 50 Utah 207, 167 P. 256.

At trial the jury returned a special verdict wherein they found that at the time testatrix subscribed the instrument proposed for probate as her Will she was not of sound and disposing mind, but that she was not acting under any fraud or undue influence. Notwithstanding this verdict the court admitted the instrument to probate as the Last Will and Testament of testatrix. This being a law case it was a question of fact for the jury to decide whether testatrix had a sound mind at the time she executed her Will. In re Hanson's Will, supra. Since the jury found that she did not have a sound and disposing mind at that time, it would have been error for the court to have admitted the proposed instrument to probate, if the evidence, viewed in the light most favorable to contestants, would have reasonably permitted such finding. Mere eccentricities and lack of a keen mind or ability to conduct ordinary business may not prove a lack of testamentary capacity. As stated by then Justice Wolfe in In re Hanson's Estate, 87 Utah 580, 52 P.2d 1103, on page 1116:

'* * * A person may not be capable of conducting ordinary business because not trained in it or even if incapable mentally may in cases be capable of making a simple will. The true test is as to whether the testatrix had 'sufficient mind and memory (at the time of making the will) to remember who were the natural objects of her bounty, recall to mind her property, and dispose of it understandingly according to some plan formed in her mind.' * * *'

See also In re Swan's Estate, 51 Utah 410, 170 P. 452. With these rules in mind we shall review the evidence.

The record discloses that at the time the Will was made testatrix was about 80 years old and had been brought to the lawyer's office by Wallace Buttars, her youngest son, who was named executor in the Will. In order to reach the attorney's office she had to ascend a steep flight of stairs. After reaching the office, Wallace left her alone there and went down to the street while she transacted the business she came for and then came back and got her when the attorney went down and informed him his mother was ready to leave. Testatrix lived in Clarkston, Utah and was unable to drive a car so whenever she wanted or needed to go to Logan, Utah, Wallace or infrequently one of her daughters, would drive her there.

Sometime in 1940, testatrix who was then 75 years of age became very ill and was hospitalized for a number of weeks suffering from kidney troubles, high blood pressure and hardening of the arteries. After she left the hospital her memory appeared poorer. She did not...