Cannon v. Seyboldt

• Court: Idaho Supreme Court
• Writing for the Court: MORGAN, J.
• Citation: Cannon v. Seyboldt, 55 Idaho 796, 48 P.2d 406 (Idaho 1935)
• Decision Date: 19 July 1935
• Docket Number: 6232
• Parties: MARY MURPHY CANNON, Respondent, v. CLARENCE E. SEYBOLDT and DELLA SEYBOLDT CONYERS, Appellants

48 P.2d 406

55 Idaho 796

MARY MURPHY CANNON, Respondent, v. CLARENCE E. SEYBOLDT and DELLA SEYBOLDT CONYERS, Appellants

No. 6232

Supreme Court of Idaho

July 19, 1935

WILLS-NUNCUPATIVE WILLS-PROBATE-EXECUTION-STATEMENTS OF DECEASED-EVIDENCE-ATTESTATION-REQUEST TO WITNESSES-WHO MAY MAKE NUNCUPATIVE WILL-CHARACTER OF PROPERTY-APPEAL AND ERROR-DEPOSITIONS-REVIEW.

1. Where evidence consists of depositions, Supreme Court is in as good a position as trial judge to find facts established thereby, and must examine such evidence and determine its value.

2. Deceased's statements, not witnesses' inferences as to deceased's meaning, are controlling in determining whether statements constituted nuncupative will.

3. From earliest times English common law required that, to make valid nuncupative will, testator must call on some of those present at time of orally declaring will to bear witness that it was his last will.

4. Nuncupative wills are not favored, and very strict proof of all essential facts is required (I. C. A., secs. 15-234 to 15-236).

5. Evidence held insufficient to establish nuncupative will where it did not appear that deceased believed he was about to die when conversation with witnesses occurred, or that deceased asked anyone to bear witness that statements constituted his will (I. C. A., secs. 15-234 to 15-236, 70-116).

6. Any person competent to make written will may make nuncupative will disposing of entire estate (I. C. A., secs. 14-301, 15-234 to 15-236).

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.

Appeal from judgment of district court reversing order of probate court denying probate of nuncupative will. Reversed.

Judgment of the district court reversed with instruction. Costs awarded to appellants.

Roy L Black and O. R. Baum, for Appellants.

Where nuncupative wills are permitted or authorized in any of the states or territories of the United States, it is by virtue of express statute expressly authorizing them and prescribing the limitations, requirements and conditions of making and preserving them.

A digest of the statutes of each state and territory on wills including nuncupative wills, is compiled and found in (Thompson on Wills, Drafting, Execution, etc., chap. 28; Schouler on Wills, 6th ed., sec. 436, note 3).

The laws of Idaho being silent in not authorizing nuncupative wills and in not providing requirements for the making, witnessing and execution of such wills, the common law of England thereon is the law of Idaho thereon. (Cox v. St. Anthony Bank & Trust Co., 41 Idaho 776, 242 P. 785; Sprouse v. Magee, 46 Idaho 622, 269 P. 993; 25 R. C. L. 1054, sec. 280.)

The animus testandi, that is, the expression in some manner of the intent of the testator that the words spoken by the testator were intended by him should constitute his last will, both under the common law before the statute of frauds and under said statute of frauds has always been an indispensable requirement. In the Seyboldt case this requirement is wholly lacking. (30 Am. & Eng. Ency., p. 563; Schouler on Wills, secs. 448, 449; Alexander on Wills, vol. 1, p. 213; Page on Wills, sec. 377.)

To establish animus testandi or testamentary purpose of the deceased, something more must be shown than the words of the will and that the attention of the witnesses was called to them. A declaration of the testator that such was his will or some other unequivocal act or fact of equal import, showing that an actual testamentary disposition of the property was intended, must be proved and there must not only be present animus testandi but also the intent and mind to nuncupate. (Schouler on Wills, vol. 1, secs. 448, 449; Alexander on Wills, vol. 1, p. 213; Page on Wills, vol. 1, sec. 377; Winn v. Bob, 3 Leigh (Va.), 140, 23 Am. Dec. 258; 30 Am. & Eng. Ency. 563.)

Only personal property could be willed by nuncupative will under any stage of the common law. Under Idaho law real property cannot be conveyed except by written instrument. (Schouler on Wills, secs. 433, 450; Alexander on Wills, sec. 170; Irwin v. Rogers, 91 Wash. 284, 157 P. 690, L. R. A. 1916E, 1130; 1 Lewis' Sutherland on Stat. Const., 2d ed., sec. 298.)

Merrill & Merrill, for Respondent.

The Idaho statutes permit any person over the age of eighteen years and of sound mind to dispose of all his property, real or personal, by any one of three kinds of wills, namely: a written and witnessed will, an olographic will and a nuncupative will. (Sec. 14-301, I. C. A., sec. 14-303, I. C. A., sec. 15-234, I. C. A., sec. 15-235, I. C. A., sec. 15-236, I. C. A., and sec. 16-502, I. C. A.)

The foregoing sections outline the law on nuncupative wills and must be read and construed in the light of sec. 70-102, I. C. A.

The will in this case is sufficient as a testamentary disposition of property and meets all reasonable requirements. (In re Hengy Estate, 53 Idaho 515, 26 P.2d 178; In re Stein's Will, 119 Misc. 9, 194 N.Y.S. 909; Mulligan v. Leonard, 46 Iowa 692; Kellner v. Hagood, 39 Ohio App. 351, 177 N.E. 637.)

MORGAN, J. Holden, J., AILSHIE, J. concurring, Givens, C. J., and Budge, J., concurring in part.

OPINION

MORGAN, J.

March 1, 1933, Ferd Seyboldt, a resident of Bannock County, Idaho, died in a hospital at Milford, Kansas, where he had gone to receive medical and surgical treatment. He left surviving his son and daughter, appellants, and his stepdaughter, respondent herein. Respondent filed in the probate court of Bannock County petition for probate of a will of which the following is a copy:

"NUNCUPATIVE WILL OF FERD SEYBOLDT, DECEASED.

"KNOW ALL MEN BY THESE PRESENTS, That on the 28th day of February, 1933, one Ferd Seyboldt of Pocatello, Bannock County, State of Idaho, was a patient in the BRINKLEY HOSPITAL at Milford, Kansas; that on said date and at said time and place the said Ferd Seyboldt was of sound and disposing mind and memory and was not acting under restraint, duress, or fraud of any person whatsoever; that at said time and place and in the presence of the undersigned, Minnie T. Brinkley and Dr. C. H. Dragoo, the said Ferd Seyboldt, addressing himself to the undersigned to bear witness of his words with respect to his will and the disposition of his property, said substantially as follows:

"'I have some property consisting of a home in Pocatello, Idaho, and some money loaned out on interest and some other property. I have a stepdaughter whose name is Mary Cannon; she lives in Idaho a little over one hundred miles from Pocatello. I love her very much. I also have a son living in Salt Lake City, Utah and a daughter living in California who are very dear to me but I love my daughter, Mary, as much as the other two and I want her to share equally with them in my estate. I have made no written will but after my death I direct that all of my property be divided, share and share alike, between my stepdaughter and my son and daughter.'

"That the foregoing is the true effect and substance of the words spoken as we can now remember them; that they were spoken clearly and distinctly and at said time the said Ferd Seyboldt was clear in mind and intellect.

"That the said Ferd Seyboldt died at Milford, Kansas, on the 1st day of March, 1933, and that the foregoing words were reduced to writing in this form and signed and subscribed by the undersigned, in the presence of each other, on this 4th day of March, 1933.

"(Mrs.) Minnie T. Brinkley

"C. H. Dragoo M. D."

WITNESS TO SIGNATURES:

"W. C. Purviance

"Carrie Whitmore."

In due time appellants filed opposition to the petition, and contest of the will if admitted to probate. Trial in the probate court resulted in an order denying the petition, and the case was appealed to the district court where it was tried de novo. The district judge made findings of fact and conclusions of law and entered judgment reversing the order of the probate court, decreeing that the opposition to the probate of the will be overruled, the contest be denied and the will be admitted to probate. This appeal is from the judgment.

The evidence of statements made by Seyboldt and relied on by respondent as a nuncupative will consists, alone, of testimony of Mrs. Minnie T. Brinkley and Dr. C. H. Dragoo, submitted to the trial judge in the form of depositions. Testimony of other witnesses was taken in the district court relating to statements made by Seyboldt long prior to his departure from Idaho to enter the hospital, which in no way relates to the statements relied on as a nuncupative will. We are in as good position as was the trial judge to find facts established solely by depositions, and it is our duty to examine such evidence and determine its value. (Ainslie v. Idaho World Printing Co., 1 Idaho 641; Roby v. Roby, 10 Idaho 139, 77 P. 213; Stoneburner v. Stoneburner, 11 Idaho 603, 83 P. 938; Van Camp v. Emery, 13 Idaho 202, 89 P. 752; Council Improvement Co. v. Draper, 16 Idaho 541, 102 P. 7; Spofford v. Spofford, 18 Idaho 115, 108 P. 1054; Parsons v. Wrble, 19 Idaho 619, 115 P. 8; Jackson v. Cowan, 33 Idaho 525, 196 P. 216; McKenzie v. Miller, 35 Idaho 354, 206 P. 505; Estate of Peterson, 38 Idaho 195, 220 P. 1086; Estate of Tormey, 44 Idaho 299, 256 P. 535; Pioneer Irr. Dist. v. American Ditch Assn., 50 Idaho 732, 1 P.2d 196; Keyes v. Keyes, 51 Idaho 670, 9 P.2d 804.)

Mrs Brinkley, who owned the hospital, was head nurse and had the management of it, testified that Seyboldt came to the institution about five o'clock in the morning February 27, 1933; that after lunch he went to his room and went to sleep; that about 6:30 in the evening she saw him and he told her he couldn't get his breath; that she called Dr. Dragoo because she thought Seyboldt was dying. Sh...