Carey's Estate, In re

• Decision Date: 22 December 1972
• Docket Number: No. 4124,4124
• Citation: 504 P.2d 793
• Parties: In the Matter of the ESTATE of Julia Freeman CAREY. Robert D. CAREY, Appellant (Contestant below), v. Franklin SMITH, Appellee (Executor).
• Court: Wyoming Supreme Court

Page 793

504 P.2d 793

In the Matter of the ESTATE of Julia Freeman CAREY.

Robert D. CAREY, Appellant (Contestant below), v. Franklin SMITH, Appellee (Executor).

No. 4124.

Supreme Court of Wyoming.

Dec. 22, 1972.

John J. Rooney, Cheyenne, for appellant.

John W. Pattno, Cheyenne, for appellee.

Before McINTYRE, C. J., and PARKER, McEWAN and GUTHRIE, JJ.

Mr. Justice GUTHRIE delivered the opinion of the court.

Franklin J. Smith, who was designated as executor therein, filed a petition for probate of an instrument purported to be the last will and testament of Julia Freeman Carey, which was dated February 27, 1971. Robert Davis Carey, the grandson of deceased, filed a contest of said will, setting out three grounds: That decedent was incompetent to make a will; that Genevieve B. Carey exercised undue influence over the testatrix and procured a devise and legacy for herself; and that the said will was not properly executed and attested.

Upon the trial thereof the trial court directed a verdict for proponent and ordered the will admitted to probate. It is from that judgment the contestant, Robert Davis Carey, appeals.

Because Genevieve B. Carey is almost always in the testimony and in portions of the brief so referred to, she will hereinafter be referred to as 'Jena.'

Contestant's case was presented by three witnesses and the recall of the proponent herein as an adverse witness. A summary statement of this testimony, as received and as appears in the record, so far as it is material is as follows:

Robert Davis Carey is the grandson and only direct heir of the deceased. He had visited her four to five times a year up until the time of her death. She had resided in a private residence for at least ten years and the last four to five years had kept a housekeeper who lived in. She had broken her hip in 1968 and thereafter it was hard for her to get around by herself although she had no other specific illness. She was 88 years old when she died and he had advised her for years on major business decisions. He had discussed her will with her when she inquired as to the propriety of designating Mr. Horiskey as her executor if he, contestant, predeceased her. She wanted Jena to have the income from her estate during her lifetime if he predeceased her. The last conversation on this point was November 12, 1970. She mentioned in August 1971 she had left one-half of her property to Jena. At that time he asked her about her will and if Mr. Horiskey was still her lawyer. She told him he was no longer her lawyer and could not really say where her will was. She was confused and did not know at that time who her lawyer was, nor did she know the lawyer who had drawn the will. He asked and received permission to talk to Mr. Horiskey about her will. Mr. Horiskey told Mr. Carey that testatrix had called in November 1970 and wanted to revise her will and he had drawn one for her dated and executed November 16, 1970. Horiskey had returned this will to her when she told him she was going to have another one prepared. Mr. Carey learned from this conversation that he should make inquiry of Mr. Smith, who advised him he had drawn a will which was executed and currently in effect. Smith told him this will changed the trust arrangement whereby he and Jena were each to receive one-half the income and that all references to a trust arrangement had been deleted.

From his observation there had been a gradual deterioration of testatrix's memory over the last several years. She would repeat the same story perhaps one-half hour later. She had been a competent gin rummy player until the last two years before her death but she no longer played a respectable game. The last year of her life she was vague regarding her cash and securities and the amount of money in her savings accounts. She had made inquiry a Smith, proponent, being called as a witness for contestant, testified he had gotten in touch with contestant about the testatrix's condition and had talked to him Labor Day weekend. As a result of these conversations and after consulting relatives, her doctor, and friends, the guardianship proceeding was filed because her physical condition required she be hospitalized. Her mind was alert but would sometimes falter. She would carry on a conversation and make sense, although she repeated stories, but her physical condition was not good. She was not able to properly manage and take care of herself and her property, being physically but not mentally incompetent. Between the last of August and the middle of September he made one trip to the hospital. This was the first time he had ever seen her when she was not well groomed. In connection therewith he procured statements from Drs. Flett and Bindschadler, which appear in the guardianship file. The appointment was made on October 2 or 3, 1971.

couple of times about some American Motors stock which she had at one time owned and could not recall if she had sold it or its status. He had seen her on February 20, 1971, a week before she signed this will. She had on several occasions mentioned items she wanted him to have and to stay in his family. She felt strongly about heritage of the family. She had related to him Jena was essentially a friend; that she didn't have a deep, warm relationship with her, and didn't want to leave her any more than a modest amount. Jena had run various errands and written checks for her and helped to arrange for housekeepers and nurses. About three years before and on several later occasions they had visited about having an attorney in fact for her. Jena criticized his business ability and judgment and she was bitter toward him. He had consulted with Dr. Flett several times in the last four to five years about decedent's condition and had attempted to relieve her from carrying on financial and personal transactions. He discussed setting up a guardianship with Smith in the fall of 1971 and he had talked to her last about her property, its nature, and extent on November 12, 1970. At the time they were talking about a change in her will. She did not have knowledge of the nature and extent of her property, although he testified she had some knowledge thereof. Subsequently they may have talked about some aspect of her property. They had discussed the property she owned near Douglas and had discussed the lots she owned in Cheyenne. She recalled these generally but not the number-neither could the witness remember the specific number.

Mrs. Foltz had known testatrix for 30 years and had done housework for her at intervals until her death. Testatrix had talked to her about her will, and three to four months prior to her death had told her the will was simple-she had left everything to contestant. Her personal property was to go to contestant and continue in the family.

Mr. Horiskey, a lawyer, had known testatrix casually for 15 to 20 years. She probably didn't know who he was until 1968 when he did some legal work for her. In October 1970 he received the 1958 will and 1962 codicil from Mrs. Hickey along with the key to testatrix's safety deposit box. He called testatrix and told her he would like to deliver these to her, which he did. He further told her that she should make a change in her will or codicil because of the death of Judge Hickey. He went to see her on November 6, 1970, after a call from Jena on the fifth advising him Mrs. Carey wanted to make a change in the will. She handed him the will upon which she had made certain marks and notations. They talked about changes. At this meeting, in addition to other changes, she suggested that Jena be designated as executrix in the event contestant predeceased her. Jena did not want to act as executrix and only agreed hesitantly. As the talks progressed it developed she wanted to make specific bequests even if contestant did not predecease her. He drew a rough draft, giving it to her. At that This will was much different from the 1958 will and codicil in that it included several specific bequests, placing the remainder in trust with one-half the income to go to contestant and one-half to Jena until her death, and then the whole corpus was to go to contestant if he survived.

point she only wanted Jena to have a silver picture, desk, and her home. After this was done she decided she wanted to make certain bequests to some nurses and Mrs. Foltz. Another proposed draft was prepared, including specific bequests and providing that Robert Davis Carey receive everything else if he survived her. At that time she indicated if her grandson did not survive her she wanted Jena to have the income from the property as long as she lived. There was a discussion as to the disposal of the corpus upon Jena's death and testatrix designated St. Joseph's Orphanage. Mr. Horiskey suggested she talk to contestant about this and solicit his suggestion as to a residuary legatee. She told him at that time she did not want it to go to Jena as she did not want the property to go to Jena's family. On November 12, 1970, he was called by contestant, who told him his grandmother had called him, and Horiskey advised him he was to see the testatrix the next day. When he arrived on November 13 Mrs. Carey had taken the rough draft and put at the top 'To Jena one-half of the income,' and 'To Robert D. Carey one-half of the income.' She had made other changes, including striking contestant's name as executor, and inserting the name of Mr. Horiskey. He had explained to her earlier that if she desired to leave one-half the income to each, contestant and Jena, that a trust must necessarily be set up and the trustee named. She expressed displeasure with trusts and banks because of the difficulty she had previously had with a trustee and indicated this had started problems which had continued, but he told her this was necessary. She desired that he act as trustee and the will was drawn in that form and was executed on November 16, 1970. Jena was present at...