Clough v. Clough

• Decision Date: 13 December 1897
• Parties: CLOUGH v. CLOUGH.
• Court: Colorado Court of Appeals

51 P. 513

10 Colo.App. 433

CLOUGH v. CLOUGH.

Court of Appeals of Colorado

December 13, 1897

Appeal from district court, Arapahoe county.

Petition by Adelia E. Clough for the probate of a will, contested by John A. Clough, Jr. From a judgment of the district court affirming a judgment of the county court admitting the will to probate, the contestant appeals. Reversed.

Hartzell & Steele, Victor A. Elliott, and Willis V. Elliott, for appellant.

S.E Marshall, A.J. Rising, and Doud & Fowler, for appellee.

WILSON J.

This is an appeal from the judgment of the district court in proceedings therein on appeal from the county court of Arapahoe county in the matter of the probate of a will. The testator, John A. Clough, a resident of Denver, died about July, 1895. He was the owner at the time of his death of a large amount of property, real and personal, said to be of great value. He left surviving him as his natural heirs at law, his widow, the proponent of the will and two sons,--the contestant and one other--both children by a former marriage. Previous to the marriage between testator and proponent, an antenuptial contract had been entered into by them, whereby it was, in substance agreed that neither party should in any event take, control claim, hold, or intermeddle with any of the property, real or personal, which the other might own at the time of said marriage, or which he or she might thereafter acquire; that such property should forever be and remain the sole and separate estate of the party so owning the same at the time of the marriage,--the same, to all intents and purposes, as if such marriage had never been had or solemnized; that neither party should inherit from the other, but that all of the property and estate of either party, upon his or her death, should descend to the heirs at law and next of kin of the party so dying, subject to any devises or bequests, in the same manner as if the marriage had never been solemnized; and that the survivor should not and would not claim any interest whatever in the estate of the deceased party by virtue of said marriage. Shortly after the death of the testator, there was presented to the county court of Arapahoe county, for probate, a writing purporting to be his last will. By its terms, after directing the payment of a few small legacies, he devised in trust for each of his sons the rents and profits of a small quantity of realty, which it was claimed was so insignificant in amount and value as to practically result in their disinheritance. To his widow, the proponent, he devised and bequeathed the use of all the rest and residue of his estate, real, personal, and mixed, for and during her natural life; the residuary legatees being the trustees of the Colorado Seminary, the Trinity Methodist Episcopal Church of Denver, the Colorado Conference Preachers' Aid Society, and the Denver Church Extension Society of the Methodist Episcopal Church; societies and corporations existing under the laws of Colorado. In response to a citation from the county court, the contestant appeared and filed a caveat, suggesting the invalidity of the will upon various grounds, but chiefly for the reason that it was executed under the undue influence of proponent and the residuary legatees. Upon hearing, the writing was held to be the will of the deceased, and was duly admitted to probate. Contestant appealed to the district court. At the hearing in that court the contestant demanded that the issues be submitted to a jury. The court denied this application as a matter of right, but, upon its own motion, directed that a jury be impaneled. Upon the conclusion of the introduction of testimony by the contestant, counsel for the proponent, ore tenus, demurred to the evidence, and moved for a probate of the will notwithstanding the evidence that had been introduced. This motion was sustained, the jury discharged, and judgment was entered up affirming the validity of the will, and admitting it to probate. From this the contestant prosecutes an appeal to this court.

The first and most material question presented for our consideration is, was the contestant, at the hearing in the district court upon appeal from the county court, entitled as a matter of right, to have the issue whether or not the writing was the will of John A. Clough submitted to, and tried by, a jury? It is requisite to a proper understanding and determination of this that some inquiry be made into the nature and history of our laws in reference to the probate of wills, as well as the procedure and practice thereunder. In England, from whence both the law and the practice were originally derived, the ecclesiastical courts had sole and exclusive jurisdiction of wills devising personalty. Where real estate was devised, the common-law courts had sole and exclusive jurisdiction of the proof of wills, and all matters pertaining to their construction and execution. In the latter courts, with which we are chiefly concerned in the case at bar, where an issue arose, whether or not the writing was the will of the testator, it was submitted to a jury upon evidence presented by the proponents and contestants. The chancery court had no jurisdiction in the matter of proof of wills. As was said by Lord Chancellor Eldon in Pemberton v. Pemberton, 13 Ves. 296, "But the authority to declare what is and what is not a man's last will is denied to this court." Where the question did arise in a court of equity upon questions of disputed facts, it was imperative that the court direct the issue, devisavit vel non, to be sent out of that court to a court of law, and submitted to a jury. This issue was whether the writing was the will of the testator, and it was one at law. Van Alst v. Hunter, 5 Johns.Ch. 148; Case of Broderick's Will, 21 Wall. 509. In the report of the chancery commissioners to parliament in March, 1826, it was said, "In a suit for establishing a will, the heir at law is, by the long-established practice of the court, entitled to the issue, devisavit vel non." In this state, however, and in most of the states of the Union, a court of probate has been established; and to it has been given exclusive jurisdiction, in the first place, of matters pertaining to the proof of wills and their execution. The court is a special one, so far as its probate jurisdiction is concerned, and its powers are to some extent defined by statute, based, however, in the main, upon the principles established by the old English law and practice. Section 508, Gen.St.1883, gives the county court, acting as a court of probate, jurisdiction and determination of questions of law and fact relating to probate matters. Section 3490 requires a person having in his possession any last will to present the same to the county court within 10 days after the death of the testator. Section 3494 provides that, upon the production of a will for probate, the court shall issue a citation to the widow or husband and heirs at law of the testator, requiring them to attend the probate of such will before the court, at a day fixed therein. Section 3498 requires that the witnesses of the will shall be summoned to appear, and compels their appearance. The next succeeding section (3499) is as follows: "If, upon the hearing of such proof, it shall satisfactorily appear by the testimony of two or more of the subscribing witnesses to such will, that they were present and saw the testator sign such will, and attested the same at his request, or that he acknowledged the same to be his last will, and that they believe the testator to be of sound mind and memory at the time of signing and acknowledging the same, the court shall admit the same to probate and record; provided, that no proof of fraud, compulsion or other improper conduct be exhibited, which, in the opinion of the court, shall be deemed sufficient to invalidate or destroy the same, and every will, testament or codicil, when thus proven, shall be recorded by the clerk of the county court, in a book to be provided by him for that purpose, and shall be good and available in law, for the granting, conveying and assuring the lands, tenements and hereditaments, annuities, rents, goods and chattels therein and thereby given, granted and bequeathed." These sections contain all the statutory provisions in reference to the probate of wills. It will be observed that the court is not required, in express terms, to hear the testimony of any witnesses except those who attested the will. No provision is made for a contest. Upon the hearing of "such proof" (that is, the testimony of the attesting witnesses that the will was properly signed and attested, and that they believe that the testator was of sound mind and memory at the time it was signed and acknowledged) the court is compelled to admit the will to probate and record, provided that no proof of fraud, compulsion, or improper conduct be exhibited, which, in the opinion of the court, shall be deemed sufficient to invalidate or destroy it. It is true that the proviso in the section contains an implied permission, presumably to interested parties, to offer testimony tending to invalidate the will on account of fraud, compulsion, or other improper conduct, and there is, of course, implied authority to receive it; but no practice or procedure is specified, and no provision made for a hearing or trial in which the persons offering such evidence shall have a standing as parties. It will be seen, too, that no authority is given for the exhibition or reception of any proof impeaching the validity of the will for want of testamentary capacity by the testator. In either case, a would-be contestant, therefore, although present in obedience to the citation of the court, would have no standing in the court as...