Cocanougher's Estate, In re, 10656

• Decision Date: 03 March 1965
• Docket Number: No. 10656,10656
• Citation: 145 Mont. 60,399 P.2d 420
• Parties: In the Matter of the ESTATE of Effie Della COCANOUGHER, Deceased. Charles L. COCANOUGHER, Contestant and Plaintiff, Respondent, v. William Marion COCANOUGHER and Effie May Nyhart, Proponents and Defendants, Appellants.
• Court: Montana Supreme Court

Page 420

399 P.2d 420

145 Mont. 60

In the Matter of the ESTATE of Effie Della COCANOUGHER, Deceased.

Charles L. COCANOUGHER, Contestant and Plaintiff, Respondent, v. William Marion COCANOUGHER and Effie May Nyhart, Proponents

and Defendants, Appellants.

No. 10656.

Supreme Court of Montana.

Submitted June 17, 1964.

Decided March 3, 1965.

Leonard A. Schulz (argued), Carl M. Davis (argued), Dillon, for appellants.

Mark J. Doepker (argued), Butte, Frank E. Blair (argued), Virginia City, William Sheehan, Philipsburg, Doepker & Hennessey, Butte, for respondent.

R. D. McPHILLIPS, District Judge, sitting in place of CASTLES, J.

Will contest wherein, after the jury found undue influence, the district court refused to grant contestees a new trial and they have appealed.

This case, under almost identical facts, was previously before this court in Estate of Cocanougher, 141 Mont. 16, 375 P.2d 1009. In that case the jury found that the testatrix was competent to execute a will, but did so under undue influence. Although fraud was alleged, the court granted a motion of nonsuit as to that question. There, the district judge granted contestees' motion for a new trial to be had on the question of undue influence. Contestant appealed that order and this court affirmed.

Two other appeals have reached this court involving the same parties in estate matters concerned with the administration of the estate of Effie Della Cocanougher, the mother of each of the parties to this action. See Cocanougher v. Cocanougher, 141 Mont. 28, 375 P.2d 1014; Cocanougher v. Cocanougher, 141 Mont. 597, 380 P.2d 883.

In view of this background, any further factual statement would seem superfluous, and further, the facts are as well stated in the above referred citation as could be done here. The chronicle of the Cocanougher family is firmly enough engraved in the legal annals of Montana.

As in Estate of Cocanougher, supra, the jury in this case again returned a special verdict to the effect that the mind of the testatrix was not free from undue influence at the time she executed her will.

Appellants here, proponents of the will, have set out seven specifications of error. The first five specifications resolve themselves into the question of whether there was sufficient evidence presented to the jury upon which to base their special verdict finding undue influence. Specification number six concerned an instruction, and the last complains of the court's permitting amendments to the bill of exceptions. As will be seen, there is no need to concern ourselves with the last enumerated specification.

In Estate of Cocanougher, supra, at pages 22 through 25, of 141 Mont., 375 P.2d 1009, we have stated what the law is in Montana concerning the question of undue influence. Although the question was not directly before the court in that case, we stated on pages 25 and 26 of 141 Mont., on page 1013 of 375 P.2d that:

'The record in the instant case is voluminous and most, if not all, of the plaintiff's evidence was directed toward the alleged incompetency of the testatrix to make a will. Yet, at the same time it was repeatedly admitted by the plaintiff that he dealt with his mother in business affairs as usual. There was no evidence, or at the very most just a suggestion of evidence, as to any undue influence being exercised, as the term is used in our statute and cases heretofore referred to. According to all of the witnesses, none of them knew of the execution of a will or its terms. * * *

'As mentioned before, the record is voluminous and much of it is directed to competency which is not in issue here. * * * At the time testatrix made her will she was living alone and attending to her own affairs. She was old, but strong-willed. Her last testament was drafted by an attorney of her own choosing. It was executed in the absence of beneficiaries and without their knowledge until following her death. She did not change it for twenty months before her death. This matter is being returned for a new trial so we shall not comment further, except to say, that our review of the testimony and exhibits reveals much to indicate that the trial judge did not abuse his discretion in granting a new trial.'

We have thoroughly reviewed the transcript on appeal. We have viewed this in an effort to establish what substantial new evidence was brought out in this case over what was presented to the first jury on the same subject. We regret to say that it appears that there is substantially nothing new to establish the fact or facts of undue influence.

The court is mindful that it is difficult to determine this case in the light of the findings of two Madison County juries. Further, the court is aware that where there is substantial evidence in support of a jury's findings, they should not be disturbed by the appellate court. Hardy v. Hardy, 133 Mont. 536, 326 P.2d 692. But, is it possible two Madison County juries could be wrong?

As we have stated before, we are long committed to the rule that we will not reverse the finder of fact unless the evidence clearly preponderates against it. This is a sound rule that should not be avoided lightly, but where there is insufficient evidence to support the conclusions of the finder of fact, such a rule should not stand as a bar to justice. Quitmeyer v. Theroux, Mont., 395 P.2d 965; Estate of Ruegsegger, 143 Mont. 32, 386 P.2d 739; and see also In re Estate of Bodin, Mont., 398 P.2d 616.

As was stated, the first five specifications of error go to the question of the sufficiency of the evidence to sustain the verdict of the jury. It should be pointed out here that it is incumbent upon this court to review with particularity the evidence submitted on behalf of a contestant of a will, for, as pointed out in 25 Mont.L.R. 168, over 75 percent of the cases submitted to a jury in will contests are decided in favor of the contestant. The right to testamentary disposition of one's property is a fundamental one which reaches back into early common law. For, as this court stated in In re Murphy's Estate, 43 Mont. 353, 370, 116 P. 1004, 1008, 'jurors are often inclined to disregard the evidence and to set aside a will upon some excuse found outside of the evidence, because the dispositions made by the testator do not comport with their personal notions of what is just and proper; and that in all such cases it is incumbent upon the court not to permit a will to be set aside except upon substantial evidence tending to show that it is not in fact the will of the testator.'

Perhaps this case could be sent back to a Madison County jury any number of times and returned with a like result each time. But as the law was set out in the Estate of Cocanougher, supra, and the recent California case of In re Fritschi's Estate, 33 Cal.Rptr. 264, 384 P.2d 656, there must be sufficient evidence for a jury to base their verdict. It is not what the jury desires that determines whether a will stands or not, rather it is whether there is strong and cogent evidence to support the jury's findings and verdict. The burden upon the contestant must be met and sustained before any will can be invalidated.

Also, the consideration to be given evidence in determining whether there is substantial evidence of undue influence was reviewed in Cause No. 10607, Estate of Maricich, Mont., 400 P.2d 873, decided February 24, 1965, by this court. After reviewing the Montana cases this court said:

'The law in the cases concerning undue influence places upon the contestant the burden of proof in showing substantial evidence of undue influence. In determining this issue on undue influence we may consider:

'(1) Confidential relationship of the person attempting to influence the testator;

'(2) The physical condition of the...