Cook v. Bolduc

Decision Date17 May 1916
Docket Number848
Citation157 P. 580,24 Wyo. 281
PartiesCOOK v. BOLDUC, ET AL
CourtWyoming Supreme Court

Rehearing Denied June 29th, 1916, Reported at: 24 Wyo. 281 at 291.

ERROR to the District Court, Big Horn County; HON. CHARLES E WINTER, Judge.

Will contest by Anna Cook Bolduc and another against Nina May Cook. Judgment for contestants, refusing to admit the will to probate and contestee brings error. The facts are stated in the opinion.

Reversed and remanded with directions.

O. F Goddard, C. A. Zaring, and Matson & Kennedy, for plaintiff in error.

The court erred in denying contestee's motion to strike portions of the petition. (40 Cyc. 1156; Fulton v. Freeland, 219 Mo. 494, 118 S.W. 12, 131 Am. St. Rep. 576; Pierce v. Pierce, 38 Mich. 412; Flint's Estate, (Cal.) 34 P. 863.) It was error to allow a jury trial. (Sections 5440-5441, Compiled Statutes 1910.) Section 5468, Comp. Stats. 1910, does not apply. The case is not within the exception provided for. (Section 5456, Comp. Stats. 1910. See also Contest after Probate, Section 5447.) The admission of evidence relating to the adoption of contestants by deceased and his former wife was prejudicial error. (6 Am. & Eng. Ann. Cases 608; 3 Am. Dec. 395; 52 Am. Dec. 167; 62 Am. Dec. 80; Calkin's Estate, 44 P. 577; Rick's Estate, 117 P. 546; Gleason Estate, 130 P. 872; Estate of McDevitt, 30 P. 101.) Declarations made by testator prior to the execution of the will are not admissible to prove fact of undue influence. (Dan Hobson, et al. v. H. C. Moorman, 5 Am. & Eng. Ann. Cases, 601; Hodgdon's Estate, 138 P. 111.) Declarations made at the time of the execution of the will may be admissible as part of the res gestae, or declarations made at other times may be admissible as the best evidence of a particular fact, in some instances, or to show the testator's motives and state of mind. Declarations at other times will not, however, usually be entitled to consideration upon the question of undue influence unless there is other evidence in that direction. (Hobson v. Moorman, 5 Am. & Eng. Ann. Cases 606; 90 S.W. 152, 3 L. R. A. (N. S.) 749, citing Calkin's Estate, 44 P. 577, 112 Cal. 296; Matter of Donovan, 140 Cal. 390, 73 P. 1081; Jones v. Crogan, 98 Ga. 552, 25 S.E. 590; Yorty v. Webster, 205 Ill. 630, 68 N.E. 1068; Bevelot v. Lestrade, 153 Ill. 625, 38 N.E. 1056; Griffith v. Diffenderffer, 50 Md. 466; Shailer v. Bumstead, 99 Mass. 112; Middleditch v. Williams, 45 N. J. Eq. 726, 17 A. 826; in re. Wiltsey, 122 Iowa 423, 98 N.W. 294; Waterman v. Whitney, 11 N.Y. 157, 62 Am. Dec. 71; Herster v. Herster, 122 Pa. St. 239, 16 A. 342; Kirkpatrick v. Jenkins, 96 Tenn. 85, 33 S.W. 819; In re. Townsend, 122 Iowa 246, 97 N.W. 1108; Powers v. Powers, 78 S.W. 152; Marx v. McGlynn, 88 N.Y. 357; Boylan v. Meeker, 28 N. J. L. 274.) Declarations of the testator not made contemporaneously with the execution of his will are merely hearsay evidence. (Stevens v. Vancleve, 4 Wash. (U.S.) 265; Coghill v. Kennedy, 119 Ala. 641, 24 So. 459; Matter of Gregory, 133 Cal. 131, 65 P. 315; Underwood v. Thurman, 111 Ga. 325, 36 S.E. 788; Griffith v. Diffenderffer, 50 Md. 480; Shailer v. Bumstead, 99 Mass. 122; Patterson v. Lamb, 21 Tex. Civ. App. 512, 52 S.W. 98.) The motion for a directed verdict should have been sustained. (Clark v. Young, 142 S.W. 1032; In re. Shell's Estate, 28 Colo. 167, 63 P. 413.) Contestants failed to establish undue influence. (Gibson v. Gibson, 24 Mo. 227; Bush v. Bush.) Declarations afford no substantive proof of such influence. (Linebarger v. Linebarger, 10 Am. & Eng. Ann. Cases 596; Comphers v. Brown, 76 N.E. 678; In re. Hess Will, 31 Am. St. Rep. 690; Kaufkam v. Kaufman, 61 Am. St. Rep. 813; Gwin v. Gwin, 48 P. 300.) Undue influence to vitiate a will must destroy the free agency of the testator at the time and bear directly on the testamentary act. (Weber v. Sullivan, 12 N.W. 319; In re. DeLaveaga's Estate, 133 P. 308; Pierce v. Pierce, 38 Mich. 413; Ginter v. Ginter, 101 P. 634.) The fact that testator's wife exercised influence over her husband in his home affairs or in his business is not evidence of undue influence. (Jostine v. Hamblin Estate, 140 P. 677; In re. Gleason's Estate, 130 P. 872; Vol. 13 Ency. of Evidence.) Circumstantial evidence that will support the contest on the ground of undue influence must be something more than suspicion. (In re. Shell's Estate, 63 P. 413; Fulton v. Freeland, 118 S.W. 12; In re. Lavinburg's Estate, 119 P. 915; In re. Kilborn's Estate, 120 P. 762; Herwick v. Langford, 41 P. 701; Beyer v. Lafevre, 186 U.S. 114; Gardner v. Gardner, 34 Am. Dec. 340; Latham v. Udell, 38 Mich. 238.) What is and what is not undue influence which will support a will contest on that ground is clearly shown by the following authorities: 40 Cyc. 1030; 40 Cyc. 1032; In re. Wilford's Will, 51 A. (N. J.) 501; Maynard v. Taylor, 168 Mass. 107; Zelozoskei v. Mason, 64 N. J. Eq. 327; Church's New Probate Law and Practice, Vol. 2, pages 1668-1672; In re. Morey's Estate, 82 P. 57 (Cal.) ; Morgan v. Morgan, 30 App. Cas. (D. C.) 436; 13 A. & E. 1037-1042; Parker v. Lambertz, 128 Iowa 496; Mallow v. Walker, 115 Iowa 238; In re. Kah, 113 N.W. 563 (Iowa) ; Kerr v. Lunsford, 2 L. R. A. (W. Va.) 668; Kennedy v. Dickey, 68 L. R. A. 317; In re. Powell, 138 Iowa 326; Perkins v. Perkins, 116 Iowa 253-259; Chapter 134, Session Laws 1915.

E. E. Enterline, Thomas M. Hyde, and T. W. Lafleiche, for defendants in error.

The ruling upon the motion to strike portions of contestants' petition is not reviewable. (Perkins v. McDowell, 3 Wyo. 328; Littleton v. Burgess, 16 Wyo. 58.) The probate laws of Wyoming authorize jury trials in will contests; it is clearly provided for by the statutes. (Section 5440, Comp. Stats. 1910.) Section 5441 provides that the courts will make a special finding after hearing the case. Future probate contests are tried on issues of fact in the same manner as in original contest. (Comp. Stats. 1910 Sections 5445-5446-5447.) Contests of noncupative wills are conducted in the same manner. (Section 5438, Comp. Stats. 1910.) Objections to appointments of executors or letters of administration must be heard by the court or judge. (Sections 5496, 5516 and 5517.) Orders removing executors and administrators are to be made by the court or judge. (Sections 5520, 5521, 5522, 5539 and 5540, Comp. Stats 1910.) Objections to the sufficiency of executors' or administrators' bonds may be heard by the court, judge or commissioner. (Sections 5543, 5544 and 5546, Comp. Stats. 1910.) And charges of embezzlement or mismanagement must be heard by the court or judge. (Sections 5482, 5483 and 5484.) See also Sections 5558 and 5559 and similar references appearing in the statutes relating to rejection of claims, reference of claims, sales of property, enforcement of written contracts for conveyance, accounting, orders, trials, and appeals, and it will be noted that in all instances providing for a hearing upon objections other than for the contest of wills; both before and after probate, the words "court or judge," in some instances "court, judge or commissioner," or "court or officer," are used. Two decisions of this court indicate the right of trial by jury in will contests. (Weidenhoft v. Primm, 16 Wyo. 352, 94 P. 453; In re. Barrett's Estate, 22 Wyo. 281, 140 P. 95.) The admission of the record of proceedings relating to the adoption of contestants was not error; the record shows that the proceedings were regular and are therefore not subject to collateral attack. (Nugent v. Powell, 4 Wyo. 173, 20 L. R. A. 199.) Declarations of the testator may be admitted to prove or disprove his weakness of mind and susceptibility to undue influence. (40 Cyc. 1157-1158.) The testimony with reference to the non-payment of certain bequests made by testator's first wife was elicited on cross-examination and error cannot be predicated thereon. (Synd. Imp. Co. v. Bradley, 6 Wyo. 171; Atchison v. Arnold, Admin., 11 Wyo. 351; Lellman v. Mills, 15 Wyo. 149, 87 P. 985; Knickerbocker Ice Company v. Gray, 6 A. & E. Ann. Cas. 608; Jackson v. Kniffen, 3 A. D. 390; Roberts v. Trawick, 52 A. D. 164.) As to admissibility of testator's declarations to prove undue influence, see Waterman v. Whitney, 62 A. D. 71; In re. Calkin's Estate, 44 P. 577; In re. Rick's Estate, 117 P. 539; Gleason Estate, 130 P. 872; In re. McDevitt's Estate, 30 P. 101. It was competent for contestants to show that a large part of the property of which the deceased died possessed was acquired through the will of his former wife and that he had promised his former wife that his children should receive all of the property. (In re. Ruffino's Estate, 48 P. 127; Appeal of Gunn, 63 Conn. 254, 27 A. 1113; Murphy v. Nett, 47 Mont. 38, 130 P. 451.) The admissibility of the testimony of John and Mary Mengel not being discussed in the brief must be deemed to have been waived. (Boswell, Admin., v. Bliler, 9 Wyo. 277; Reiordan, et al. v. Horton, et al., 16 Wyo. 363; Pearce v. Holm (Wyo.) 152 P. 787.) Evidence of testator's relations with deceased prior to marriage was admissible. (40 Cyc. 1168-1169, cases cited; Alford v. Johnson, et al., 146 S.W. 516; In re. Flint's Estate, 34 P. 863; Fulton v. Freeland, 219 Mo. 494, 131 A. S. 576.) Evidence of the value of property left by testator's former wife was admissible. (Board of Commissioners v. Young, 3 Wyo. 684.) The objection made to the denial of contestee's motion for a directed verdict was waived by the introduction of evidence by contestee at the close of contestants' case. (Columbia, Puget Sound Ry. Co. v. Hawthorne, 144 U.S. 202, 36 L.Ed. 405; Grand Trunk Ry. Co. v. Cummings, 106 U.S. 700; Accident Ins. Co. v. Crandall, 120 U.S. 527, 30 L.Ed. 740.) The motion was properly denied. (In re. Shell's Estate, 28 Colo. 167, 63 P. 413.) The...

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7 cases
  • Nelson's Estate, In re
    • United States
    • Wyoming Supreme Court
    • February 9, 1954
    ... ... Undue influence must be such as destroys free agency and thereby substitutes the will of another for that of the testator. Cook v. Bolduc, 24 Wyo. 281, 157 P. 580, 158 P. 266; In re Anderson's Estate, Wyo., 255 P.2d 983. Elmer had nothing to do with the execution of the ... ...
  • Waters' Estate, Matter of
    • United States
    • Wyoming Supreme Court
    • June 11, 1981
    ... ... juror, the district court, or this court is of the opinion the testator should have made under the circumstances; but was it the will of Josiah Cook at the time and was it his desire that his property should be disposed of after his death as therein bequeathed and devised? Wills deliberately made ... * * * " (Emphasis added.) Cook v. Bolduc, 24 Wyo. 281, 291, 157 p. 580, 581-582, reh. denied 24 Wyo. 281, 158 p. 266 (1916) ...         The view was reiterated in In re Lane's ... ...
  • Estate of Loomis, Matter of
    • United States
    • Wyoming Supreme Court
    • May 3, 1991
    ... ... In Wyoming, a will deliberately made by a person of sound mind is not to be lightly set aside. Brosius v. Gardner, 683 P.2d 663 (Wyo.1984); Cook v. Bolduc, 24 Wyo. 281, 157 P. 580 (1916). The burden of proving undue influence rests upon the will contestant. Merrill v. Van Etten, 80 Wyo. 276, ... ...
  • Draper's Estate, In re
    • United States
    • Wyoming Supreme Court
    • September 12, 1962
    ... ... * * *' Cook v. Bolduc, 24 Wyo. 281, 157 P. 580, 581, 582, 158 P. 266 ...         Reviewing the record and giving the evidence every inference favorable ... ...
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