Cunningham v. Stender, 16795

Citation255 P.2d 977,127 Colo. 293
Decision Date30 March 1953
Docket NumberNo. 16795,16795
PartiesCUNNINGHAM v. STENDER.
CourtSupreme Court of Colorado

Waldo Riffenburgh, Fort Collins, Kenneth W. Robinson and Robert D. Charlton, Denver, for plaintiff in error.

Albert P. Fischer and L. R. Temple, Fort Collins, Hatfield Chilson, Loveland, for defendant in error.

KNAUSS, Justice.

Defendant in error was the proponent in the county court of Larimer county of a 'lost' will alleged to have been executed by his widowed sister, Dorothea Cunningham, a resident of Ft. Collins, Colorado, in which instrument proponent, four of his brothers and sisters and a nephew were named as devisees and legatees. Caveat was filed by plaintiff in error, son and only heir at law of the alleged testatrix. In this caveat the son alleged that the will was not in existence when his mother died; that if she made such a will, she was not possessed of testamentary capacity at the time of the execution thereof, and that the will, if executed, was procured by fraud and undue influence exercised by proponent.

The decision of the county court was adverse to proponent. On appeal to the district court of Larimer county, the verdict of the jury also was against proponent, and he brings the case here to this court by writ of error. It Stender v. Cunningham, Administrator, 123 Colo. 5, 225 P.2d 52, the judgment of the district court was reversed and the cause remanded for further proceedings. On a retrial of the issue the verdict of the jury was again in favor of proponent and the 'lost' will was admitted to probate and record. Caveator brings the cause here by writ of error. We shall refer to the parties either by name or as proponent or caveator.

In the instant case, by the will offered for probate, a nephew of decedent, residing in Denver, was bequeathed one thousand dollars; two sisters and two brothers of decedent, living in Denver, each were given one-fifth of the residue of the estate, and a like one-fifth interest was given to a sister of decedent living in California, all to the exclusion of plaintiff in error who was the sole heir of his mother, and the only one of the interested parties resident in the home town of testatrix.

C. J. Cunningham, contending that his mother died intestate, was, prior to the submission of the 'lost' will for probate, appointed administrator of the estate of his mother. Cunningham filed the caveat in his individual capacity, and not as administrator of the estate. From the record we find that the first time the words 'as administrator of the estate of Dorothea Cunningham' were appended to the name of C. J. Cunningham was in the special verdict of the jury in the first trial in the district court.

Proponent moves this court to dismiss the writ of error asserting that Cunningham, as administrator, has 'no appealable interest in the judgment of the lower court, and is not a proper party to prosecute this writ of error'. Counsel for defendant in error rely on Barth, Executor v. Richter, 12 Colo.App. 365, 55 P. 610; Wilson, Executor v. Board of Regents of University of Colorado, 46 Colo. 100, 102 P. 1088; Reddington v. Reddington, 66 Colo. 485, 180 P. 675; Fenn v. Knauss, 87 Colo. 175, 285 P. 945; Blandy, Executrix v. Taaffe, 111 Colo. 382, 143 P.2d 273.

We are told in the brief of counsel for proponent, in support of this motion, that 'individually he [Cunningham] is not complaining.' Were we to sustain this motion to dismiss the writ of error, we would subordinate substance to shadow. Courts look to the substance rather than the mere form. Ward v. Teller Reservoir & Irrigation Co., 60 Colo. 47, 153 P. 219; Kern v. Campbell, 97 Colo. 64, 47 P.2d 688. Here, it is patent from the record that Cunningham filed the caveat in his individual capacity. When Stender appealed from the judgment of the county court to the district court, he entitled the appeal as 'Stender v. Cunningham, as administrator of the estate of Dorothea Cunningham, deceased.' The same title was used in the district court, and also when the case was brought by Stender to this court, reported in 123 Colo. 5, 225 P.2d 52. After remand, the same title was used in the trial in the district court; all this without objection on the part of counsel for proponent.

Under the authority of Blandy v. Taaffe, supra, we may strike the words 'as administrator of the estate of Dorothea Cunningham, deceased' so that the record will speak the truth concerning the capacity in which Cunningham appears. The proceeding here should be entitled 'In re Estate of Dorothy Cunningham, C. J. Cunningham v. Royal T. Stender'. Accordingly, it is so amended. The motion to dismiss the writ of error is denied.

Counsel for plaintiff in error specify as error:

1. The insufficiency of the evidence to sustain the verdict of the jury.

2. Error in instructions regarding testamentary capacity.

3. That the evidence was insufficient to overcome the presumption that, since the original will was last seen in the exclusive possession of the mother of caveator, and could not thereafter be found, the same was by her destroyed with intention to revoke the will.

4. That the trial court erred in denying Cunningham a new trial because of newly discovered evidence.

The record in this case, in some respects, presents an unusual situation: The will attempted to be proved was allegedly dated April 2, 1948; on July 27, 1948 Dorothea Cunningham in the county court of Larimer county, Colorado, was adjudged a mental incompetent, and declared to be 'by reason of old age, disease or weakness of mind incapable, unassisted to properly manage and take care of herself or her property'; she died August 31, 1948.

Because error in the instructions requires a reversal, we need not consider specifications numbered 1, 3 and 4.

The trial court told the jury in Instruction No. 6, speaking of what constitutes 'sound mind at the time ot the making of the will':

'* * * It is enough if she was capable of comprehending her property interests of which she was possessed, and of herself determing what disposition she desired to make of such property, and of making such disposition.'

And in Instruction No. 7, the court said:

'* * * It is only your province to determine whether or not the will was in fact the will of the testator; that is, that the will was executed by her at a time when her mind had sufficient capacity to know and undetstand what disposition she wished to make of her property and upon whom she wished to bestow the same, * * * even if the jury are satisfied that the mental powers of Dorothea Cunningham had become enfeebled or distrubed by disease at the time she made the alleged will, still, if they find from the evidence that she did fully understand and intend to make the disposition which she made of her property, that is sufficient as touching the question of mental soundness or capacity.' (Emphasis supplied.)

But this is not sufficient. One may 'fully understand and intend to make the disposition which she made of her property,' and yet be incompetent to make a will. More is involved than mere capacity to understand what disposition she is making and an intent to make disposition of her property. Her understanding and intention may have been based upon an inability because of disease or otherwise to remember and know the natural objects of her bounty. To illustrate, let us assume a case, where the testatrix, by reason of disease, has no recollection whatever at the time she signs a will that she has a son. In her mental confusion she believes herself to be without children. She knows she has property and she knows of what it consists. Erroneously believing that she has no son, she intends to leave that property, let us say, to a church, to an orphan asylum, to her physician, or, as in the instant case, to a nephew and her brothers and sisters. Obviously, if such is the mental state of the testatrix, she is incompetent to make a will. Yet under Instructions Nos. 6 and 7 the court in effect told the jury that such a will would be good and valid, because it was executed at the time when 'she did fully understand and intend to make the disposition which she made of her property,' the court adding:

'that is sufficient as touching the question of mental soundness or capacity.'

In Instruction No. 7 we find the following:

'* * * Even if the jury are satisfied that the mental powers of Dorothea Cunningham had become enfeebled or disturbed by disease at the time she made the alleged will, still, if they find from the evidence that she did fully understand and intend to make the...

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    ...or should be considered to be the recipients of his bequests. See, e.g., 79 Am.Jur.2d Wills § 71, at 330 (1975); Cunningham v. Stender, 127 Colo. 293, 255 P.2d 977 (1953). It is well recognized that evidence of the mental condition of the testator within a reasonable time before or after th......
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    ...Vic E. Breeden, III (Petitioners).1 First, Petitioners argue that the probate court incorrectly applied both the "insane delusion" and the Cunningham2 elements tests for testamentary capacity and improperly merged the insane delusion test with the Cunningham elements test. Second, Petitione......
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12 books & journal articles
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    • Colorado Bar Association Colorado Lawyer No. 52-1, February 2023
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    ...also In re Estate of Romero, 126 P.3d 228 (Colo.App. 2005) (defining testamentary capacity and insane delusion); Cunningham v. Stender, 255 P.2d 977 (Colo. 1953) (defining testamentary capacity). [12] Nelson v. Nelson, 497 P.2d 1284, 1286 (Colo.App. 1972) (citing 26A C.J.S. Descent & Distri......
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    • Colorado Bar Association Colorado Lawyer No. 19-9, September 1990
    • Invalid date
    ...1980); Union Nat'l Bank of Little Rock v. Smith, 400 S.W.2d 652, 653 (Ark. 1966); Creek v. Union Nat'l Bank, 266 S.W.2d 737 (Mo. 1954). 9. 255 P.2d 977 (Colo. 1953). 10. Banks v. Goodfellow, 5 L.R.-Q.B. 549 (1870). 11. In re Estate of Murphy, 483 P.2d 1364 (Colo.App. 1971). 12. Matter of Es......
  • Being of Sound Mind: Standards for Testamentary (and Other) Capacity
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    • Colorado Bar Association Colorado Lawyer No. 40-7, July 2011
    • Invalid date
    ...the intended purposes without being subject to unnecessary scrutiny or ultimate invalidation. --------- Notes: [1] Cunningham v. Stender, 255 P.2d 977 (Colo. 1953). Litigation over testamentary capacity has an interesting history, including the case of 19th century Kentucky abolitionist Cas......
  • Legal Guidelines and Methods for Evaluating Capacity
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    ...2003). 5. CRS § 15-11-503. 6. CRS § 15-11-504. 7. CRS § 15-11-501. 8. Breeden, 992 P.2d 1167 (Colo. 2000). 9. Cunningham v. Stender, 127 Colo. 293, 255 P.2d 977 (1953). 10. Hanks v. McNeil Coal Corp., 114 Colo. 578, 168 P.2d 256 (1946). 11. Lehman, supra, note 3. 12. Breeden, supra, note 8;......
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