Davis v. Davis

• Decision Date: 05 November 1917
• Docket Number: 8578.
• Citation: 170 P. 208,64 Colo. 62
• Parties: DAVIS v. DAVIS.
• Court: Colorado Supreme Court

170 P. 208

64 Colo. 62

DAVIS v. DAVIS.

No. 8578.

Supreme Court of Colorado, En Banc.

November 5, 1917

Rehearing Denied Feb. 4, 1918.

Error to District Court, Weld County; Neil F. Graham, Judge.

Proceedings in the matter of the estate of W. A. Davis, deceased, wherein Moses Davis proposed the will for probate, and John A. Davis filed a caveat. Judgment denying the probate, and proponent brings error. Affirmed.

Garrigues J., dissenting.

James W. McCreery and Donald C. McCreery, both of Greeley, and W T. Rogers, of Denver, for plaintiff in error.

Joseph C. Ewing, of Greeley, for defendant in error.

SCOTT J.

On the 23d day of July, 1914, an instrument purporting to be the last will and testament of W. A. Davis was presented to the county court of Weld county for probate. On the 15th day of August, 1914, a caveat was filed by John A. Davis, son and heir of W. A. Davis, objecting to its probate. The case was tried in the county court before a jury, and verdict and judgment rendered denying probate of the will. Appeal was taken from this judgment to the district court of Weld county, and the case was again tried before a jury, where verdict and judgment was rendered denying the probate of the will, and from which judgment the case is before us on writ of error for review. The will is as follows:

'I give to my boy John Davis of Fort Lupton, Colorado, ten dollars.

'I give to my son Moses 125 shares of the capital stock of The Ione Investment Company.

'I give to my daughter Anna 60 shares of the capital stock of The Ione Investment Company.

'I give to my daughter Nellie E. 55 shares of the capital stock of The Ione Investment Company.

'I hereby appoint my son Moses, executor of this my last will and testament, and request that he be allowed to serve without bond.'

The will was attested by Edith Thomas, Edwin W. Knowles, and John T. Jacobs.

There were two grounds of protest: Undue influence and mental incapacity, which latter included the specific allegation of an insane delusion on the part of the maker of the will at the time of the execution thereof, to the effect that John A. Davis was not his son. It was charged, in substance, that the testator had for some years indulged in the excessive use of drugs and alcoholic liquors to the extent that his mind and body was diseased, so that he had lapses of memory, fits of unconsciousness and insane delusions, and for such reason he was unable to clearly discern and comprehend the objects of his bounty on the date of the making of the will; that his mind was so impaired at the time and that he acted under an insane delusion that John A. Davis was not his son, and for such reason disinherited the latter; that testator executed the will under the undue influence of his children Moses, Anna, and Nellie; that these children induced and persuaded the testator to cut off the proponent from a share in the estate, and deceived and induced the testator to join with them in the organization of the corporation, styled the Ione Investment Company, and by such undue influence and deceit caused the testator to convey his entire estate to the said company, and to give a large number of the shares in such corporation to the said three children, and to, by said purported will, bequeath all the remaining authorized shares in said corporation to the said three children.

The estate conveyed by the devisor to the corporation is estimated to have been of the value of $400,000. The organization of said corporation is alleged to be as of the same date of the will. The testator was approximately 70 years of age at the date of the will. He was married to the mother of his his children in 1865, the couple living together until the date of her death, about 45 years later. John was the eldest of the children, remained unmarried, and lived at home until he was about 35 years of age. The decedent settled in Weld county when John was 18 years old, purchased a farm, and by farming and stock raising accumulated his large fortune. The three remaining children, Moses, Anna, and Nellie, continued to live with the decedent or at least on the farm until the time of his death. There is no evidence of any family dessension until after the death of the mother. John, the contestant, ceased to live at home when about 35 years of age, and the reason for this was his failing health, being afflicted with asthma and stomach trouble, as was his father. He visited at the home regularly, at least until after the death of his mother. While living at the home it appears that he devoted his time to his father's interests, in the development and accumulation of the family inheritance.

The principal contention of plaintiffs in error is that the evidence is insufficient to sustain the verdict. The additional contention to be considered is as to alleged errors of law in instructions given and refused.

The testimony of Judge Jacobs, who drew and attested the will, forms the basis largely upon which the contestor relies. It will be observed that the will proper is contained in exactly ten lines, yet the discussion, consideration, and draft occupied the entire office day from 9 o'clock in the morning until 4 o'clock in the afternoon. Jacobs testified: That he had been the friend and attorney of the testator for many years. That at the date of the will Davis was broken in health and distressed in mind. That he had been in ill health for many years, suffering from asthma and stomach trouble. That his wife died about 2 years prior to the making of the will, and that while he had been a drinking man for some years, his wife's death was a great shock to him, and from that time on he drank heavily, which seemed to greatly affect him in body and mind. That at the time of the making of the will he was a broken down old man, was very frail, and had fainting spells. His physical and mental condition grew worse after the death of his wife. That on the day of the making of the will be broke down and cried many times. On that day Davis came to Jacobs' office about 9 o'clock in the morning, and did not leave until about 4 o'clock in the afternoon.

Prior to the making of the will Jacobs had prepared articles of incorporation at the behest of Davis and the three proponent children. These articles were filed on the 12th day of the month and the organization completed on the 15th, the day the will was executed. Davis had conveyed all his property to this corporation. The authorized capital stock was 400 shares, of a par value of $100 per share. So that the bequests were confined to shares of stock in this corporation. The testator and his three children, Moses, Anna, and Nellie, were the only persons interested in the corporation. On the day of the execution of the will the following shares were issued: To Moses Davis 80 shares, to Anna Davis 40 shares, and to Nellie Davis 40 shares. It does not appear from the record that the remaining 240 shares were ever issued to the testator, although he attempts to bequeath them by the will to the three children.

The circumstances surrounding the making of the will are detailed by Jacobs in brief and in substance as follows: That he asked Davis how he wanted the will drawn, and he replied, 'Mose wants to control the estate, and we will give him shares enough in the corporation.' Two hundred and forty shares then remained for disposition. He said, 'We will give Mose control and divide the rest between Anna and Nellie, giving Anna a shade the best of it, and give John $5,' afterward saying he would give John $10. That he then drew a rough draft of the will in which was written, 'I give to my son John ten dollars.' When I read that to him he became very much excited, got up out of the chair, came in front of my desk, and said, 'Take that word 'son' out of there.' I insisted that he should be properly identified, as there might be others of the same name. He commenced to cry, and became much more excited, and said, 'You can allude to Mose as my son, and Anna and Nelie as my daughters, but don't allude to John as my son, because he is not my son, and I am not his father.' He kept on crying, and I kept arguing with him. He finally sat down in the chair and continued to reiterate that John was not his son. I asked him as to how I should allude to John. He finally said that in the South they allude to the negroes around the plantation as the master's boys, as 'my boys.' He said you can allude to John as 'my boy John,' but it must be in that Southern sense, and that he would never consent to the use of the word 'son.' The witness then drew a line through the word 'son,' and substituted the word 'boy.' That in the draft he had named Moses and Anna as joint executors. That the testator then told him to take that out. That 'Mose wants to control alone, and it won't do; it won't suit him, and will make trouble.' He said, 'I will make it up by giving Anna money; I can always keep her quiet with money.' The witness testifies that he argued with the testator, and urged that he ought at least to give John a few thousand dollars. He said not more than $10, and repeated, 'I am not his father.' Witness thought he had reference to some unnatural or unkind conduct on the part of John, and said, 'Of course he is your son,' but the testator said: 'No, some other man must be his father than me. Since his mother died I have thought about it all the time. He is so different from me, and it must be some other man is his father.' The witness then testifies as to how he undertook to argue with the testator, and to dispel the thought by presenting to him the fact of the goodness of his wife and her faithful devotion for many years; how John and he were both alike afflicted with asthma and stomach trouble; now...