Draper's Estate, In re

• Decision Date: 12 September 1962
• Docket Number: No. 3061,3061
• Citation: 374 P.2d 425
• Parties: In the Matter of the ESTATE of Mary J. DRAPER, Deceased. Etta PENCE, Blanche M. Davis, Sylvia Smith and Anna Peterson, appellants (Contestants below), v. Fred LUSH, Executor of the Estate of Mary J. Draper, Deceased, Appellee (Proponent below).
• Court: Wyoming Supreme Court

Page 425

374 P.2d 425

In the Matter of the ESTATE of Mary J. DRAPER, Deceased.

Etta PENCE, Blanche M. Davis, Sylvia Smith and Anna Peterson, appellants (Contestants below), v. Fred LUSH, Executor of the Estate of Mary J. Draper, Deceased, Appellee (Proponent below).

No. 3061.

Supreme Court of Wyoming.

Sept. 12, 1962.

James A. Greenwood, Cheyenne, and John E. Stanfield, Laramie, for appellants.

Henderson, Godfrey & Kline, Harry B. Henderson, David D. Uchner, Cheyenne, for appellee.

Before BLUME, C. J., and PARKER, HARNSBERGER, and McINTYRE, JJ.

Mr. Justice PARKER delivered the opinion of the court.

The four sisters of Mary J. Draper, deceased, sought to revoke her February 7 1958, will on the grounds that she did not have testamentary capacity; that the alleged will was not executed as required by law or sufficiently proved to be her last will; and that at the time of the signing, she was acting under restraint, duress, menace, fraud, undue influence, and fraudulent misrepresentations--all occasioned by Fred Lush, the executor, who was named as a specific devisee and residuary legatee. The inventory and appraisement totaled some $67,000 and specific bequests other than that to Lush of $5,000 totaled $6,000.

There was a trial to a jury which failed to agree. Thereafter, the case was assigned to a judge from outside the district for a second jury trial at which time it was conceded that the 1958 will was executed according to law and that testatrix had testamentary capacity.

Proponent moved for a directed verdict at the close of contestants' testimony and again at the conclusion of the evidence, both of which motions were overruled. This jury also failed to agree, and within ten days proponent moved for judgment in accordance with his previous motions for directed verdict. The court granted the motion, adjudging the will to be valid. Contestants then charged a mistrial because of various irregularities and moved for new trial, but the motions were overruled, and the cause appealed. It is not here necessary to discuss certain of the charges of error: those concerning mistrial are not argued and those relating to instructions, refusal to submit special verdicts, and like matters become academic regardless of the outcome of the appeal since a reversal of the judgment would permit a new trial and an affirmance would indicate that there was no evidence to warrant a verdict for contestants, regardless of procedures.

Contestants draw attention to the provisions of § 1-130, W.S.1957:

'When the jury is discharged after the cause is submitted or during the trial, the cause may be tried again immediately or at a future time, as the court may direct.'

They insist that under this statute the court was without power to take any action other than to grant a new trial, citing Jones v. Chicago, B. & Q. R. Co., 23 Wyo. 148, 147 P. 508, and Pike & Richardson v. City of Sheridan, 22 Wyo. 312, 139 P. 912. They fail however to note the reason for the decisions in those cases which is apparent from the statement, 147 P. at 516:

'* * * And there is no provision in the statute permitting the court to retain control of the proceedings of the trial after so discharging the jury, for the purpose of a further consideration of the questions of law presented by the evidence. * * *' (Emphasis supplied.)

Rule 50(b), Wyoming Rules of Civil Procedure, permits the court to retain control after the discharge of the jury. The pertinent sentence reads:

'Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the moving party may move not later than 10 days after the entry of judgment to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. * * *'

See Guerrero v. American-Hawaiian Steamship Company, 9 Cir., 222 F.2d 238; Thompson v. Lillehei, D.Minn., 164 F.Supp. 716 (affirmed 8 Cir., 273 F.2d 376); Olszewski v. United Fruit Co., E.D.Pa., 34 F.Supp. 113; Howard v. United States, E.D.Tenn., 1 F.R.D. 361; Davis v. Riggle, Fla.App., 105 So.2d 600; Annotations, 69 A.L.R.2d 449, 466, 31 A.L.R.2d 885, 891; 2 B Barron and Holtzoff, Federal Practice and Procedure, § 1078 (1961); 5 Moore, Federal Practice, § 50.10 (2 ed.); and 14 Nichols, Cyclopedia of Federal Procedure, § 68.82 (3 ed.).

Rule 87, Wyoming Rules of Civil Procedure, provides that laws in conflict with the rules shall be of no further force and effect, and § 1-130 insofar as it conflicts with Rule 50(b) gives way to the rule so that a single issue remains, which the proponent states as follows:

'* * * The motion presents only a question of law as to whether or not, when all of the evidence with reasonable inferences therefrom, is considered in its aspect most favorable to the contestants, there is a total failure or lack of evidence to prove any necessary elements of their case. Willits v. Yellow Cab Company [7 Cir.], 214 F.2d 612. * * *'

We review then the evidence in the light of the law applicable to undue influence and fraud (the other charges against the will were ignored in the argument before this court).

In that connection we note contestants' argument that the testimony of proponent be disregarded on the purported authority of Hawkey v. Williams, 72 Wyo. 20, 261 P.2d 48. We think that counsel misconstrue the holding of that case for the rule is clear that in passing on a motion for directed verdict presented at the conclusion of all of the evidence the court should look for circumstances making out a case of the adverse party including the whole testimony in the case and not only that offered by the party against whom the motion is made. Savage v. Town of Lander, 77 Wyo. 157, 309 P.2d 152; In re Lane's Estate, 50 Wyo. 119, 58 P.2d 415, 60 P.2d 360. There is no reason why this rule should not apply in the consideration of the motion before us. Of course, in the matter at hand we must bear in mind the statement of In re Lane's Estate, supra, 60 P.2d at 363:

'It is true that all evidence favorable to the party adverse to the motion must be regarded by the court in the disposition thereof and also all reasonable inferences which may be deduced therefrom. But the inferences must be reasonable and legitimate. They cannot be strained or the result of mere conjecture or surmise. * * *'

Mrs. Draper was a childless widow over eighty years of age at the time of her death on August 25, 1958. Her husband had died of cancer in 1950, and she had continued to live on their farm near Albin. In 1952 she broke her hip while in California and was hospitalized there for some time. She suffered from dropsy, her legs were swollen, and as a result she customarily carried a cane and walked with some difficulty. Her vision was not good, and she used a magnifying glass to read but took newspapers and magazines, apparently read them and looked at television. Dr. Robert B. Stump, opthalmologist, the only professional witness who discussed her vision, stated that when he examined her on January 21, 1957, she could read .75M print (smaller than that used in ordinary newspapers), but read practically only with her right eye and had some eye and general fatigue on reading. He said an obtainable improvement in her vision was insufficient to warrant any steps to be taken by him; that her vision would be expected to deteriorate thereafter, but he did not think that she would have lost substantial amounts of vision before February 7, 1958.

Fred Lush, who with his wife and three children lived on a farm approximately five miles away, although unrelated to Mrs. Draper, was the executor and principal beneficiary. He had known the Drapers all his life, and with his father had visited testatrix's husband during his illness. Before that he had done some work on the Drapers' telephone. When she called him and asked that he help with her husband's funeral arrangements, he did so, and thereafter assisted her in various ways, he and his wife visiting testatrix often, twice a week or more, and helping with the repair of the property, doing chores, and taking her back and forth to town since she was not able to drive her automobile. On these trips she usually saw the beauty operator, her physician, and the pharmacist. Lush talked with her about business matters and on occasion kept her business papers (certificates of deposit and her will) in his own safe deposit box to which she had no key. She told him about various matters which he kept in confidence and conceded that to such an extent he was a confidant.

The record discloses that this relationship was about the same over the years except for the time that she was in California with the broken hip. In 1954 Mrs. Draper executed a will drafted by Ray Lee, a Cheyenne attorney. Lush brought her to town at that time and left her at the lawyer's office but did not then know about the will's being drawn. The 1954 will was introduced in evidence along with the one dated February 7, 1958, here challenged. The two instruments are remarkably similar, revoking former wills and codicils, directing the executor to pay expenses of last illness and funeral and providing for details about testatrix's burial. Both gave Fred Lush $5,000; his wife $1,000; Mary Lou Pence, a niece, $1,000; a sister, Anna Peterson, $1,000; a sister-in-law, Nannie Repp, $1,000. The 1954 will devised $1,000 to testatrix's sister-in-law, Ruth Wiles; $2,000 to James Besak, a nephew; and gave some of her personal effects to Mrs. Lush--these latter provisions were not contained in the 1958 will but there was a new bequest in the amount of $2,000 to James A. Ward, who previously lived with the Drapers for some years.

Details of the occurrences prior to the execution of the 1958...