Felgar's Estate, In re

• Decision Date: 16 September 1952
• Docket Number: No. 33943,33943
• Citation: 207 Okla. 310,249 P.2d 455
• Parties: In re FELGAR'S ESTATE. FIRST PRESBYTERIAN CHURCH OF NORMAN et al. v. JUDD et al.
• Court: Oklahoma Supreme Court

Page 455

249 P.2d 455

207 Okla. 310

In re FELGAR'S ESTATE.

FIRST PRESBYTERIAN CHURCH OF NORMAN et al. v. JUDD et al.

No. 33943.

Supreme Court of Oklahoma.

Sept. 16, 1952.

Rehearing Denied Oct. 28, 1952.

Syllabus by the Court.

1. Where contestants, in compliance with requirements of 58 O.S.1941 § 61, seeking to contest a will theretofore admitted to probate, file sworn petition alleging statutory grounds and setting forth material facts thereof, and allege same to have been discovered subsequent to admission of will to probate, it is unnecessary to offer proof as to discovery of such facts, and the trial court properly overruled proponents' demurrer to contestants' evidence.

2. Ordinarily the test of testamentary capacity is the testator's capacity to understand the effect and consequence of his act at the time the will is executed.

3. The contest of a will is a matter of equitable cognizance and the findings and judgment of the trial court will not be reversed on appeal unless the same are clearly against the weight of the evidence.

Monnet, Hayes & Brown, Oklahoma City, Person Woodall, John M. (Jack) Luttrell, Norman, for plaintiffs in error.

Joe A. Smalley, Williams & Benedum, Norman, for defendants in error.

CORN, Justice.

This is an appeal from a judgment of the district court holding invalid the will of Etta J. Felgar, deceased, who died without issue, and denying probate of same.

In May, 1946, testatrix suffered a cerebral hemorrhage and paralytic stroke, necessitating her removal from her home in Norman, Oklahoma, to an Oklahoma City hospital for care and treatment. At that time she was nearing 80 years of age, and suffered from diabetes and the attendant difficulties of advancing years. While confined to the hospital her husband, J. H. Felgar, died without issue on July 19, 1946. During his last illness the pastor and some members of the First Presbyterian Church of Norman, where the Felgars had been members for many years, took charge of his business affairs. Mrs. Felgar was unable to attend her husband's funeral and, because of her condition, these church friends managed the funeral arrangements. No will by Mr. Felgar was found, and a friend of many years standing, M. L. Wardell, was appointed to administer his estate.

July 27, 1946, Mrs. Felgar was removed from the hospital to the family home in Norman. The paralytic stroke left her right side completely paralyzed. She also suffered a severe speech defect. These things, with her advanced years and general debility, made her wholly dependent upon others for even her simplest needs. The Presbyterian minister, John B. Thompson, hired three nurses who were in constant attendance for the remainder of her life. To facilitate handling matters the minister obtained a limited power of attorney (August 21, 1946) giving him authority to transact business matters for her. On September 18, 1946, another power of attorney was executed, giving to the minister and the attorney who subsequently drafted the will, authority to open her safety deposit box. Subsequent to her return home the will herein involved was drafted and executed by her on September 24, 1946, execution thereof being witnessed by one of the nurses, and Fay Davis a close neighbor who was called in for this purpose. Being unable to write the testatrix' name was signed, at the attorney's direction, by Fay Davis, a subscribing witness. The testatrix then executed the will by mark, with the assistance of this witness. Mrs. Felgar suffered another stroke in January, 1947, and died March 29, 1947.

The will was presented for probate after notice was given, including the collateral kin of Mr. and Mrs. Felgar, who appear as defendants in error herein. Upon hearing, there being no contest, the will was admitted to probate by the county court. M. L. Wardell was named executor of the will without bond. The will bequeathed $1,000 each to Raymond Kline, a friend, and Lena Barnett, the Felgar's housekeeper for many years. All remaining property of the estate, valued at between $50,000 and $60,000, was left to the First Presbyterian Church of Norman, Oklahoma, free of restriction as to its use, other than testatrix' desire same should be used for the construction of a new church building.

April 8, 1948, the collateral heirs, defendants in error herein, instituted proceedings to set aside the county court's order admitting the will to probate, and to have the will declared null and void.

The petition of Della Rohrbough to contest the will alleged she was the sole surviving heir of J. H. Felgar, and entitled to all the interest in his estate, since he died intestate, without issue, leaving as his only heir Mrs. Felgar, deceased; that under statutes of descent and distribution, one half of such estate descended to the heirs of J. H. Felgar, and one half to his wife, or next of kin.

The petition of Norris and Fredd Judd alleged their right to inherit as the only heirs of Mrs. Felgar. As grounds for setting aside the order admitting the will to probate contestants alleged incompetence, undue influence, menace and duress, and that the will was void because not executed according to law.

The First Presbyterian Church, principal beneficiary, filed answer alleging admission of the will to probate; that the Felgars were active church members, interested in the welfare of the church and that the legacy was a normal act; and further denied testatrix' incompetency, or that undue influence was exerted over her in making the will.

Separate answers of the two individual beneficiaries (Kline & Barnett) alleged that the bequests to each of them had been made in recognition of valuable services rendered the Felgars, and to testatrix during her illness.

With the issues thus joined the matter was heard by the county court, and on May 7, 1948, an order was entered revoking the previous order admitting the will to probate. From this order proponents appealed to the district court where trial de novo was had upon the issues. The testimony respecting testatrix' health and mental condition was elicited from more than two dozen witnesses. The extent of the testimony, much of which was cumulative in nature, makes it impractical to attempt a detailed narrative of all the evidence.

Much of the testimony bearing upon testatrix' competency was elicited from the three nurses who attended her constantly. The substance of their testimony was that she had the mind of a child; and would be told who visitors were just before they arrived, and then could not remember the names of old friends who came in to visit her; could not recall having eaten her meals a short while after she had finished; had employees write menus upon the wall; made child like gifts of things and then demanded their return; would go through motions of reading while holding a magazine or newspaper upside down; did not realize her husband had died, and did not know the extent of her property; following her return home from the hospital she was like a young child, unable to care for her simplest needs, and had a serious speech difficulty.

One of the nurses, Ruth Johnson, who witnessed the will signed a statement at the hearing for admission of the will to probate, that testatrix was of sound and disposing mind. However, at this trial she testified that she did not read the statement regarding her competency before signing it. This witness admitted having received gifts from Mrs. Felgar.

The other two nurses, one of whom was a registered nurse, and the other a practical nurse of many years standing, testified substantially as above set forth. Both testified that in their opinion Mrs. Felgar was not of normal mind during 1946, and was incompetent to make a will.

An immediate neighbor, Fay Davis, knew testatrix and visited her about every other day following her return from the hospital, and sometimes would not be recognized. Prior to execution of the will Mrs. Felgar seemed very upset and said: 'Worry, worry, worry, make will, morning, noon, night, make will, you come.' The witness agreed to come. About a week later one of the nurses called her to the Felgar house and she sat near testatrix while the attorney read the will. Witness observed testatrix closely and it was hard for her to concentrate and she seemed to lose interest before reading of the will was finished; she signed the will for testatrix at the lawyer's request and made a mark after placing testatrix' hand in her own. When called to testify at the hearing witness refused to sign the testimony of witnesses for admission of the will to probate because she did not believe Mrs. Felgar was of sound mind. She further testified Mrs. Felgar's mind was that of a small child.

A student who had lived in the home for several years and knew the family intimately visited testatrix twice during July, 1946. He testified that in his opinion she was mentally incompetent when he saw her at those times, which was prior to execution of the will.

A young lady, a student who resided in the Felgar home when the will was made, saw testatrix three or four times a week, described certain things testatrix did which she considered irrational and, in substance, gave as her opinion that Mrs. Felgar was wholly incompetent.

Dr. M. P. Prosser, a specialist in psychiatry and neurology, testified that a paralytic stroke tended to damage the brain; that one suffering from the debilities and displaying the symptoms shown by testatrix, as based upon evidence as heretofore set forth, would be incompetent to make a will, and that he doubted her competency at any time following the stroke in July, 1946. Further, in his opinion if testatrix had been examined by doctors when the will was made they could have determined whether she was mentally competent.

Raymond Kline, the beneficiary who resided in the Felgar home, testified to having discussed the making of the will with Reverend Thompson and M. L. Wardell. He was called to...