Gwin v. Gwin

• Decision Date: 26 March 1897
• Parties: GWIN v. GWIN
• Court: Idaho Supreme Court

48 P. 295

5 Idaho 271

GWIN v. GWIN

Supreme Court of Idaho

March 26, 1897

SPECIAL VERDICT.-When the special finding of facts made by a jury is inconsistent with the general verdict, the former controls.

SAME-NEW TRIAL.-When the special facts found by the jury are contradictory or inconsistent upon a material issue, a new trial must be granted.

SPECIAL FINDING-TRUE TEST.-As to whether the special findings are contradictory or inconsistent, the true test is whether they would warrant a different judgment from the one entered.

TESTAMENTARY CAPACITY-INSANE DELUSION.-The special finding of the jury that a testator was competent to make the will in question at the time it was made, is in conflict with findings that the testator was laboring under an insane delusion, and was not of sound and disposing mind.

UNDUE INFLUENCE-SOUND AND DISPOSING MIND.-A finding that a will was made under duress and undue influence presupposes testamentary capacity, or a sound and disposing mind.

IMPEACHING WILL-EVIDENCE-ATTESTING WITNESS.-Where an attesting witness undertakes to impeach the will, his testimony should be received with the utmost caution.

DECLARATION OF TESTATOR.-The declarations of a testator made after the execution of a will showing his dissatisfaction therewith and his intention to execute a new will, are not admissible to show that said will was executed under duress or undue influence.

SAME.-A will cannot be impeached by the subsequent oral declarations of the testator.

SAME.-Such declarations are entitled to no weight, in the absence of proof of undue influence, as to the testamentary act complained of.

RELATION OF PARTIES-UNDUE INFLUENCE.-No presumption of the exercise of undue influence arises in this case by reason of the relation of the parties, or that the wife had opportunity to exercise such influence.

INSTRUCTIONS.-Instructions stating abstract principles of law when there is no evidence in the case to warrant them should not be given.

(Syllabus by the court.)

APPEAL from District Court, Cassia County.

Order set aside and a new trial granted. Other costs of this appeal awarded to appellant.

W. L Maginnis and Hays & Johnson, for Appellant.

There must be affirmative evidence of the facts or acts of undue influence before the declarations of testator are admissible. (Cudney v. Cudney, 68 N.Y. 148; In re Hess' Will, 48 Minn. 504, 31 Am. St. Rep. 665, 51 N.W. 614.) In the case at bar no facts of undue influence are testified to, therefore the alleged declarations should have been excluded. Declarations made after the execution of the will are inadmissible. (Leslie v. McMurtry, 60 Ark. 301 30 S.W. 33; Mason v. Williams, 53 Hun, 398, 6 N.Y.S. 479.) Even if admissible and true, the facts, the declarations in evidence, do not amount to undue influence. (In re Jackson, 26 Wis. 104; In re McKenna, 4 N.Y.S. 458; Trost v. Dingler, 118 Pa. St. 259, 4 Am. St. Rep. 593, 12 A. 296.) The capacity of testator at the time of making the will is the sole question to be determined in deciding upon the validity of a will on that ground. (Kinne v. Kinne, 9 Conn. 102, 21 Am. Dec. 732; Kerr v. Lunsford, 31 W.Va. 659, 8 S.E. 498.) Undue influence is a fact for the court or jury to determine, not for opinion testimony. (O'Connor v. Madesin, 98 Mich. 183, 57 N.W. 105; In re Blood, 62 Vt. 359, 19 A. 770; Stackhouse v. Horton, 15 N. J. Eq. 202.) The subscribing witness cannot testify to capacity from what he has seen since its execution. (Williams v. Spencer, 150 Mass. 346, 15 Am. St. Rep. 206, 23 N.E. 105; Chrisman v. Chrisman, 16 Or. 127, 18 P. 12; Loughney v. Loughney, 87 Wis. 92, 58 N.W. 250.) When findings are contradictory on a material point a judgment cannot be sustained. (Manly v. Howlett, 55 Cal. 94; Reese v. Cochran, 52 Cal. 495.) When the findings are inconsistent a new trial should be granted. (Shoemaker v. Railroad, 30 Kan. 359, 2 P. 517; Kerns v. McKean, 65 Cal. 411, 4 P. 404; Learned v. Castle, 78 Cal. 454, 18 P. 872, 21 P. 11; McBride v. Railroad, 3 Wyo. 247, 21 P. 687; Chicago etc. R. R. v. Townsdin, 38 Kan. 78, 15 P. 889; Aultman v. Mickey, 41 Kan. 348, 21 P. 254; Deatherage v. Henderson, 43 Kan. 684, 23 P. 1052; Sloss v. Allman, 64 Cal. 47, 30 P. 574; Union Pacific R. R. v. Sternbergh, 54 Kan. 410, 38 P. 486; Hewson v. Saffin, 7 Ohio (pt. 2), 232.) The true test as to whether special findings are inconsistent either in themselves or with a general verdict is whether they would authorize a different judgment as well as the judgment which is entered. (Loewenbery v. Rosenthal, 18 Or. 178, 22 P. 601.)

Hawley & Puckett, for Respondent.

We call the court's attention to what is meant by the term "undue influence." (Black's Law Dictionary, 1200; Haydock v. Haydock, 34 N. J. Eq. 570, 38 Am. Rep. 385; Pomeroy's Equity Jurisprudence, 951; Rice on Probate Law, 229 et seq.) It is the rule that the evidence of a subscribing witness is entitled to great weight. (Massey v. Huntington, 118 Ill. 80, 7 N.E. 269; Buckey v. Buckey, 38 W.Va. 168, 18 S.E. 383.) Findings must be construed together. (Polack v. McGrath, 38 Cal. 666.) Where a question arises as to the construction of findings, they must all be read together to ascertain the exact shade of meaning intended. (Kimball v. Lohmas, 31 Cal. 154; Milliard v. Hathway, 27 Cal. 119; Schultz v. McLean, 93 Cal. 329, 28 P. 1053; Tage v. Alberts, 2 Idaho 271, 13 P. 19; Mott v. Ewing, 90 Cal. 231, 27 P. 194; Winterburn v. Chambers, 91 Cal. 170, 27 P. 658.) Appellant contends that if a person cherishes an insane delusion, or is under undue influence, he cannot make a will. This is an erroneous view of the law. These matters will avoid a will when made, or it may not be a valid will when made, but the document is a will for all that. (Rice on Probate Law and Practice, 209, 210, 218, and cases cited.)

SULLIVAN, C. J. Huston and Quarles, JJ., concur.

OPINION

SULLIVAN, C. J.

A written document purporting to be the last will and testament of Samuel R. Gwin, deceased, by which he bequeathed substantially all of his estate and property to his wife, Minnie Gwin, and appointed her executrix thereof, without bond, was presented to the probate court of Cassia county for probate. Prior to the day set for hearing said matter, Frank P. Gwin, son of the deceased, filed written grounds of opposition to the admission of said will to probate. The grounds of the contest, as set forth in said written opposition or complaint, are as follows: 1. That the deceased, at the time of making said pretended will, was incompetent to make said will or any will; 2. That said pretended will is not the will of said deceased; 3. That, at the time of the alleged signing of the pretended will, said deceased was laboring under and had an insane delusion as to the contestant; 4. That, at the time of the alleged signing of said pretended will, said deceased was not of sound and disposing mind; 5. That, at the time of the alleged signing of said pretended will, the deceased was under duress, undue influence, passion and prejudice against the contestant. The particulars on which the last-mentioned ground is based are minutely set forth, but it is not necessary to insert them here. The complaint or written opposition is not verified. The proponent or contestee by her answer put in issue all of the material allegations of said complaint. After the hearing in the probate court said will was admitted to probate, and letters testamentary issued to contestee in accordance with the directions of said will. Thereupon an appeal was taken to the district court, where the case was tried anew by the court, with a jury. At the close of the testimony, special issues were submitted to the jury, and after receiving certain instructions from the court the jury retired to consider of their verdict. After answering the questions submitted, they returned a general verdict in favor of the contestant. The questions submitted to the jury, and answers thereto, were as follows: "1. Was Samuel R. Gwin, the deceased, at the time of making the will in question, competent to make said will? A. Yes. 2. Is the will in question the last will and testament of Samuel R. Gwin, deceased? A. Yes. 3. Did the deceased, at the time of making the will in question, have an insane delusion as to plaintiff? A. Yes. 4. Was the deceased, at the time of making said will, of sound and disposing mind? A. No. 5. At the time of making the will in question, was the deceased under duress and undue influence? A. Yes." The court thereupon rendered and entered judgment in favor of the contestant, denying the probate of said will, and revoking and setting aside the letters testamentary theretofore issued by the probate court. A motion for a new trial was made by the contestee, and denied by the court. Thereupon this appeal was taken from said order denying the motion for a new trial. The errors assigned are numerous, and go to the admission of certain testimony, the insufficiency of the evidence to justify the verdict, to the giving and refusing to give certain instructions; and the insufficiency of the verdict to sustain the judgment.

It appears from the transcript that Samuel R. Gwin, the deceased, left the state of California in 1872, with three children, Frank P., William L., and Mary F their mother being dead. For several years thereafter he engaged in different kinds of business, principally trading and freighting, in Dakota and Wyoming. In 1878 he settled in Cassia county, Idaho in which county he purchased a ranch and several thousand head of livestock, mostly cattle. The daughter married a man by the name of March. The deceased gave the two sons and son in law an interest in a certain brand of cattle, and subsequently, in 1880, bought them out at the stipulated...