Igo v. Marshall, 18417

• Decision Date: 02 November 1959
• Docket Number: No. 18417,18417
• Citation: 345 P.2d 724
• Parties: Eva Lee IGO and Ellen Marie Casstevens, Plaintiffs in Error, v. H. Monroe MARSHALL, Proponent of the Last Will and Testament of Blanche Harrison, Deceased, Defendant in Error.
• Court: Colorado Supreme Court

Page 724

345 P.2d 724

140 Colo. 560

Eva Lee IGO and Ellen Marie Casstevens, Plaintiffs in Error, v. H. Monroe MARSHALL, Proponent of the Last Will and Testament of Blanche Harrison, Deceased, Defendant in Error.

No. 18417.

Supreme Court of Colorado, En Banc.

Nov. 2, 1959.

Fred J. Pferdesteller, Fred W. Vondy, Denver, for plaintiffs in error.

Bernard E. Engler, Denver, for defendant in error.

KNAUSS, Chief Justice.

Plaintiffs in error, hereinafter referred to as caveators, are here on writ of error from a judgment and order admitting to probate and record the last will and testament of Blanche Harrison, deceased, offered for probate by H. Morroe Marshall, defendant in error, herein referred to as proponent.

The will admitted to probate and record in the county and district courts, was dated September 30, 1955, and named proponent as executor thereof. The wife of proponent was named as sole devisee and legatee therein. The caveat was predicated on two grounds, (1) that testatrix was not of sound and disposing mind and memory at the time the will was executed, and (2) that the will was procured by the undue influence of proponent and his wife, Dorothy R. Marshall.

Issue was joined on the caveat, trial had to a jury in the district court, which resulted in a verdict finding that the instrument offered for probate was the last will and testament of Blanche Harrison, deceased. From the judgment and order admitting the will to probate and record, caveators seek reversal.

As grounds for reversal caveators assert that the facts surrounding the execution of the purported last will and testament gave rise to a presumption of undue influence and there being no evidence to rebut this presumption the trial court should have directed a verdict in favor of caveators.

Mrs. Blanche Harrison, hereinafter referred to as testatrix, was advanced in years and in poor health. She was in a Denver hospital and on August 15, 1955 one of the attesting witnesses, Barkley Clanahan, an attorney-at-law, was contacted by proponent through the trust department of the United States National Bank and on that day visited the testatrix. On August 30, 1955 in the Denver county court, the testatrix was adjudicated a mental incompetent by reason 'of old age, disease, weakness of mind' and declared to be unable unassisted to properly manage and take care of herself or her property. Mrs. Marshall was later appointed conservatrix of the estate of testatrix.

Mr. Clanahan next saw testatrix about September 6, 1955 at her home at which time he discussed with her the matter of who should act as her conservatrix. On the same occasion testatrix discussed with Mr. Clanahan her desire to deed her property to Mrs. Marshall. Upon inquiry by Mr. Clanahan as to whether she had discussed this matter with anyone, testatrix stated that she had 'discussed it with several neighbors.' Mr. Clanahan did not undertake to draw a deed and in the same conversation testatrix requested him to draft a will for her. On the recommendation of Mr. Clanahan the will was not drawn at that time.

A few days prior to September 27, 1955 proponent telephoned Mr. Clanahan stating that testatrix desired to talk to...