In re Bright's Estate

• Decision Date: 01 April 1931
• Docket Number: 6792.
• Citation: 300 P. 229,89 Mont. 394
• Parties: In re BRIGHT'S ESTATE. v. BRIGHT et al. WILLIARD et al.
• Court: Montana Supreme Court

300 P. 229

89 Mont. 394

In re BRIGHT'S ESTATE.

WILLIARD et al. v. BRIGHT et al.

No. 6792.

Supreme Court of Montana

April 1, 1931

Appeal from District Court, Fergus County; B. B. Law, Judge.

Contest and action to revoke the probate of the will of Georgana Bright, deceased, by Harry O. Williard and others against Walter S. Bright and another, as executor and executrix. From a judgment for contestees, contestants appeal.

Affirmed.

E. K Cheadle, Jr., of Shelby, and R. E. Dockery, of Lewistown, for appellants.

Wm. M Blackford and Ayers & Ayers, all of Lewistown, for respondents.

MATTHEWS J.

Contest and action for revocation of probate, of the will of Georgana Bright, by Harry Williard, Arthur H. Smurr, and Georgia Cochran against Walter S. Bright and Flora Adele Langdon. Appeal from a judgment sustaining the validity of the will and its probate. Affirmed.

Georgana Bright, a widow of considerable means, suffered a paralytic stroke in 1926 which partially incapacitated her, physically at least, and was thereafter constantly cared for by Flora Adele Langdon, a paid attendant. In April, 1928, Mrs. Bright made a will by which, among other bequests, she left $5,000 to Miss Langdon and made Walter S. Bright, a nephew of her deceased husband, her residuary legatee. She named Bright as executor and Miss Langdon as executrix.

In November, 1928, Mrs. Bright suffered a hip fracture and died February 25, 1929. The will was duly admitted to probate and the executor and executrix named duly qualified; whereupon these contestants filed their petition for the revocation of the probate of the will, setting up two grounds of contest by separate counts: First, that at the time the will was executed, Mrs. Bright was incompetent mentally; and, second, that the disposition of her property resulted from the exercise of undue influence over her by Bright and Miss Langdon. Issue was joined and trial had to the court and a jury. On the evidence adduced, the jury made special findings in favor of the contestees, which findings were adopted by the court, and judgment thereon was entered sustaining the probate of the will. Contestants have appealed from the judgment.

1. The first assignment of error is predicated on the admission in evidence, over objection, of the testimony of Frances Goozee, a nurse who attended Mrs. Bright from the time she broke her hip until her death, as to the condition of the mind of testatrix during that period. The objection was twofold: (a) That the testimony, relating to a time subsequent to the execution of the will, was incompetent; and (b) that the witness was not qualified to testify as an expert.

(a) The evidence was offered in rebuttal of numerous declarations made by witnesses in support of contestants' allegation, denied by contestees, that for two and a half years or more, prior to her death, Mrs. Bright was "mentally unable to understand or transact her ordinary business affairs," and in that condition was unduly influenced by these contestees, and further numerous statements that during all of that period she was mentally incompetent to make a will. The testimony was clearly admissible.

(b) While opposing counsel and the court insisted upon the attempted qualification of the witness as an expert, counsel for contestees specifically disclaimed an intention to offer her as such, and stated to the court and jury that he went into her previous experience "as a supplement to what she personally knew." In so far as the attempted qualification tended to show a haziness in the mind of the witness as to what cases should be classified as psychopathic, it would affect the weight to be given to her testimony but not its admissibility; this was a question for the jury, not the court. In re Murphy's Estate, 43 Mont. 353, 116 P. 1004, Ann. Cas. 1912C, 380.

An intimate acquaintanceship between a layman and a person whose mental condition is challenged entitles the layman, after giving his or her reason therefor, to express his or her opinion on the subject. Here the necessary qualification consists in showing "intimate acquaintanceship" (section 10531, subd. 10, Rev. Codes 1921; State v. Penna, 35 Mont. 535, 90 P. 787; State v. Leakey, 44 Mont. 354, 120 P. 234; State v. Davis, 60 Mont. 426, 199 P. 421), and a nurse who has been in constant attendance upon a patient for a considerable period of time comes within the "intimate acquaintance" rule. 14 Cal. Jur. 372; Estate of Huston, 163 Cal. 166, 124 P. 852. The admission of this testimony was proper.

2. The second specification is that the court erred in refusing to admit in evidence a letter written by strangers to the proceeding, to Williard and his answer thereto, back in 1923, concerning a business deal in which Walter Bright and the witness, Williard, were interested but which had nothing to do with the Bright estate. Cross-examination having developed unfriendliness between these two, Williard was permitted to explain that his feeling resulted from his reaction to the contents of the letter received and to explain the nature of the business transaction, but the court properly excluded the letters on the theory that the jury was not called upon to determine the merits of the controversy between the litigants concerning a foreign subject.

3. The court having, without objection, instructed the jury on the subject of undue influence in accordance with the law as declared in Hale v. Smith, 73 Mont. 481, 237 P. 214 refused the following offered instruction: "To establish undue influence on the part of Walter S. Bright and Flora Adele Langdon over the mind of the said Georgana Bright, and that the signing of the...