In re Bryan's Estate. Kennedy v. Clinch

• Decision Date: 10 October 1933
• Docket Number: 5074
• Citation: 25 P.2d 602,82 Utah 390
• Parties: In re BRYAN'S ESTATE. KENNEDY v. CLINCH
• Court: Utah Supreme Court

25 P.2d 602

82 Utah 390

In re BRYAN'S ESTATE. KENNEDY v. CLINCH

No. 5074

Supreme Court of Utah

October 10, 1933

Appeal from District Court, Second District, Weber County; E. E Pratt, Judge.

In the matter of the estate of Joe P. Bryan, deceased. Will contest by Bertha M. Clinch, opposed by P. F. Kennedy, executor. From an adverse judgment, contestant appeals.

AFFIRMED.

J. E Evans, of Ogden, Willard Hanson, of Salt Lake City, and Lanigan & Lanigan, of Greeley, Neb., for appellant.

Royal J. Douglas and Devine, Howell & Stine, all of Ogden, for respondent.

FOLLAND Justice. STRAUP, Chief Justice, and ELIAS HANSEN, EPHHAIM HANSON, and MOFFAT, JJ., concur.

OPINION

FOLLAND, Justice.

This is a will contest. Joe P. Bryan died at Ogden, Utah, August 15, 1929, without wife or issue and leaving an estate of cash in the bank of approximately $ 8,000. A will made by him August 6, 1929, wherein Father P. F. Kennedy, pastor of St. Joseph's Church at Ogden, was named as executor, and St. Joseph's School of Ogden as the sole beneficiary, was admitted to probate December 4, 1929. Father Kennedy qualified as executor. Thereafter Bertha M. Clinch filed her petition in the cause praying that the order admitting the will to probate and the letters testamentary be revoked and set aside. The petition alleges that Bertha M. Clinch is the full sister of the deceased, his sole surviving heir and next of kin; that the instrument claimed to be the will was not duly executed as required by law; that the decedent at the time of the execution of the instrument was not, by reason of suffering from a malignant disease, and the result of a major operation, in mental condition to comprehend what he was doing nor have sufficient will power to put in execution his own desires and purposes in regard to the disposition of his property; that he was not on August 6, 1929, of sound and disposing mind and memory, but of unsound and faulty memory; that, while decedent was still weak from loss of blood and tissue and the effects of anaesthetic and shock to his system, and while he lay in a dying condition and "not able to fully and intelligently bring himself back to this material world, not competent to grasp what he was doing, nor with sufficient will power to decide for himself," and while so weakened in body and mind and reasoning faculties that he was easily influenced, he signed the instrument; that it was not his free and voluntary act, and in signing the same was not following the dictates of his own will, which would naturally have led him to devise and bequeath his estate to his heir and next of kin, the contestant, who had mothered and cared for him as a child, and between whom "there had always existed genuine love and affection"; that Father Kennedy, the pastor of St. Joseph's Church, having under his supervision St. Joseph's School at Ogden, learned of the condition of Bryan, and that he was the owner of the property not disposed of, and, knowing that he had been baptized a Roman Catholic, had not attended any Catholic church or partaken of any sacrament of any church for nine years, and knowing that, because of his religious faith, he would be susceptible to any suggestion of Father Kennedy, who was then and there acting as father confessor of Bryan, he (Father Kennedy) "then and there substituted his own will for that of said Bryan, and then and there did by duress, menace, fraud and undue influence procure and obtain an ostensible assent from the said Bryan to the effect that he, the said Rev. Father P. F. Kennedy, should draw and cause to be drawn a will leaving all the property of the said Bryan to said St. Joseph's school," and, had it not been for such duress, menace, fraud, and undue influence so exercised on him, he would have died intestate, or, if left free to exercise his own will, would have remembered his obligations which he owed to contestant and left his property to her. An answer was filed by the executor denying the allegations of undue execution of the will, of incompetency of the testator, and the exercise of any duress, menace, fraud, or undue influence, and alleging facts of due and lawful execution of the will, the mental competency of the testator, and that the will was made and executed as the free and voluntary act of Bryan.

A trial was had before a court and jury. After contestant had introduced evidence and rested, the executor moved for a judgment of nonsuit which was granted by the court and a judgment of dismissal of the contest made and entered. The contestant appeals and assigns as error: (1) the granting of the motion for nonsuit; (2) that the grounds of the motion for nonsuit were not precisely or specifically stated; and (3) the admission of certain testimony on cross-examination as not proper cross-examination.

Because of the nature of the case, we summarize the evidence rather fully as follows: Mr. R. J. Douglas, called by the contestant on direct examination, testified in substance that he was an attorney at law residing at Ogden, Utah; that he went to the Dee Memorial Hospital in that city on the evening of August 6, 1929, in response to a telephone call received at his home; that he met Father Kennedy at the entrance of the hospital, where the following conversation took place: Kennedy said: "Hello, you got my message?" The witness: "I did." Kennedy: "There is a man in the hospital who is sick and wishes to make some disposition of his property." Douglas: "I anticipated as much, having been called to the hospital many times and I have brought with me, pen, ink and paper." Douglas testified he had never met Bryan before, but was introduced to him on this occasion by Kennedy. Bryan was in bed in a room in the hospital, and there were present Bryan, Kennedy, Mrs. Hunt, a nurse, and the witness; that, after he had been in the room about half an hour, he prepared a paper, the purported will, which was in his own handwriting except the signatures, and was written on paper brought from his home. On cross-examination he testified, without objection, assigned as error, except as noted, that he was not a Roman Catholic but a thirty-second degree Mason; that, prior to meeting Father Kennedy at the hospital entrance, they had never had any conversation respecting Bryan nor any other conversation than that related until they entered the room of Bryan; that in the hall outside of the door of Bryan's room they met Dr. Draper, the surgeon who had operated on Bryan, who said to them: "This man wishes to make some disposition of his property. He wants to give it to the St. Joseph's school, on Lincoln Avenue and Twenty-seventh or Twenty-eighth Street. He has told me that is what he wants to do." The witness said: "I am here for that purpose. Is the man very sick?" Doctor: "Yes, he is a sick man." Douglas: "Well, is he too sick to make a will, or make disposition of his property?" Doctor: "No, he is not. It is perfectly all right for him to make out any papers necessary." Upon going into the room, Father Kennedy said, "Joe, how do you feel?" To the question, "What did he say?" Objection was made that it was not proper cross-examination. The objection was overruled and the ruling assigned as error. The witness then related what was said by Bryan to the effect that he felt fine except for rheumatism in his right arm, that he had no pain in the abdomen. In answer to a question by the witness, Bryan said he wanted to make a will. Objection was made to any testimony of any further conversation on the ground that it was not proper cross-examination. The objection was overruled and is assigned as error. The witness then detailed the conversation with Bryan as to his age, name, where he lived, what relatives he had, and what disposition he wished to make of his property; that the testator said: "I have a sister who lives in Nebraska, but it doesn't make any difference what her name is, because I don't intend leaving her any of my property. I don't want her notified I am sick. If I should die I don't want her notified of my death"; that all his bills were paid except doctor's and nurse's bills and hospital expenses. As to his property, he said: "I want to give my property to the little St. Joseph's School, on Lincoln Avenue. That little Catholic school down there,--do you know where it is? I want them to have everything I have got"; that Father Kennedy was present during the conversation, but took no part except when Mr. Douglas asked him whether or not the school was incorporated. Kennedy answered that all property was held by the Catholic bishop of Salt Lake who held such property in trust for the Catholic people of the diocese. The testator stated he did not want his property to go to St. Joseph's Church but to the little school; that he wanted Father Kennedy to act as executor and take care of his affairs; that after the will was prepared it was read to Bryan, who said, "that is just exactly what I want. That is the way I want my property to go. That is fine"; that Dr. Daines, an interne, and Mrs. Hunt, a nurse, were called in to witness the execution of the will. It was again read to the testator in the presence of the witnesses. Bryan declared it was his last will and signed the document and requested the witnesses to sign as witnesses, which they did. Bryan was awake and conscious the entire time and engaged in conversation with Father Kennedy regarding conditions in Ireland while the attorney was writing the will.

Father Kennedy testified on direct examination that he was pastor of the St. Joseph's Church and manager of the St Joseph's School for Boys; that his duties with respect to the school were about the same as a principal except that he did not teach; that he was directly responsible under the bishop for the...