In re Cissel's Estate

• Decision Date: 24 March 1937
• Docket Number: 7611.
• Citation: 66 P.2d 779,104 Mont. 306
• Parties: In re CISSEL'S ESTATE. v. ROSENKRANZ et al. CISSEL
• Court: Montana Supreme Court

66 P.2d 779

104 Mont. 306

In re CISSEL'S ESTATE.

CISSEL v. ROSENKRANZ et al.

No. 7611.

Supreme Court of Montana

March 24, 1937

Appeal from District Court, Rosebud County; S.D. McKinnon, Judge.

Proceeding by Fred W. Rosenkranz to probate the last will and testament of William B. Cissel, deceased, contested by Carrie P Cissel. From a judgment denying probate, the petitioner and another appeal.

Affirmed.

J. J McIntosh, of Forsyth, and D. L. O'Hern, of Miles City for appellants.

F. F. Haynes, of Forsyth, for respondent.

STEWART Justice.

This is an appeal from a judgment denying probate of a purported will of William B. Cissel, deceased.

The will was executed February 17, 1933. Deceased died October 13, 1935, at the age of 85 years. The record discloses that he left surviving him his widow, two sisters, and some nieces, grandnephews, and grandnieces. He bequeathed one-third of his real estate to his wife, with the added provision, however, that there was to be deducted from this bequest an advancement of $3,500, claimed to have been made to her during his lifetime. The rest of the estate, real and personal, was bequeathed to a niece. Fred W. Rosenkranz was named executor to act under bond, and J. J. McIntosh, drawer of the will, was named attorney for the estate. Carrie P. Cissel, widow, was the sole contestant below, and she is the respondent here.

The contest was tried to the court without a jury, upon the ground that deceased was mentally incompetent at the time the will was executed, for a long time prior thereto, and at the time of his death. This condition was denied by the niece and executor, who are the appellants here.

The evidence shows that deceased and his wife had been married 38 years and had lived together on a small farm near Forsyth. By their mutual efforts they had accumulated considerable property consisting, in addition to the home place, of a small farm nearby and some town property. A bank failure in 1923 caused them to lose about $12,000 of their accumulations. Their labors, for the main part, were devoted to farming and truck gardening; they marketed their produce at Forsyth and to neighbors.

Among the findings of the court which have support in the evidence was the fact that the wife was dutiful, considerate, and proper, and that no children were born as issue of their marriage. Another finding was that in 1927, testator, being then of sound and disposing mind and knowing the natural objects of his bounty, had made a lawful will in which he left all of his property to his wife. This will was apparently destroyed, and was subsequently revoked by express provision in the will which is now the subject of contest. The court also found that there had been no advancement as claimed in the will, and that the intention of deceased was to completely disinherit his widow.

The trial court has afforded us an unusual opportunity to observe and understand its reasons for the judgment rendered. The order denying admission of the will to probate and making findings of fact and conclusions of law is in the record. We take occasion at this point to quote from that order, as follows:

"The testimony is voluminous and it is unnecessary to review it at length. Suffice it to say, I carefully considered it during the trial and have again given it serious attention with the aid of the excellent briefs of counsel. The evidence is conflicting and it may be tersely summarized as follows: On contestant's side it appears that the deceased for five years before his death was forgetful and childish; that he was addicted to the excessive use of intoxicating liquor; that his conduct in many respects was reprehensible and disclosed a mental deterioration, and that he was subject to delusions. In short, the deceased was afflicted with senile dementia. On behalf of the proponent, the deceased was pictured as a man of declining years but still capable of managing his business affairs; that he attended to his business in an efficient manner, and that he was of a sound mind at the time of the execution of the will which is offered for probate. However, there is a persuasive thing that impels the court to adopt the theory of the contestant. It is but natural that a person who has lived with his helpmate for about thirty-eight years, and that association being in the main agreeable, should see to it that upon his death she would not be the object of charity if his estate could avoid it. Her welfare would be the foremost thought of a person in full possession of his normal mental faculties, and especially is this true if that helpmate had labored with him in the accumulation of his estate. Here we find that the highest value placed on the real estate is $8,000, and according to the purported will the widow is to receive one-third thereof, or the share that she is given as a matter of right under the law, but she is chargeable with $3,500 which the deceased claimed to have advanced her in his lifetime, although the proof is lacking that any such advancement was ever made. So if the will is upheld, it can readily be seen that the widow does not receive a penny; on the contrary she is indebted to the estate, and all of the property of the deceased goes to a niece whom he had not seen for sixteen years prior to his death. Such a disposition of his property, in view of all of the circumstances in this case, is so repugnant to fair play that it indelibly stamps the testator as a man unable to understand the extent of his property and the relationship he bore to to the person who should naturally be the object of his bounty."

The assignments of error go to the refusal of the trial court to adopt proponent's findings of fact and conclusions of law directing the admission of the will to probate. These assignments resolve themselves into the single question, viz.: What was the mental condition of the testator at the time the will was executed?

In disposing of this case, we must necessarily have in mind some of the well-settled principles of law which arise in connection with a will contest on the ground of testamentary incapacity. It will be noted that the trial judge found from the evidence that the deceased was afflicted with advanced senile dementia. This, briefly stated, is a form of dementia or insanity which occurs in old age and which is characterized by hopeless decay or loss of mental faculties. See the following texts: Maloy on Nervous and Mental Diseases, p. 350; Smoot on Insanity, p. 70; Singer & Krohn on Insanity and Law, p. 84. These authorities give a fair and comprehensive review of the symptoms and characteristics incident to this form of insanity. It follows from the very nature of the disease that one so afflicted is not necessarily in all stages without testamentary capacity. The disease is progressive in character, and it is in its advanced stages that the sufferer generally lacks testamentary capacity. Herzog's Medical Jurisprudence, § 700, p. 518. It was very aptly announced by Maloy in his work above cited, as follows: "He who lives until the mellowness of age softens his life, but dies before his faculties are impaired or lost may be considered fortunate. He avoids the stigma that is attached to senile dementia."

The record contains much testimony bearing on the activities and habits of decedent during his later years; his forgetfulness and lapses of memory, particularly with regard to happenings of recent occurrence; his course of conduct in sexual attempts upon his livestock; his delusions with respect to the water in a neighbor's well being sour and black, poisonous and unhealthful, and about the same neighbor's barn blowing from and to its foundation; and his delusions about his fear and feeling that certain people were continually persecuting and trying to rob him, and that a certain local doctor had inherited a large sum of money in Ohio. The delusions appeared to have no factual foundation to support them. They were apparently the creatures of a deranged mind of which the functions had become affected by advancing years, worry over losses, and perhaps excessive use of liquor.

When the record is considered in the light of the evidence and of the cases and precedents collected and summarized in the various works on nervous and mental diseases, the conclusion is impelling that, as the trial court found, deceased was in the advanced stages of senile dementia.

There is certainly evidence in the record to sustain that conclusion.

It is important to understand who is competent to make a will. Section 6974, Revised Codes, provides, in effect, that every person over the age of eighteen years and of sound mind may make a will. All that is required by this section is that a person have testamentary capacity at the time of the execution of the will. The question might well be asked just how queer a man must be in order that it may be determined that he has no testamentary capacity. It is a question, not whether a testator is sane or insane, but rather whether or not he is mentally competent. In the case of In re Carroll's Estate, 59 Mont. 403, 196 P. 996, 997, this court said on that point: "In our opinion, the word 'incompetent,' when applied to an individual's incapacity to make a will, should be construed to apply to any person who, whether insane or not, is, by reason of immaturity, old age, disease, weakness of mind, or from any other cause, unable to understand what property he has, the relationship that he bears to those who would naturally be the objects of his bounty, and what disposition he may be making of his property at the time." See, also, In re Bielenberg's Estate, 86 Mont. 521, 284 P. 546; In re Cummings' Estate, 92 Mont. 185, 11 P.2d 968. Thus it may be said from this statement...