In re Cole's Estate

Decision Date07 April 1924
Docket Number10611.
CourtColorado Supreme Court

Rehearing Stricken May 5, 1924.

Department 2.

Error to District Court, City and County of Denver; Julian H Moore, Judge.

In the matter of the estate of Queen V. Cole, deceased. From a judgment for Albert J. Cole, contestant, the Colorado National Bank and David N. Holden, proponents, bring error.


Stokes, & Sherman and N. Walter Dixon, all of Denver, for plaintiffs in error.

Rees D Rees, C. E. Wampler, and Rothgerber & Appel, all of Denver for defendant in error.


Plaintiffs in error were proponents of a will executed by Queen V. Cole, deceased, and the defendant in error is the son of said testatrix and a contestant of the will. The ground of the contest was that the testatrix was not of testamentary capacity when the will was executed. On a trial of that issue to a jury in the district court, verdict was in favor of contestant, and judgment was entered accordingly. The case is now before us for review.

The will, after making sundry bequests to friends and relatives, devoted the remainder of the estate to charitable purposes. The only reference in the will to the contestant was this:

'I give and bequeath to my son, Albert J. Cole, one silk eiderdown comforter and two water color portraits now owned by me. The reason that I do not give more to my son, Albert J. Cole, is that he has been amply provided for by his father, Henry Cole, deceased.'

It is contended by defendant in error that this bequest is itself evidence that the testatrix was insane. It being established that one making a will is not bound to dispose of his property according to the rules of descent or relationship, the fact that the testatrix practically disinherited her son, even without the explanation she made of her action, would be no reason for regarding her as lacking testamentary capacity.

There are numerous errors assigned, but we do not think it necessary to consider more than one of them; that is, the refusal of the court to permit testimony as to acts of the contestant which might have been a basis for the feeling of the testatrix toward him, unless a knowledge of those acts was brought home to her. There was evidence that the testatrix entertained a belief that her son was addicted to drinking and consorting with lewd women. The contestant contends that this belief was a delusion, which shows the testatrix incompetent to make a will. He offered, however, no substantial evidence that such belief was without foundation, and therefore a delusion. To a question to one of proponent's witnesses as to contestant's showing evidence of intoxication when he visited his mother's home, and to an offer in evidence of the pleadings, verdict, and judgment in a divorce action, in which the defendant had been found guilty of adultery, objection was made, and sustained, on the ground that knowledge of his condition at the time named, or of the finding in the divorce action, was not brought home to the testatrix. The court announced that no act of contestant was material, unless knowledge of it was conveyed to the testatrix. That was no ground for sustaining the objection in either case.

The contestant, to overcome the prima facie case of testamentary capacity, relied upon the ground that the testatrix was a victim of a delusion. He had therefore the burden of showing the fact of delusion. That involved proof that she entertained the belief in question, that it was groundless, and was persistently held by her, without justification in fact. In McGovran's Estate, 185 Pa. 203, 39 A. 816, an attempt was made to defeat a will by showing that the testatrix had experienced a violent change of feeling toward the contestant. The court said that the change of feeling did not of itself call for an explanation in a case of this kind, and added:

'When the appellant, therefore, showed this condition of mind and feeling on the part of the testatrix toward herself, she did not then throw upon the other side the burden of showing reason and justification for it. The burden still rested upon her, as part of her case, to show, at least by evidence sufficient to support a verdict, that the change resulted from a delusion; that is to say, that it was without any cause whatever in reason or in fact, but rested wholly on things imagined. For a delusion is a creation of the imagination. It is said to be something that springs up spontaneously in the mind, and which rests on no intrinsic evidence of any kind. * * * Her extreme distrust of appellant results from an opinion with respect to her, which may have been, and doubtless was, wholly unreasonable and unworthy of her; but it can have no weight in this inquiry, except it be shown that the opinion rests upon a state of facts not real, but imagined. It is never a question of soundness of view in said investigation, but the proper inquiry always is whether the party imagined or conceived something to exist which did not in fact exist, and which no rational person, in the absence of evidence, would have believed to exist.'

In Robinson v. Adams, 62 Me. 369, 16 Am.Rep. 473, the court approved an instruction to the effect that:

'A person who believes something to exist, which not only does not exist, but of which he has no evidence sufficient to satisfy any healthy mind, and he acts upon it, or reasons upon it, and holds it as a reality,' is afflicted with an insane delusion.

The Supreme Court of Michigan, in Merriman's Appeal, 108 Mich. 454, 66 N.W. 372, defines delusion as:

'A belief in a fact for which there is no foundation.'

And in Smith v. Smith, 48 N.J.Eq. 566, 25 A. 11, it is said that:

'A delusion arises from morbid internal impulse, and has no basis in reason.'

In Bradley v. Palmer, 193 Ill. 15, 61 N.E. 856, it was charged that the testatrix was under an insane delusion that she was in danger of being poisoned, and the court said:

'Without considering whether there might not have been * * * exaggeration in the proof of her declarations as to the fear of being poisoned, it would still require proof of such facts and circumstances as would not

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3 cases
  • Breeden v. Stone
    • United States
    • Colorado Supreme Court
    • January 18, 2000 "a persistent belief in that which has no existence in fact, and which is adhered to against all evidence." In re Cole's Estate, 75 Colo. 264, 269, 226 P. 143, 145 (1924). We held that a party asserting that a testator was suffering from an insane delusion must meet the burden of showing......
  • Sanders v. Clark
    • United States
    • U.S. District Court — Western District of Pennsylvania
    • March 10, 1948
    ...283 Mass. 12, 186 N.E. 45); that it is of some evidence (Cf. Messinger v. Prudential Ins. Co., Sup., 32 N.Y.S.2d 48; In re Cole's Estate, 75 Colo. 264, 226 P. 143) and that it is conclusive (State v. McDonald, 108 Wis. 8, 84 N.W. 171, 81 Am.St.Rep. 878) in the subsequent proceedings as to t......
  • Donovan v. National Glass Casket Co.
    • United States
    • Colorado Supreme Court
    • April 7, 1924

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