In re DeVine's Estate
| Decision Date | 21 January 1941 |
| Docket Number | 29394. |
| Citation | 109 P.2d 1078,188 Okla. 423,1941 OK 16 |
| Parties | In re DeVINE'S ESTATE. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Feb. 11, 1941.
Syllabus by the Court.
1. The general principles of testamentary capacity apply in cases where the testator is addicted to the use of intoxicating liquors. In such case a person may have the capacity which the law requires for making a will if, in spite of the use of intoxicating liquors, he has sufficient mind and memory to understand the nature and extent of his property, the proper objects of his bounty, and the nature of the testamentary act. The fact that he was frequently or habitually under the influence of intoxicating liquor does not render his will invalid if he had the requisite understanding at the time he made it.
2. Undue influence, such as will invalidate a will, must be something which destroys the free agency of the testator at the time when the instrument is made, and in effect substitutes the will of another for that of the testator. It is not sufficient that the testator was influenced by the beneficiaries in the ordinary affairs of life. Mere general influence, not brought to bear on the testamentary act, is not undue influence, nor does mere suspicion that undue influence might have been brought to bear justify the setting aside of a will.
3. A will contest is a case of purely equitable cognizance, and on appeal this Court will examine the whole record and weigh the evidence, but the findings and judgment of the district court will not be disturbed unless such findings and judgment are clearly against the weight of the testimony.
Appeal from District Court, Comanche County; Toby Morris, Judge.
In the matter of the estate of Lawrence DeVine, deceased. Proceeding by a nephew, Kelly DeVine, to contest the will of the deceased. Both the county court and, on appeal, the district court upheld the will, and contestant appeals.
Affirmed.
S. R Harper and Chas. G. Ozmun, both of Lawton, for contestant plaintiff in error.
H. N Whalin and John F. Thomas, both of Lawton, for proponents defendants in error.
Lawrence DeVine died testate in Comanche County, where he resided, on May 20, 1935. His will was duly admitted to probate. Thereafter Kelly DeVine, his nephew, who was bequeathed a small sum under the will, filed a contest under sec. 1110, O.S. 1931, 58 Okl.St.Ann. § 61. The county court upheld the will, and on appeal the district court impaneled a jury and submitted to it certain interrogatories, which were answered favorably to contestant, nine jurors signing the answers. The court, however, upon motion of proponents, disregarded the findings of the jury, and rendered judgment sustaining the will. Contestant appeals.
The various errors assigned are but different phrasings of the same contention, that the judgment of the trial court is contrary to the evidence and the law. We are therefore required to examine the record and weigh the evidence. In re Harney's Estate, 172 Okl. 580, 46 P.2d 503.
The grounds of contest are lack of testamentary capacity due to habitual drunkenness, and undue influence and domination of the testator by the principal beneficiaries. Contestant is a nephew of the testator, and a principal beneficiary under a former will. The principal beneficiaries under the present will are not related to the testator.
The evidence establishes beyond question that testator was at the time of his death, and had been for some time theretofore, addicted to the excessive use of intoxicating liquor, and that his indulgence therein increased in frequency in the last year of his life. He was a bachelor, apparently of mature age, his exact age not being shown, and possessed of property worth some $4,000. In May, 1932, he made a will bequeathing the bulk of his property to his nephew and a niece. In October, 1932, proponents, W. L. James and Ella James, who are husband and wife, moved on the farm home of testator. They had not known him prior to that time, but a brother of proponent W. L. James was at that time living on the farm and assisting in the care and cultivation thereof. This brother moved away shortly after the arrival of proponents, and thereafter proponents lived with testator on the farm, the husband cultivating the farm and the wife doing the housework. The will in their favor was executed by testator on November 26, 1934.
The evidence as to the frequency of testator's excessive indulgence in the use of intoxicants is conflicting. Nearly all the witnesses agree, however, that when sober he was a man of more than average intelligence. Evidence produced by contestant tended to prove that he was rarely if ever sober for a number of months preceding the execution of the last will. The father of contestant testified that he visited testator on November 25, 1934, and found him in bed drunk. There is evidence also that liquor was furnished him at times by proponents. On the other hand, witnesses for proponents testified that testator was frequently sober, and that his mentality at such times was unimpaired. The circumstances preceding and attending the execution of the will are undisputed. On November 23, 1934, testator, accompanied by W L. James, went to the office of a reputable physician in Lawton for an examination as to his mental and physical capacity to transact business. This physician, who had known testator previously, testified that he was sober, of normal mind, and in his opinion capable of transacting any ordinary business. To the specific question whether testator was capable of making a will, he answered: "I would say he acted like he knew what he wanted to do". At testator's request, the physician gave him a certificate stating that testator was mentally sound and fully capable of...
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