In re Duffill's Estate

• Decision Date: 02 November 1936
• Docket Number: 3144.
• Citation: 61 P.2d 985,57 Nev. 224
• Parties: In re DUFFILL'S ESTATE, DUFFILL v. DUFFILL et al.
• Court: Nevada Supreme Court

61 P.2d 985

57 Nev. 224

In re DUFFILL'S ESTATE, DUFFILL v. DUFFILL et al.

No. 3144.

Supreme Court of Nevada

November 2, 1936

Appeal from District Court, Clark County; Wm. E. Orr, Judge.

Proceeding by Martha J. Duffill to probate an alleged lost will of Albert Duffill, deceased, opposed by Mary Wood Duffill and another. From an adverse judgment and from an order denying new trial, Martha J. Duffill appeals.

Affirmed.

Roger Foley, of Las Vegas, and O. H. Speciale, of San Jose, Cal for appellant.

Musick & Burrell, Vance Booker, Howard Burrell, and George Martinson, all of Los Angeles, Cal., and C. D. Breeze, of Las Vegas, for respondent Mary Wood Duffill.

Esmond Schapiro, of San Francisco, Cal., and Leo A. McNamee and Frank McNamee, Jr., both of Las Vegas, for respondent Phyllis Alberta Duffill.

COLEMAN Justice.

Appellant the mother of decedent, instituted proceedings to probate a lost will, alleged to have been executed February 19, 1932 wherein decedent left $200,000 to her and the balance of his estate to his widow and daughter. Judgment was rendered against her, from which, and an order denying a new trial, an appeal has been taken.

At the conclusion of the taking of the testimony and of the oral arguments of counsel, the court delivered a clear-cut concise statement of his reasons for concluding that no will had been executed by the deceased as contended by appellant, and, if there had been, that it was revoked prior to the death of deceased. Formal findings of facts were thereafter made by the court, in accordance with its oral decision.

Our statute relative to the establishment of a lost or destroyed will reads: "No will shall be allowed to be proved as a lost or destroyed will unless the same shall be proved to have been in existence at the time of the death of the person whose will it is claimed to be, or be shown to have been fraudulently destroyed in the lifetime of such person, nor unless its provisions shall be clearly and distinctly proved by at least two credible witnesses." Section 9624, N.C.L.

Whatever might have been our conclusion had we presided at the hearing in the lower court, we are satisfied that the conclusion reached to the effect that no such will, as contended for, was ever executed, must be sustained. We would not be justified in reversing the judgment and order appealed from unless it clearly appears that the wrong conclusion was reached. Willis v. Brotherhood, 55 Nev. 448, 38 P.2d 974.

Proponent relies upon the evidence of witnesses Biffle, Blanco, Montt, and Koebig to show that the terms of the statute were complied with. Other evidence was introduced tending to corroborate these witnesses.

We will test the testimony of the persons named, to ascertain just what each bore witness to.

Biffle, who signed as a witness, testified that he did not read any part of the will except the heading, and that his only knowledge of its contents was based upon the statement of deceased. Clearly, his testimony does not pretend to show the provisions of the will.

The witness Venturo Blanco testified that when he went to the home of Dr. Michelena in 1932 he found decedent, whom he had known for about three years, in bed, and that as he went into the bedroom, "I said, hello, Albert. If you think you are going to die don't forget me in your will. Jokingly of course. He said, 'Don't forget, I am an attorney, my will is already made.' He asked me to hand him a brief case and he pulled out a bunch of papers and he handed it to me and I read it." He then testified to the provisions of the will.

The witness Montt, a Hollywood actress, testified that about the early part of December, 1932, she met decedent at Dr. Michelena's house in Los Angeles; that he was sick with a severe attack of rheumatism; that he was in the living room and wanted to go into) the bedroom and lie down; that she got his crutches, and with the help of a maid they got him to the bedroom. "The doctor told me where the medicine was and I gave him the medicine; then he said to me, 'It won't be very long now, I want to have as good a time as I can.' I said, 'Don't talk that way.' I tried to change the conversation because he was depressed. He said 'I will prove it to you--I am prepared for it.' He asked me to go to the dresser and bring him the brief case. I didn't want to because I did want to change the conversation but he insisted, so I brought a brown leather case and he opened it and took a paper from inside, was about two pages, written in typewriter, in envelope, with the blue paper in the back, and he asked me to read it. I read it and he says it was his will."

This witness then testified to its provisions, stating them to be as did the witness Blanco. She also testified that decedent stated to her at the time: "I am doing this to protect my mother because I have meant everything to her and she means everything to me."

She was asked if she saw the name of deceased, to which she replied: "Yes, he said it was his signature, and there were two other signatures, beside it," and that decedent's signature was on the side.

She further testified:

"Q. What was the occasion for your going there this day? A. I used to go there almost every day.

"Q. Dr. Michelena was not there? A. That is why I went, to help take care of the sick.

"Q. Were you a nurse? A. No, I was not a nurse, just a friend.

"Q. Of Albert Duffill? A. Yes.

"Q. You went over there to take care of him as a casual acquaintance? A. Yes."

Dr Koebig testified that the occasion of his meeting decedent was in consultation with Dr. Michelena. He testified to the terms of the will and that its provisions were as stated by Blanco and Montt. He testified that the decedent showed him his will, the occasion therefor being that there was to be an operation on the knee of decedent and he stated to decedent that he should have his affairs in shape, and that decedent replied: "'I am an attorney, and you know I take care of those things.' *** He then picked up a blue...