In re Estate of Randall

• Citation: 70 P.2d 389,58 Idaho 143
• Decision Date: 22 July 1937
• Docket Number: 6424
• Parties: In the Matter of the Estate of MARY ELIZABETH RANDALL, Deceased
• Court: United States State Supreme Court of Idaho

70 P.2d 389

58 Idaho 143

In the Matter of the Estate of MARY ELIZABETH RANDALL, Deceased

No. 6424

Supreme Court of Idaho

July 22, 1937

WILLS - CONTEST - EVIDENCE-FRAUD AND UNDUE INFLUENCE-QUESTIONS FOR JURY - JUDGMENT NOTWITHSTANDING VERDICT - NEW TRIAL.

1. Whether will was procured by fraud and undue influence was for jury, where facts might lead different minds to reach different conclusions on issues of fraud and undue influence.

2. A judgment for proponents of will notwithstanding a verdict for contestants was error, where facts might lead different minds to reach different conclusions on issues of fraud and undue influence.

3. Where facts might lead different minds to reach different conclusions, findings of triers of fact will prevail, however meager the evidence, if evidence is of a substantial nature.

4. A will contest, in which judgment for contestants notwithstanding verdict for proponents was improperly entered, would be remanded for new trial, where trial court would have ordered new trial had proponents moved for new trial instead of for judgment notwithstanding verdict.

5. Will contestants held not entitled to complain of the exclusion of exhibits where jury returned a verdict in their favor.

6. In will contest, will of testatrix' deceased husband was admissible in support of contestants' contention that testatrix' will had been copied by one of the proponents from husband's will, in view of evidence that such proponent had typed testatrix' will and that both proponents had discussed the will with testatrix prior to preparation and execution of will.

7. In will contest, rejection of petition for distribution of estate of testatrix' deceased husband, and inventory and appraisement of estate of testatrix' deceased husband and final account in estate of testatrix' deceased husband, was not error where no good reason appeared for their introduction.

8. In will contest, exclusion of stenographic report of testimony of one of the proponents given on trial of contest in probate court was not error, where report was not offered in evidence.

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Miles S. Johnson, Presiding Judge.

Proceeding to probate a will and contest thereof. Judgment for proponents. Reversed and new trial ordered.

Judgment reversed and a new trial ordered. Costs awarded to appellants.

A. H Oversmith and W. F. McNaughton, for Appellants.

Fraud and undue influence in this class of cases is seldom susceptible of direct proof like a physical fact but must be built up by circumstances which alone would be insufficient but in combination become sufficient; hence a wide latitude is granted the contestants in the introduction of evidence. ( Blackman v. Edsall, 17 Colo. App. 429, 68 P. 790; In re Gallo's Estate, 61 Cal.App. 163, 214 P. 496.)

In will contests it is peculiarly within the province of the jury to weigh the effect of circumstances proved. (Blackman v. Edsall, supra; Sioux City & Pacific R. Co. v. Stout, 17 Wall. (84 U.S.) 657, 21 L.Ed. 745.)

A. L. Morgan, for Respondent.

Undue influence such as will justify setting aside a will must be such as to overcome the free volition or conscious judgment of the testator, and to substitute the wicked purposes of another instead, and must be the efficient cause, without which the obnoxious will would not have been made. ( Turner v. Gumbert, 19 Idaho 339, 114 P. 33; In re Knutson's Will, 149 Ore. 467, 41 P.2d 793; In re Easton's Estate, 140 Cal.App. 367, 35 P.2d 614; Peace v. Peace, 149 Okla. 123, 299 P. 451.)

Where there is no evidence to support contestants' attack judgment notwithstanding the verdict is proper. (In re Grant's Estate, 8 Cal.App.2d 232, 47 P.2d 508; In re Smethurst's Estate, 15 Cal.App.2d 322, 59 P.2d 830; In re Bryan's Estate, 82 Utah 390, 25 P.2d 602; In re Finkler's Estate, 3 Cal. (2d) 584, 46 P.2d 149; In re Donovan's Estate, 114 Cal.App. 228, 299 P. 816; Munday v. Knox, 321 Mo. 168, 9 S.W.2d 960.)

AILSHIE, J. Budge and Givens, JJ., concur. Morgan, C. J. did not sit at the hearing or participate in the decision in this case.

OPINION

AILSHIE, J.

--This is a proceeding contesting the probate of the will of Mary Elizabeth Randall who died in Latah county October 20, 1934. She left surviving her: Daughters, Mattie L. Randall and Eva O. Randall, proponents of the will in question; a daughter, Ora Randall Stevens (now Johnson); sons, Almeron E. Randall and Arthur W. Randall; and Barnard Randall, Wayne Randall and Deane Randall (children of a deceased son, Alfred B. Randall), contestants of the will. The contest is predicated on the ground of fraud and undue influence in the procurement and execution of the will. The probate court of Latah county admitted the will to probate and the contestants thereupon appealed to the district court, where a trial de novo was had. On the conclusion of the evidence on behalf of the contestants, the proponents moved for a nonsuit which motion was denied. Thereupon the proponents introduced evidence in opposition to the contest and after the case was rested on both sides, proponents again moved to dismiss the appeal, and for judgment of nonsuit and also moved for an instructed verdict, all of which motions were denied. The court thereupon instructed the jury and, after deliberating on the matter, the jury returned a unanimous verdict in favor of the contestants. Proponents then made a motion that judgment be entered in their favor notwithstanding the verdict, which motion was granted and judgment was entered as follows:

"IT IS HEREBY ORDERED, ADJUDGED AND DECREED and this does order, adjudge and decree that said motion for judgment notwithstanding the verdict is granted; that the appeal of said contestants and the contest is hereby dismissed; that the judgment of the probate court admitting said Will to probate is hereby affirmed, and the said probate court is hereby ordered to dismiss said appeal in the probate court."

Contestants thereupon appealed to this court.

The principal assignment of error relied on is made against the action of the trial court in entering judgment notwithstanding the verdict of the jury. After a very thorough examination of the evidence, we are satisfied the court correctly denied the motion for nonsuit, and the motion for an instructed verdict. On the other hand, we are equally well convinced that the court erred in granting judgment notwithstanding the verdict. The facts and circumstances submitted to the jury, as disclosed by this record, are such as might very well lead different minds to reaching different conclusions upon the issue presented; and where such is the case, however meager the evidence, if it is of a substantial nature and character, the findings of the triers of fact should prevail. (McKissick v. Oregon Short Line Ry. Co., 13 Idaho 195, 89 P. 629; Fleenor v. Oregon Short Line R. Co., 16 Idaho 781, 803, 102 P. 897; Denton v. City of Twin Falls, 54 Idaho 35, 43, 28 P.2d 202; Call v. City of Burley, 57 Idaho 58, 62 P.2d 101, 105.)

In view of our conclusion, that the judgment notwithstanding the verdict was improperly entered, we are confronted with the question as to whether we shall direct a judgment to be entered upon the verdict or order a new trial. It is apparent, of course, that the trial court finally concluded and that there was no substantial evidence to sustain the verdict and that he should have directed a verdict in the first instance. It also follows that, had proponents moved for a new trial instead of for a judgment...