In re Estate of Brown

• Citation: 61 Idaho 320,101 P.2d 11
• Decision Date: 29 March 1940
• Docket Number: 6740
• Parties: In the Matter of the Estate of CATHERINE A. BROWN, Deceased. CORA I. CARLETON, CASS DEWITT, ALPHA ARCH, MARY L. SMALL and the Seven Children of MARTHA ARNO, Deceased (Contestants), Respondents, v. CHESTER E. PLUMMER and JESSE K. ROBINSON (Proponents), Appellants
• Court: Idaho Supreme Court

101 P.2d 11

61 Idaho 320

In the Matter of the Estate of CATHERINE A. BROWN, Deceased. CORA I. CARLETON, CASS DEWITT, ALPHA ARCH, MARY L. SMALL and the Seven Children of MARTHA ARNO, Deceased (Contestants), Respondents, v. CHESTER E. PLUMMER and JESSE K. ROBINSON (Proponents), Appellants

No. 6740

Supreme Court of Idaho

March 29, 1940

WILLS-UNDUE INFLUENCE-TESTAMENTARY CAPACITY-EVIDENCE-QUESTIONS OF FACT-REVIEW.

1. Where an appeal is taken from two or more orders and only one bond is given which is insufficient to satisfy the requirements of both appeals or which does not specify to which appeal it is applicable, the defect is waived unless an exception is taken within 20 days. (I. C. A., sec. 11-203.)

2. Where cash deposit of $100 was placed with clerk of district court on appeal from judgment of probate court admitting will to probate, District Court did not commit error in refusing to dismiss appeal on ground that four separate appeals had been taken but only one undertaking furnished, where notice in writing pointing out defect or insufficiency of cash bond was not served within 20 days after posting of the cash bond since the insufficiency of, or defect in, the undertaking was waived. (I. C. A., secs. 11-203, 11-405, 15-1509.)

3. Where evidence supports trial court's findings that deceased lacked testamentary capacity when she attempted to make alleged will, questions regarding sufficiency of evidence to sustain finding on issue of undue influence or alleged error in respect to such issue need not be considered.

4. Evidence sustained finding that deceased's attempt to make will, when she lacked sufficient testamentary capacity was procured by undue influence.

5. Evidence sustained finding that deceased did not have testamentary capacity at time she attempted to execute will.

6. In will contest, the mental state of deceased on day she executed purported will was a question of fact for trial court sitting without jury.

7. The rule that a finding or judgment will not be disturbed on appeal where there is real and substantial conflict in the evidence on the issue of fact involved applies to litigation over validity of a will.

8. Where there was direct conflict in evidence regarding whether deceased had testamentary capacity at time she executed will judgment of court sitting without jury that deceased was not competent to make will was affirmed.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Honorable A. O. Sutton, Judge.

Proceeding to probate a will and contest thereof. Judgment for contestants. Affirmed.

Judgment affirmed. Costs awarded to respondents.

James S. Bogart, Walter Griffiths and Caldwell and Troxell, for Appellants.

A testatrix has sufficient mental capacity to execute a valid last will and testament when she has sufficient mind:

FIRST To comprehend intelligently the nature and effect of the will she is making.

SECOND: To comprehend intelligently the estate she was undertaking to dispose of.

THIRD: To comprehend intelligently the relation she held to the various persons who might naturally expect to become the objects of her bounty. (Schwarz v. Taeger, 44 Idaho 625, 258 P. 1082; In re Sixkiller, 168 Okla. 302, 32 P.2d 936; In re Sexton's Estate, 199 Cal. 759, 251 P. 778.)

In the determination of testamentary capacity, proof of mental derangement or insanity or extreme physical weakness or disability, in the medical sense is not sufficient; it is necessary that a complete mental degeneration be shown, such as denotes an utter incapacity to understand what the law prescribes as essential to making a valid will. (In re Shay's Estate, 196 Cal. 355, 237 P. 1079; 1 Alexander on Wills, at pages 458 and 459; Estate of McGinn, 3 Coffee, 26 (Cal. Sup.); In re Jones Estate, 117 Cal.App. 163, 4 P.2d 251.)

A will which excludes the heirs at law of the testatrix from her bounty will not be considered "unnatural" if there is evidence showing a relationship to the devisees in the will which explains the dispositions to them. (Estate of Willits, 175 Cal. 173, 165 P. 537; Estate of Loveland, 162 Cal. 595, 123 P. 801.)

In order to establish the presence of undue influence, there must be evidence of pressure directly upon the testamentary act (i. e., at the very moment of execution) and it is not sufficient to merely show an interest, motive or opportunity by the beneficiary under the will. (Gwin v. Gwin, 5 Idaho 271, 48 P. 295, annotation in 66 A. L. R. 254; In re Holloway Estate, 195 Cal. 711, 235 P. 1012; In re Hinde, 200 Cal. 710, 254 P. 561; 1 Bancroft's Probate Practice, p. 382; Estate of Kilborn, 162 Cal. 4, 120 P. 762.)

The claim of undue influence is disproved where it appears that the testatrix executed the instrument out of the presence of the beneficiaries. (Estate of De Soberanes, 182 Cal. 525, 189 P. 103.)

There is no inference of undue influence from the fact that a beneficiary suggested the execution of the will. (Estate of Motz, 136 Cal. 558, 69 P. 294; Gwin v. Gwin, supra.)

Scatterday & Scatterday, F. W. Jarvis and George Donart, for Respondents.

The testatrix lacked sufficient mental capacity to execute a valid last will and testament if she did not have sufficient mind: First, to comprehend intelligently the nature and effect of the will she was making; second, to comprehend intelligently the estate she was undertaking to dispose of; third, to comprehend intelligently the relation she held to the various persons who might naturally expect to become the objects of her bounty. (Schwarz v. Taeger, 44 Idaho 625, 258 P. 1082; In re Sixkiller, 168 Okla. 302, 32 P.2d 936; In re Sexton's Estate, 199 Cal. 759, 251 P. 778; In re Cashion's Estate, 27 Cal.App. (2d) 689, 81 P.2d 628.)

If the testatrix lacks any one of the mental requirements specified in Proposition I, testamentary capacity does not exist. ( Lowe v. Talbert, 93 Ind.App. 384, 176 N.E. 36, 177 N.E. 339; In re Alexander's Estate, 111 Cal.App. 1, 295 P. 53; In re Ivey's Estate, 94 Cal.App. 576, 271 P. 559.)

BUDGE, J. Morgan and Holden, JJ., concur, Ailshie, C. J., and Givens, J., concur in the conclusion.

OPINION

BUDGE, J.

A petition for an order admitting to probate an instrument purporting to be the last will and testament of Catherine A. Brown, deceased, was filed December 23, 1936, in the probate court of Canyon county by appellants. January 21, 1937, Cora I. Carleton and others, heirs at law of Catherine A. Brown, respondents herein, filed a petition contesting the probate of said will, setting forth that the instrument filed as her last will and testament was not the will of said Catherine A. Brown, for the reason that at the date of its purported execution the testatrix was mentally incompetent to execute a will; and that the execution of said purported will was obtained by undue influence exerted upon the testatrix by the beneficiaries thereunder.

Upon trial of the issues, before the probate court, judgment was entered upholding the validity of the will and directing the entry of an order admitting the will to probate, and on the same day an order was entered, embodying in the one instrument, an order admitting the will to probate and an order appointing executor. A further order was entered directing delivery of the property to the executor.

An appeal was taken August 10, 1937, by contestants and respondents herein, the notice of appeal reciting it was taken from the judgment made and entered August 2, 1937, admitting the will to probate, and from the order made and entered on said date admitting the will to probate, and from the order made and entered appointing Chester E. Plummer executor of the last will and testament of Catherine A. Brown, deceased, and also from the order directing the special administrator to deliver to Chester E. Plummer, the executor, all property belonging to said estate.

A motion was then filed by proponents of the will to dismiss the appeal and the court on May 9, 1938, entered its order denying the motion. The cause was thereafter tried in the district court sitting without a jury. Among other things, the court found that the said will was not the will of the deceased for the reason that at the time of its execution decedent was not competent to make a will, was not of sound and disposing mind, and further found that she was induced to make the purported will as a result of undue influence by Chester E. Plummer and Emma Plummer acting in connection with their attorney, James S. Bogart; and that the execution of said will was not her free and voluntary act, and that had she been free from undue influence, she would not have signed the purported will. Based upon such findings, the court entered conclusions of law in like tenor and entered judgment vacating the order admitting the will to probate and all orders of the probate court based thereon, and further adjudged that the instrument be rejected and denied probate and the petition for probate be dismissed. From the judgment so entered, this appeal was taken

Appellants by their first four specifications of error urge that the district court was in error in refusing to dismiss the appeal or appeals taken by respondents to the district court, such motion having been based upon the contention that four separate appeals were actually taken and only one undertaking furnished, that being a cash deposit in the amount of $ 100 placed with the clerk of the court.

It would seem unnecessary to determine whether one or more appeals were taken. A cash deposit with the clerk in the amount specified for an appeal was posted in lieu of an undertaking as is provided for by section 11-405, I. C. A.:

"The undertaking on appeal must be in writing and must be executed on the part of the appellant...