In re Estate of Randall

• Decision Date: 07 July 1939
• Docket Number: 6644
• Citation: 60 Idaho 419,93 P.2d 1
• Parties: In the Matter of the Estate of MARY ELIZABETH RANDALL, Deceased
• Court: Idaho Supreme Court

93 P.2d 1

60 Idaho 419

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

No. 6644

Supreme Court of Idaho

July 7, 1939

WILLS-NEW TRIAL-DISCRETION OF TRIAL COURT-REVIEW.

1. If it appears that trial court has abused its discretion in granting a new trial, whether it is first or second, the Supreme Court will reverse the judgment.

2. Where will leaving all of testatrix' property to two of her children was contested by other children on ground that will was procured by fraud and undue influence and two juries had found for contestants, action of trial court in granting proponents a new trial was an abuse of discretion, in view of evidence.

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Gillies D. Hodge, Judge.

Proceeding for probate of a will and contest of such will. Judgment for contestants. From an order granting proponents a new trial contestants appeal. Reversed and remanded with directions.

Order reversed, vacated and set aside. Costs awarded to appellants. Petition for rehearing denied.

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

When it appears among the circumstances proved that one who unduly profits by a will as a beneficiary thereunder has (1) sustained a confidential relation to the testator and (2) has actively participated in procuring the execution of the will a prima facie case against the will is made by this combination of circumstances and unless these circumstances are satisfactorily explained to the jury the will should be disallowed. (Zeigler v. Coffin, 219 Ala. 586, 123 So. 22, 63 A. L. R. 942; Harvey v. Sullens, 46 Mo. 147, 2 Am. Rep. 491, 494; Bancroft v. Otis, 91 Ala. 279, 8 So. 286, 24 Am. St. 904; 68 Corpus Juris, Wills, p. 758, par. 451.)

Murray Estes and J. M. O'Donnell, for Respondents.

The trial judge, after having seen the witnesses on the stand, observed their demeanor, and heard them testify, should, on proper application, grant a new trial regardless of a conflict in the evidence if he concludes that there has been a miscarriage of justice by the verdict of the jury. ( Bernier v. Anderson, 8 Idaho 675, 70 P. 1027; Jones v. Campbell, 11 Idaho 752, 84 P. 510; Buckle v. McConaghy, 12 Idaho 733, 88 P. 100; Wolfe v. Ridley, 17 Idaho 173, 104 P. 1014, 20 Ann. Cas. 39; Say v. Hodgin, 20 Idaho 64, 116 P. 410; Cox v. Cox, 22 Idaho 692, 127 P. 679.)

The trial court, if convinced of the fact there was a miscarriage of justice, should grant as many retrials as become necessary to secure justice in any case at bar. (Petroff v. Nunes, 136 Cal.App. 416, 29 P.2d 293; Davis v. Central States Fire Ins. Co., 121 Kan. 69, 245 P. 1062; Gross Coal Co. v. City of Milwaukee, 170 Wis. 467, 175 N.W. 793; Credit Clearing House Adj. Corp. v. Stanfield, 42 Ga.App. 562, 156 S.E. 708.)

HOLDEN, J. Ailshie, C. J., Budge and Givens, JJ., concur. Morgan, J., did not sit with the court at the hearing, nor participate in the decision.

OPINION

HOLDEN, J.

--October 24, 1929, Mary Elizabeth Randall made a purported last will and testament by which she bequeathed and devised all her property (1420 acres, worth $ 60 an acre) to two daughters, Mattie L. Randall and Eva O. Randall, nominating such daughters executrices to execute the instrument. October 29, 1934, she died in Latah county leaving surviving her the following named sons and daughters: Mattie L. Randall, Eva O. Randall, Ora Randall Stevens (now Johnson), Almeron E. Randall, Arthur W. Randall, and Barnard Randall, Wayne Randall and Dean Randall, children of Alfred B. Randall, a deceased son.

December 10, 1934, Mattie L. and Eva O. Randall filed a petition in the probate court of Latah county praying the instrument be admitted to probate. Thereafter appellants filed written objections to the admission of the instrument on the ground it was procured by fraud and undue influence. The probate court admitted the will to probate and contestants thereupon appealed to the district court, where a trial de novo was had before Hon. Miles S. Johnson, presiding judge. At the conclusion of the evidence on behalf of contestants proponents moved for a nonsuit which motion was denied. Thereupon 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, which motions were denied. The court thereupon instructed the jury and, after deliberating on the matter, the jury returned an unanimous verdict in favor of contestants. Proponents then moved judgment be entered in their favor notwithstanding the verdict, which motion was granted. Thereupon contestants appealed to this court ( Estate of Randall, 58 Idaho 143, 70 P.2d 389). On that appeal this court said:

"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."

"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 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 notwithstanding the verdict, the trial court would undoubtedly have granted the motion. In this state of the case we have concluded to remand the case with directions to grant a new trial."

. . . .

"We have refrained from quoting or analyzing the evidence in this case for the reason that we are ordering a new trial and do not want any recital or comment of ours to be taken as indicating any view of ours as to the materiality, weight, or probative value of any fact or circumstance adduced in evidence."

May 17, 1938, the cause was again tried. Upon the second trial Hon. Gillies D. Hodge presided. At the conclusion of the submission of evidence proponents moved the court to instruct the jury to return a verdict in their favor, which motion the court denied. May 21, 1938, the jury returned an unanimous verdict in favor of contestants. Judgment was then entered reversing the judgment of the probate court and adjudging the will was procured by fraud and undue influence. July 15, 1938, proponents moved for a new trial upon numerous grounds, among others, that the evidence was insufficient to justify the verdict. August 17, 1938, the court granted a new trial upon the ground "that there has been a miscarriage of justice by the verdict of the jury, and that the same is not supported by a fair preponderance of the evidence."

October 1, 1938, contestants appealed to this court.

While proponents moved for a new trial upon numerous grounds, the court granted the motion upon the ground there had been a miscarriage of justice and that the verdict of the jury was not supported by a fair preponderance of evidence as above stated. And, it may be added, neither proponents nor contestants claim there was any misconduct on the part of the jury, or that error was committed during the course of the trial.

As hereinbefore pointed out, upon the first trial of this cause in the district court, the jury returned a verdict in favor of contestants, whereupon proponents moved judgment be entered in their favor notwithstanding the verdict, and the motion was granted. Upon appeal, however, this court granted a new trial. The cause having been retried and the second jury having likewise returned a verdict in favor of contestants, and the trial court having granted proponents a new trial, and contestants having again appealed, we are confronted with the question as to whether this (a reviewing) court, may, if it reaches the conclusion (after an examination of all the facts and circumstances shown by the record) the trial court abused its discretion in ordering a new trial (where, as here, two juries have returned similar verdicts), vacate such order.

Contestants contend: "Where a case has been before the Supreme Court and the Court has determined all of the questions of law involved in the case holding it is a case for the jury and has remanded the case for resubmission to a jury for its verdict and the jury upon the same and additional evidence returns a verdict, it is an abuse of discretion for the trial judge in the absence of any errors of law or misconduct of the jury occurring at the trial to set aside that verdict," citing Monarch G. & S. M. Co. v McLaughlin, 1 Idaho 650; Lowe v. Long, 5 Idaho 122, 47 P. 93; Ross v. Swearingen, 39 Idaho 35, 225 P. 1021; Applebaum v. Stanton, 47 Idaho 395, 276 P. 47; Rayborn v. Salmon River Canal Co., Ltd., 50 Idaho 297, 295 P. 1001. We have examined Lowe v. Long, Ross v. Swearingen, Applebaum v. Stanton, and Rayborn v. Salmon River Canal Co., Ltd., supra. The last-named cases do not appear to be in point on the question as to whether it is an abuse of discretion to grant a new trial for a second time after two...