In re Frandsen's Will

• Decision Date: 06 August 1917
• Docket Number: 2944
• Citation: 167 P. 362,50 Utah 156
• Parties: In RE FRANDSEN'S WILL
• Court: Utah Supreme Court

167 P. 362

50 Utah 156

In RE FRANDSEN'S WILL

No. 2944

Supreme Court of Utah

August 6, 1917

Appeal from District Court, Seventh District; Hon. A. H Christensen, Judge.

In the matter of the probate of the wills of Karen Frandsen Deceased.

Decree refusing probate. The proponent of two of the wills appeals.

REVERSED and REMANDED, with directions.

Stewart Stewart & Alexander for appellant.

S. A. King and J. W. Cherry for respondent.

FRICK, C. J. McCARTY, CORFMAN, THURMAN, and GIDEON, JJ., concur.

OPINION

FRICK, C. J.

This is a proceeding involving three different and independent wills. One Karen Frandsen, a resident of Carbon County, Utah of the age of seventy-seven years, died on the 4th day of March, 1915, leaving surviving her five sons and one daughter, all of whom were of lawful age. She also left surviving her eight grandchildren, the children of a deceased son, all of whom, except one, were minors; and she also left surviving her another grandchild who was the daughter of another deceased son. The father of the eight children mentioned died after the several wills hereinafter mentioned were executed, but the father of the last-mentioned grandchild had died before their execution. Under the provisions of our statute it is important to keep in mind the facts last above stated. On the 17th day of March, 1915, one of the sons presented a writing for probate which purported to be the last will and testament of the deceased. The alleged will was dated July 5, 1911, and a copy was attached to the application. The daughter of the deceased filed a protest to the allowance of that will to probate upon the grounds that the same was not executed as provided by our statute, and that it was not the last will and testament of the deceased. In connection with her protest she also presented what purported to be the last will and testament of the deceased dated July 27, 1912, or nearly a year after the first will presented for probate was dated. A copy of that alleged will was attached to her application. One Hannah Jorgensen, the daughter of the son of the deceased who died before any one of the wills was executed, also filed a protest to the allowance of either one of the two alleged wills to probate upon the ground that she is a grandchild of the deceased, and that she was not mentioned in said wills, and hence, in so far as said wills affect her interest in the estate of the deceased, they are of no effect under the provisions of Comp. Laws 1907, sections 2761, 2762. She, however, also assailed both of said proposed wills upon the further ground that at the time the same were executed the testatrix was insane and mentally incapacitated from making a valid will. Four of the surviving sons also filed a protest against the probate of the will of June 27, 1912, presented by the daughter of the deceased, upon the ground that the testatrix at said time was insane and mentally incapacitated, and that that will was obtained or was the product of fraud and undue influence practiced on the deceased by the daughter aforesaid. After all of the protests had been filed, and after the court had indicated that at the times the will dated July 5, 1911, and the one dated July 27, 1912, were executed the testatrix did not possess sufficient mental capacity to make a will, the daughter of the deceased presented another will dated July 19; 1900, and asked that the same be admitted to probate as a lost will, and upon the further ground that the same had been fraudulently destroyed. After a hearing of all the protests the court found against all of the wills, and refused to admit any of them to probate. The material findings of the court are as follows:

"That the purported will of said deceased tendered and offered for probate by Anna Frandsen Horr, alleged to have been executed on the 19th day of July, 1900, was not in existence at the time of the death of said deceased, and was not fraudulently destroyed during the lifetime of said deceased, and was not surreptitiously, fraudulently, or without the knowledge of said deceased, or with the view of defeating the intentions and purposes of said deceased or at all destroyed by George G. Frandsen, a son of said deceased, or by any other person, and said will was not in the possession of the said George G. Frandsen, at any time. That at the time of the purported execution of the will offered for probate by George G. Frandsen, to wit, the 5th day of July, 1911, and for a long time prior thereto, the said Karen Frandsen was not of sound mind or memory, but that her mind was weak, debilitated, and deranged to such an extent that she was incapacitated from executing or understanding a will. That at the time of the purported execution of the will offered for probate by Anna Frandsen Horr, to wit, the 27th day of June, 1912, and for a long time prior thereto, the said Karen Frandsen was not of sound mind or memory, but that her mind was weak, debilitated, and deranged to such an extent that she was incapacitated from making, executing, or understanding a will."

The court also found that the will of June 27, 1912, was obtained by undue influence practiced on the testatrix by the proponent of that will, but that finding, for reasons hereinafter appearing, is of no controlling influence.

The proponent of the will of June 27, 1912, assails the court's findings, and insists that the evidence is insufficient to justify a finding that the testatrix was insane or mentally incapacitated at the times aforesaid, and she also assails the findings respecting the issue of undue influence. We have carefully read the evidence produced by all the interested parties, and while the evidence respecting the mental capacity of the deceased is not as convincing, when viewed in the light of all the circumstances disclosed by the evidence, as it might be, yet there is some substantial evidence in support of the court's findings on that issue. In view, therefore, that this is a law case and that we are bound by the findings, if supported by some substantial evidence, we may not interfere with those findings. The evidence upon the issue of undue influence is weak and unsatisfactory, yet, as before stated, that finding is not of controlling influence, and hence needs no further consideration.

We shall consider only such facts as have a controlling influence upon the result, and therefore shall eliminate everything else from consideration.

In view of the court's findings, therefore, both the proposed will of July 5, 1911, and of June 27, 1912, must fail. This leaves only the proposed will of July 19, 1900, to be considered. The probate of that will is controlled by Comp. Laws 1907, section 3810, which reads as follows:

"No will shall be proved as a lost or destroyed will, unless the same is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently destroyed in the lifetime of the testator, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses."

As appears from the court's findings, the will of July 19, 1900, was also disallowed. The question we must determine, therefore, is whether the court's findings respecting that will are supported by evidence, and whether its conclusions of law with respect thereto are sound. The facts which must control upon that question are not in dispute. In substance they are that on July 19, 1900, the testatrix, then of sound and disposing mind and memory, duly executed the will last proposed for probate, and, pursuant to the provisions of Comp. Laws 1907, section 2740, deposited the same with the county clerk of Carbon County; that thereafter, and before any of the other proposed wills were executed, the testatrix, at least once, in the presence of one witness, saw the will in the county clerk's office, and she then, and at other times, according to the evidence, expressed herself as being satisfied with its provisions; that the will was recorded in a book in the county clerk's office by a young lady who held some official position in said office; that the will was last seen in the county clerk's office by the witness who testified on the hearing, in March, 1912, and its contents were then examined by them. One of the witnesses was an attorney who examined the will for the purpose of preparing the proposed will dated June 27, 1912, and which will he prepared, and the other witness was the husband of the proponent of the will of 1900. The will as recorded in the clerk's office was also produced in court, but the court refused to admit it in evidence. As we have seen, the court found that on July 5, 1911, and on June 27, 1912, the testatrix "was not of sound mind or memory," and that she then was "incapacitated from making, executing, or understanding a will." We thus have a case where the will in question was shown to have existed some eight months after the testatrix had become insane, as found and declared by the court, which finding and declaration, as we have seen, is binding upon us and upon the parties in interest.

The question therefore arises whether the court's finding that the will "was not in existence at the time of the death of said deceased" is supported by the evidence. The evidence that the will was in existence at least eight months after July 5, 1911, when the testatrix was found and declared to be insane, is not disputed. Nor is there any dispute regarding the fact that at, and for some time before the trial the will could not be found in the clerk's office or elsewhere. No one testified who saw it after March, 1912, and no one seemed to know where it was. In other words, the evidence discloses that the will could not be found. The court, therefore, found that it did not...