In re Free's Estate

• Decision Date: 07 December 1937
• Docket Number: 27649.
• Citation: 75 P.2d 476,181 Okla. 564,1937 OK 708
• Parties: In re FREE'S ESTATE. v. FREE et al. MILES et al.
• Court: Oklahoma Supreme Court

75 P.2d 476

181 Okla. 564, 1937 OK 708

In re FREE'S ESTATE.

MILES et al. v. FREE et al.

No. 27649.

Supreme Court of Oklahoma

December 7, 1937

Rehearing Denied Jan. 25, 1938.

Syllabus by the Court.

1. In a will contest case, where due execution and attestation are established, a presumption of testamentary capacity arises and the burden of proving unsoundness of mind of the testator is upon the contestant.

2. The burden of proof in the trial of a contest of the probate of a will is first upon the proponents of the will to make a prima facie showing entitling the will to probate. The burden then shifts to the contestants to establish the issues presented by their contest.

3. A substantial compliance with section 1546, O.S.1931, 84 Okl.St.Ann. § 55, relating to subscribing, publishing, and attesting a will is sufficient to satisfy the provisions thereof.

4. The asking of leading questions of a witness may be permitted by a trial court and is within the sound judicial discretion thereof; and unless the record shows an abuse of such discretion resulting in prejudice to the constitutional or statutory rights of the party complaining thereof, the same constitutes no ground for reversal.

5. An ex parte affidavit is not admissible in evidence as to controverted facts material to the issues.

Appeal from District Court, Osage County; Jesse J. Worten, Judge.

Proceeding in the matter of the estate of Anna Miles Free, Osage allottee No. 508, deceased, wherein N. R. Free and John R Pearson, named as administrator with will annexed of the estate of Anna Miles Free, full-blood Osage allottee No. 508 deceased, sought to have the will admitted to probate opposed by Leo Miles, full-blood Osage allottee No. 511, and another. From a judgment in favor of the proponents, the contestants appeal.

Affirmed.

Pawhuska, for plaintiffs in error.

McCoy, Craig & Pearson, of Pawhuska, for defendants in error.

GIBSON Justice.

This is a proceeding to probate a will. It originated in the county court of Osage county where the will was admitted to probate, and from there appealed to the district court by the protestants where the judgment of the county court was affirmed, and this appeal resulted. In compliance with the statute, section 1101, O.S.1931 (58 Okl.St.Ann. § 41), the protestants will be referred to herein as plaintiffs, and the proponents as defendants.

The assignment of error particularly stressed and relied upon by plaintiffs questions the action of the trial court in overruling their demurrer to defendants' evidence. This assignment raises the question of the burden of proof placed upon the proponent of a will in a contested case, the question as to how far he must proceed with his proof in order to establish a prima facie case as to the validity of the will.

This court has said that in a contested will case where the petition for probate and the protest are heard together, as in this case, the burden of proof is upon the proponent to make a prima facie case or satisfactory proof of the due execution of the will; that the proof required by statute, though no protest, cannot be waived. Tiger v. Peck, 74 Okl. 9, 176 P. 529. That holding is in strict compliance with the statute, section 1099, O.S.1931 (58 Okl.St.Ann. § 30) which provides: "If no person appears to contest the probate of a will, the court may admit it to probate on the testimony of one of the subscribing witnesses, only if satisfied from the testimony of such witness that the will was executed in all particulars as required by law, and that the testator was of sound mind at the time of its execution."

The foregoing decision expresses the rule that the degree of proof required of the proponent in order to establish a prima facie case is the same whether there is or is not a contest, thus plainly recognizing the provisions of the aforesaid section 1099 (58 Okl.St.Ann. § 30), which are to the effect that a prima facie case is established by proponent when he has produced satisfactory proof "that the will was executed in all particulars as required by law, and that the testator was of sound mind at the time of its execution."

Where the will is shown to have been regularly executed and attested, the trial court may indulge the presumption that the testator at the time of the execution thereof was of sound mind, although no positive evidence as to that question is produced. In re Elrod's Estate, 154 Okl. 84, 6 P.2d 676, 678. In that case there was no testimony produced on the part of either party as to the mental condition of the testator at the time of the execution of the will, and the court, recognizing the aforesaid presumption and approving the rule expressed in the case of In re Blackfeather's Estate, 54 Okl. 1, 153 P. 839, held: "A presumption of sanity goes with every one, and the burden of proving unsoundness of mind in a will contest rests upon the contestant."

See, also, In re Nitey's Estate, 175 Okl. 389, 53 P.2d 215.

Thus it is seen that the burden is upon the proponent to show testamentary capacity, or, in other words, to produce such evidence as will create a presumption thereof. This is not in conflict with the holding of this court (In re Sixkiller's Estate, 168 Okl. 302, 32 P.2d 936) that the burden of proof in a contested will case "is upon the proponent to prove due execution and attestation of the will which may include testamentary capacity."

The decisions merely recognize the provisions of the statute, section 1099, supra, in holding in effect that the burden is upon the proponent to prove due execution and attestation and testamentary capacity in cases where the admission of the will to probate is protested.

The court, when dealing with the question of testamentary capacity in the case of In re Sixkiller's Estate, supra, said: "A person has testamentary capacity when he has full and intelligent consciousness of the nature and effect of the act in which he is engaged; a knowledge of the property possessed; and an understanding of the disposition he wishes to make of it by will, and the persons and objects he desires to participate in his bounty." That is merely a definition of some of the elements of testamentary capacity. We cannot agree with plaintiffs' contention that the burden in a case of this character is upon the proponent of a will to establish all those elements. The burden is upon the contestant to show that some of the essential elements were wanting at the time of the execution of the will if the proponent offers a will apparently executed and attested in due form. The latter circumstance, coupled with the legal presumption of soundness of mind, establishes a prima facie case, and the burden is then upon the contestant; for, as said in the Elrod Case, above, "our statutes provide that the contestant shall be plaintiff, thereby throwing the burden of proof upon the contestant, or plaintiff to establish their pleadings or charges by a preponderance of the evidence, and the burden of proof shifts onto them as held by the court, when defendant establishes a prima facie case."

The plaintiff contends further that the burden rests upon a proponent to show want of duress, menace, fraud, or undue influence practiced upon the testator in the execution of the will, the presence of any one of which may avoid the will as provided in section 1538, O.S.1931 (84 Okl.St.Ann. § 43). This contention would seem to be supported by ...