In re Golding's Estate

• Decision Date: 07 March 1938
• Docket Number: 3202.
• Citation: 76 P.2d 1099,58 Nev. 274
• Parties: In re GOLDING'S ESTATE. v. PAINTER. GOLDING
• Court: Nevada Supreme Court

76 P.2d 1099

58 Nev. 274

In re GOLDING'S ESTATE.

GOLDING v. PAINTER.

No. 3202.

Supreme Court of Nevada

March 7, 1938

Appeal from District Court, Washoe Country, Second District; Thomas F. Moran, Judge.

Proceeding in the matter of the estate of Warren T. Golding, deceased wherein the petition of A. E. Painter for the probate of the last will and statment of Warren T. Golding, deceased, was opposed by Mabel Golding, formerly Mabel Wright. From a judgment overruling objections to the probate of the will and from an order denying a new trial, Mabel Golding appeals.

Judgment and order reversed, and new trial awarded.

Frame & Raffetto, of Reno, for appellant.

Painter Withers & Edwards and M. E. Jepson, all of Reno, for respondent.

TABER Justice.

This is an appeal from a Judgment of the Second judicial district court, Washoe country, overruling objections to the probate of the last will of Warren T. Golding, deceased, and from an order denying a new trial. Appellant will sometimes be designated herein as objector, and respondent as petitioner.

In July, 1927, Clara O. Golding commenced suit for divorce against Warren T. Golding. The parties entered into a written agreement whereby the husband, amongst other things, agreed "within two days from the entry of a final judgment of divorce granted to either party in the above entitled case to pay to said plaintiff the sum of Seven Thousand Five Hundred Dollars ($7,500.00) cash, and also the said party of the second part hereby agrees to make and execute a will in accordance with the laws of the State of Nevada, which will remain in force and effect and be effective at his death, in which will the party of the second part devises, grants and bequeaths to the party of the first part the sum of Five Thousand Dollars ($5000.00), to be paid to her after the legitimate bills and expenses of the party of second part have been paid, and before any other bequests, gifts devices or grants have been made or paid to any other person; it being intended that the party of the first part shall receive the said sum of Five Thousand Dollars ($5000.00) from the estate of the party of the second part after his legitimate creditors have been paid."

On July 16, 1927, a decree of divorce was awarded the wife, and on the same day the husband made his last will and testament wherein, after first providing for the payment of all legitimate bills, expenses, and indebtedness, he made this further provision: "Second: after the contents of the first paragraph have been complied with, I devise, grant and bequeath to Clara O. Golding. who has heretofore been my wife, the sum of Five Thousand Dollars to be paid her after the legitimate bills and expenses referred to in Paragraph 'First' of this will and before any other requests, gifts, devises or grants have been made or paid to any other person, it being intended that said Clara O. Golding shall receive said Five Thousand Dollars from my estate after my legitimate creditors have been paid. This devise to Clara O. Golding is for the purpose of complying with the terms of a certain agreement in writing entered into between Clara O. Golding and myself, dated the 15th day of July, 1927, and is not in addition thereto but for the sole purpose of complying with said contract."

All the residue and remainder of testator's estate was given by said will to his four sisters and two brothers. Appellant was given nothing by the will and she was not mentioned in any way therein. Petitioner was nominated executor of said will. Mr. Golding died on August 21, 1936.

In due time respondent filed a petition for the probate of said will. Appellant filed written objections to the granting of said petition, alleging that very shortly after Mr. Golding had been divorced by Clara O. Golding as aforesaid, she, Mabel Golding, formerly Mabel Wright, became his common-law wife, that she remained such until his death in 1936, and that by reason of her said marriage said will was revoked. This contention is based upon section 9914, N.C.L. 1929, being section 10 of "An Act concerning Wills," Statutes of Nevada 1862, p. 58, at page 59. Said section reads as follows: "If, after the making of any will, the testator shall marry, and the wife shall be living at the death of the testator, such will shall be deemed revoked unless she shall be provided for in the will, or in such way mentioned therein as to show an intention not to make such provision, and no other evidence to rebut the presumption of such revocation shall be received."

A hearing was had upon appellant's objections to the probate of said will, and some eight witnesses, besides herself, testified in objector's behalf. At the conclusion of the showing made by objector, petitioner, without offering any evidence, moved the court for an order overruling her said objections. This motion was granted. Appellant moved for a new trial, which was denied.

At the hearing on said objections to the probate of Mr. Golding's will, objector took the stand in her own behalf. After testifying, without objection, that she and Mr. Golding had lived together as husband and wife ever since July 16, 1927, she further testified in part as follows:

"Q. What did he say to you at that time? A. He asked me to marry him.

"Q. How were you to marry--the Indian custom? A. Indian custom.

"Q. A common law marriage? A. Yes."

A little later in the hearing, and while petitioner was still occupying the witness stand on direct examination, the record shows the following:

"Q. What did he have to say? Did he ever speak of dying or not living always and what would become of you? Did he ever speak of that? A. When he got real sick I asked him, in case something happened to him, what am I going to do, and he said, 'Mabel, well, you are going to be well-fixed. Everything is made to you.'

"Q. What did he say to you about you being his wife and whatever belonged to him belonged to you?

"Mr. Jepson: Just a moment.

"The Court: You are hitting that statute pretty hard now, Mr. Frame.

Mr. Edwards: It comes directly in conflict with the statute now, I move the testimony of the objector with reference to her conversation with Mr. Golding be stricken, on the ground and for the reason that it is testimony in violation of section 8966 and the other party to the transaction is dead.

"Mr. Frame: If it please the Court, this evidence is admitted without objection. It is my contention, that counsel had waived what is essentially a technical objection in a case of this kind, counsel cannot lay back and speculate on what the testimony of the witness may be and permit it to be admitted, even though it is inadmissible under the strict rule, and after he finds out what it is ask to strike is, and that is neither in good faith nor fair practice, nor is it by the rules of procedure. The objections must be made timely and counsel cannot wait until it is all before the Court and then ask to strike it.

"Mr. Edwards: I am amused at Mr. Frame's remark that it is not in good faith. We pointed it out this morning. Mr. Frame knows the questions he asked were in violation of that statute and we discussed it this morning, and we passed it by and we are not asking to take advantage and these questions are in violation of the statute and the Court has the right to understand, and if counsel didn't know of the existence of the statute when we discussed it this morning, there might be some merit to the argument.

"Mr. Frame: Yes, and I knew of the existence of the statute.

"(Further discussion between counsel).

"Mr Edwards: To save time we will withdraw the objection. Let us understand, Mr. Frame, that that statute is in effect, and may I ask that you confine your examination of the witness, excluding any conversation of the witness with the deceased.

"Mr. Frame: I will try and proceed. I have some letters I want to identify and offer in evidence.

"The Court: Four of your questions are in violation of the statute. You asked the witness a question that it is possible nobody but herself and the decedent would know. That would be objectionable and if one or two questions there that go to the gist of the action that you asked her. The statute is broad in some respects and you can ask a number of questions but not the real thing that took place between them. The lips of the other party are sealed, and it would not be in accordance with this or other statutes to permit that evidence to be introduced by the parties directly interested. As you said this morning, I noticed you had a knowledge of the statute that you said other parties were not parties to the transaction. Those four questions will go out notwithstanding that counsel waives his objection. Proceed.

"Mr Frame: If it please the Court, I want to take an exception, upon the ground that the testimony is relevant, competent and material and the objections to the same and the motion to strike the same came after a full examination of the witness upon the point and after the answers to the questions and after the testimony was given that is now asked to be stricken, and for that reason it amounts to counsel speculating on possibly the witness giving an answer favorable to him, and afterwards when it was not, moving to strike the testimony, that it amounts to a waiver of any objection...