In re Hansen's Will

• Citation: 50 Utah 207,167 P. 256
• Decision Date: 09 August 1917
• Docket Number: 3066
• Parties: In re HANSON'S WILL
• Court: Supreme Court of Utah

167 P. 256

50 Utah 207

In re HANSON'S WILL

No. 3066

Supreme Court of Utah

August 9, 1917

Appeal from District Court, Third District; Hon. M. L. Ritchie Judge.

Application of Ernest N. MacGregor for probate of will, of Peter Hanson.

From judgment denying probate, the proponent appeals.

REVERSED and case remanded with directions to grant a new trial.

Geo. Y Wallace, Jr., for appellant.

Ashby Snow for respondent.

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

OPINION

FRICK, C. J.

Peter Hansen, a resident of Salt Lake City, died testate on the 23d day of May, 1916. He left surviving him two sons of the ages of forty-seven and thirty-three years, respectively, and three daughters, aged thirty-eight, thirty-five, and thirty-one years. His wife had obtained a divorce from him in 1904 and thenceforth he continued single, living entirely apart from his family. On the 3d day of November, 1915, or a little more than five months before he died, he executed what is termed his "last will and testament," in which he made one Ernest N. MacGregor and one M. McConnell his residuary legatees and also named them as executors of his will. The testator left the will with MacGregor's wife about six weeks after its execution. In due time the said Ernest N. MacGregor produced the alleged will and filed an application under our statute to have the same admitted to probate. After the application had been filed three of the children aforesaid, to wit, two of the daughters and the youngest son, filed their protest against the admission of the alleged will to probate. The grounds alleged in the protest were: (1) That at the time of the execution of said will the testator was of unsound mind; (2) that said alleged will was not executed as provided by our statute; and (3) that it was obtained by fraud and undue influence. The last ground of contest above named was in the following words:

"That the said decedent at the time of the signing of the said alleged will or document was of feeble and unsound mind, and the said Ernest N. MacGregor and M. McConnell, while the said decedent was of feeble and unsound mind, for the purpose of defrauding the heirs of the said deceased of their interest in his estate by constantly associating themselves with the said decedent and by gaining a predominance over his will and mind by persuasion and inducements, did, as your petitioners are informed and believe, by such persuasion and undue influence, overcome the will of the said decedent, if any he then possessed, and did fraudulently and wickedly induce the said decedent to sign his name to the said document or alleged will; that the said signature was obtained wholly by the exertion as aforesaid of such undue influence and fraud exerted upon the mind of the decedent, all of which caused him to sign his name to the said document; and that except for such acts and undue influence the decedent would not have signed his name thereto."

The proponent of the will filed an answer to the protest in which he in effect denied all the allegations contained in the protest, and, on the contrary, averred that the alleged will was duly and properly executed, and that the testator was of sound and disposing mind at the time of its execution, and that he was not influenced, etc.

The issues were submitted to a jury, and they made answer to special findings submitted to them as follows:

"Q. Were there two attesting witnesses, each of whom signed his name as a witness at the end of said document at the request of said Peter Hansen, in his presence and in the presence of the other? A. Yes. Q. If you shall find that said Peter Hansen subscribed the said document, was he at the time of so doing of sound and disposing mind? A. Yes. Q. Was said alleged will procured to be made by the fraud or undue influence of Ernest N. MacGregor or M. McConnell or either of them? A. Yes."

It would seem that the first special finding was unnecessary in view that what is therein contained was admitted in open court by the contestants.

The record discloses that the jury were polled, and that, while all of the eight jurors answered the first two findings in the affirmative, only six of them answered the third finding in the affirmative, and two answered it in the negative.

No general verdict was submitted to the jury or returned by them. The court, however, directed judgment to be entered on the special findings denying the proposed will probate upon the sole ground that "the same was obtained by the exercise of undue influence." On December 30, 1916, judgment was entered accordingly.

In due time after the jury had returned the special verdict the proponent filed his notice of motion for a new trial, and on January 3, 1917, within five days after judgment was entered, he filed a second notice of motion for a new trial. The court overruled the first motion for a new trial, and, on motion of the protestants, struck the second motion from the files. Counsel for the proponent now insists that the court erred in striking his second motion. We think not.

Comp. Laws 1907, section 3294, provides as follows:

"The party intending to move for a new trial must, within five days after the verdict of the jury, if the action were tried by a jury, or after notice of the decision of the court or referee, if the action were tried without a jury, file with the clerk, and serve upon the adverse party a notice of his intention, designating the grounds upon which the motion will be made, and whether the same will be made upon affidavits or upon the minutes of the court."

It will be observed that under our statute the application for a new trial is directed against the verdict, and not the judgment, and hence the notice of motion must be given within the time fixed by statute after the verdict is returned, regardless of when judgment is entered. Such is also the holding of this court. Fisher v. Emerson, 15 Utah 517, 522, 50 P. 619. Nor is there anything to the contrary in the recent case of Yerrick v. District Court, 48 Utah 619, 161 P. 55. While the writer's views did not prevail in that case, yet there is nothing in the majority opinion which is contrary to my views there expressed, that under our statute the verdict, and not the judgment, is the thing that is assailed by a motion for a new trial. Indeed that is the clear purport of our statute. Nor was it necessary for the jury to return a general verdict in addition to their special verdict, as contended by counsel for proponent. Comp. Laws 1907, section 3162, provides that a verdict of a jury may be either general or special. In that section the verdicts are defined thus:

"A general verdict is that by which they [the jury] pronounce generally upon all or any of the issues, in favor of either the plaintiff or defendant; a special verdict is that by which the jury finds the facts only, leaving the judgment to the court."

In this case the special verdict covered every issue, and therefore a general verdict was unnecessary. In case a special verdict does not cover every issue, then, as a matter of course, a general verdict is necessary to authorize a judgment on the verdict. It follows, therefore, that the district court did not err in failing to have the jury return a general verdict in this case.

It is next contended that the district court erred in not permitting the proponent to make formal proof of the due execution of the will, etc., before impaneling the jury to try the issues presented by the protestants, and in ruling that the burden of proof was on the proponent. Where there is no contest, the testimony of the subscribing witnesses to the will is usually taken either by deposition or by written answers in open court, or answers are made to the formal statutory questions propounded to such witnesses. Where there is a contest, however, as in this case, then the witnesses may be required to answer all questions respecting the due execution of the will and the mental capacity of the testator at the time of its execution before the jury, with the privilege of cross-examination by the protestants, as in other cases. In 1 Underhill on the Law of Wills, section 86, the author approves the method just outlined. The court therefore did not err in impaneling the jury before hearing the evidence respecting the due execution of the will, etc.

Upon the question of burden of proof the district court after announcing the purpose of the several pleadings, ruled as follows:

"The burden of proof will be upon the proponent and he will have the right of opening and closing"

--to which ruling the proponent excepted. The court therefore proceeded to try the issues upon that theory, but in charging the jury entirely omitted to charge respecting the burden of proof upon the issue of undue influence, although it charged that the burden of proof on the issue of insanity or mental capacity was on the protestants. With respect to who has the burden of proof upon the question of mental capacity when that is in issue the authorities are in apparent conflict. The divergent views, however, to a large extent at least, are due to the fact that courts have not always discriminated between the trial of a will case where the contest arises before the will is admitted to probate and one where the contest arises after that formality has taken place. There is little, if any, conflict relating to the burden of proof in a case where the contest is initiated after the will has been admitted to probate except upon the ultimate fact in case the mental capacity of the testator is in issue. But there is much confusion in cases like the present, where the contest is initiated before the will is formally admitted to probate.

In a case like the present we...