In re Hayes' Estate

• Decision Date: 03 March 1913
• Citation: 55 Colo. 340,135 P. 449
• Parties: In re HAYES' ESTATE.
• Court: Colorado Supreme Court

135 P. 449

55 Colo. 340

In re HAYES' ESTATE.

Supreme Court of Colorado

March 3, 1913

Rehearing Denied Oct. 6, 1913.

Appeal from District Court, San Juan County; Charles C. Holbrook Judge.

Applications by Eugene Hayes and others to set aside the probate of the will of Frances A. Hayes, deceased. From a judgment sustaining the will, the contesting petitioners appeal. Affirmed.

Cook & Cook, of Greenfield, Ind., and Frank L Ross, of Silverton, for appellants.

Searcy & Way, of Silverton, and Benjamin B. Russell, of Durango, for appellees.

HILL J.

On or about July 30, 1907, Frances A. Hayes, a resident of Silverton, Colo., executed her last will. She departed this life at the same place about October 18th, same year. The will was admitted to probate in the county court of San Juan county, December 12, 1907. Within the year thereafter the children of the deceased's half-brother (probably her sole heirs at law) instituted proceedings of contest alleging, in substance, that the testatrix at the time of making the will was of unsound mind, also alleging undue influence, fraud, and duress brought to bear by some of the beneficiaries of the will upon the testatrix; also, that it was not her will, etc. The verdict of the jury and judgment sustained the will. The above-named heirs bring the case here for review.

The deceased had never been married, and at the time of her death was approximately between 70 and 80 years of age. She had been a resident of Silverton for about 15 years, was possessed of about $9,000 in money, some other personal property, and certain real estate situate in San Juan county. By the terms of the will, after providing for debts, funeral expenses, etc., she bequeathed to Marie and Emma Hollingsworth, of Silverton, $1,400, share and share alike, also five lots with two houses thereon and contents (this included her household furniture); to Mr. and Mrs. Beach, of Colorado Springs, $3,000, share and share alike; to Mrs. Allie Dudley, of Durange, $500; to Mrs. Floris Weston, of Silverton, $500; to Mrs. Alfred Mundee, of Silverton, $500; to Anna Louise Chase, of Denver, $1,400. These people had all been friends of the deceased, but were not related to her. There is evidence that the Hollingsworth girls were her closest friends. She devised and bequeathed to Katie Cribb, Robert Hayes, Eugene Hayes, and Anna Hayes, children of her half-brother William Hayes, the sum of $1 each. The last amounts were not to be diminished or prorated in the event that her estate should not pay all the legacies in full. Edward V. Hollingsworth, a brother of Marie and Emma, was made the residuary legatee; he was to have the balance of her property, if any, when all the bequests were paid. Provisions were made for the sale of any real estate necessary to pay the bequests, debts, if any, expenses of last sickness and funeral. Mr. Thomas Annear, of Silverton, was designated as executor; in case of his refusal then William H. Montgomery was so named. The will was signed at the courthouse in Silverton, and witnessed by Austin M. Reed, postmaster, Ernest Hoffman, a hotel keeper, and F. E. Larimore, a bookkeeper for a mining company.

Many assignments pertain to the admission and rejection of evidence, principally upon the cross-examination of different witnesses; but, as they pertain principally to the order in which the testimony was admitted, and come within the discretion allowed the trial court, we shall give them no discussion other than to say that we find no prejudicial error in this respect.

The trial court was exceedingly liberal in the admission of testimony, and outside of the matters hereinafter referred to, we find nothing pertaining to that phase of the case upon which any alleged prejudicial error can be sustained.

Prior to the trial the petitioners made application for permission to attach the original will to a dedimus potestatem to be sent to Indiana for the purpose of taking the deposition of two witnesses in that state, whom they desired to have examine it there, for the purpose of giving testimony pertaining to the signature of the deceased or alleged initials upon the different pages, etc. The court refused this application. The petitioners assign this as error, basing their right to such privilege upon general section 7091, Revised Statutes 1908. Without deciding what class of witnesses was intended, or whether it is meant to allow it to be transported beyond the limits of the state, or whether this section is limited to county court as contended, if applicable to the district court, and the will can be thus sent anywhere, as claimed, the section provides that the court may, in its discretion, direct the original of such will to be attached to any dedimus, etc., thus by legislative enactment making it discretionary with the trial court. It is claimed that this is not the will of the deceased; this involved the genuineness of the handwriting in the original instrument. Under such circumstances the trial court, in its discretion, refused to allow it to be taken out of the state. We find no error in this respect. The discretion vested in the trial court was exercised.

The court refused to allow the depositions of John H. Rhue and William A. Hughes to be read in evidence. These gentlemen were bankers residing in Indiana, where their despositions were taken; they pertained solely to their opinions concerning the alleged handwriting of the deceased, based upon purported photographs of the will. Three reasons are urged by the appellees why this ruling was correct. First, it is claimed that the photographic copies were shown not to be accurate and were misleading, for which reason opinions based solely thereon would be worthless. Second, because photographs of writing are only secondary evidence, and it is not lawful to introduce the photographs when the original writing is in court and can be examined by the witnesses, were they in attendance for that purpose, as was done by other witnesses in this case. Third, that the alleged forgeries attempted to be shown were those of initials only entered upon each page of the will, which were no part thereof, and hence the testimony immaterial.

It is conceded that a photograph will not be received in evidence until it is shown that it is a photograph of the thing in question, and is a fair, accurate, and truthful representation thereof. Mow v. People, 31 Colo. 351, 72 P. 1069; Baustian v. Young, 152 Mo. 317, 53 S.W. 921, 75 Am.St.Rep. 462; Cunningham, Adm'x, v. Fair Haven & Westville R. Co., 72 Conn. 244, 43 A. 1047; People's Gas, etc., Co. v. Amphlett, 93 Ill.App. 194; City of La Salle v. Evans, 111 Ill.App. 69; C. & E. I. R. R. Co. v. Crose, 113 Ill.App. 547; State v. Hersom, 90 Me. 273, 38 A. 160; Martin v. Moore, 99 Md. 41, 57 A. 671; Leidlein v. Meyer, 95 Mich. 586, 55 N.W. 367; Smart v. Kansas City, 91 Mo.App. 586.

This rule is especially applicable where the genuineness of handwriting is in question, otherwise if the photograph is inaccurate or taken in a way to make it misleading, the testimony would be of practically no value. Eborn v. Zimpelman, 47 Tex. 503, 26 Am.Rep. 315; First Nat'l Bank v. Wisdom's Executors, 111 Ky. 135, 63 S.W. 461; Grooms v. State, 40 Tex. Cr. R. 319, 50 S.W. 370; United States v. Ortiz, 176 U.S. 422, 20 S.Ct. 466, 44 L.Ed. 529; Marcy v. Barnes et al., 82 Mass. (16 Gray) 161, 77 Am.Dec. 405; Howard v. Illinois Tr. & Sav. Bank, 189 Ill. 568, 59 N.E. 1106; Buzard & Hilliard v. McAnulty & Mostly, 77 Tex. 438, 14 S.W. 138; Geer v. Lumber & Mining Co., 134 Mo. 85, 34 S.W. 1099, 56 Am.St.Rep. 489.

It is generally recognized that the question of the sufficiency of the preliminary proof to show that the photograph is a fair or accurate representation of the objects which it purports to portray is a matter largely within the discretion of the trial court. City of Chicago v. Vesey, 105 Ill.App. 191; Carey v. Hubbardston, 172 Mass. 106, 51 N.E. 521; Goldsboro v. Central R. R. Co., 60 N. J. Law, 49, 37 A. 433; State v. Miller, 43 Or. 325, 74 P. 658; Beardslee v. Columbia Township, 188 Pa. 496, 41 A. 617, 68 Am.St.Rep. 883.

In the case at bar the testimony is conflicting as to the accuracy of the photographs and from the manner taken whether they might not be misleading. For this reason alone (if they were otherwise admissible) the ruling of the trial court should not be disturbed. This makes unnecessary any consideration of the other reasons urged.

It is claimed that the court erred in refusing to instruct that the burden of proof is primarily upon the proponents of the will to show its execution in accordance with the requirements of the law, that the instrument is the free and voluntary act of the testatrix, and that the instrument offered by proponents is the same and identical instrument which the testatrix executed as her last will. Snodgrass v. Smith, 42 Colo. 60 94 P. 312, 15 Ann.Cas. 548, is cited as supporting this position. The facts are not the same. There the contest arose at the time of the attempt to probate the will. In the case at bar the will was duly admitted to probate upon the proof submitted by the proponents after due notice, as required by general sections 7082 and 7083, Revised Statutes 1908. It appears that the plaintiffs were nonresidents; that service upon them was by publication only, and that within the year they instituted this action to contest the validity of the will, as provided for by general section 7096, Revised Statutes 1908. This question pertaining to the burden of proof upon a contest after the will has been admitted to probate has been a troublesome one in many jurisdictions. It is not possible to reconcile the decisions. As the question is one of first impression in this court we shall adopt the rule...