In re Hing's Estate

• Citation: 78 Utah 324,2 P.2d 902
• Decision Date: 31 August 1931
• Docket Number: 4937
• Parties: In re DONG LING HING'S ESTATE. CENTRAL TRUST CO. v. DONG TEAM CHEW
• Court: Supreme Court of Utah

2 P.2d 902

78 Utah 324

In re DONG LING HING'S ESTATE.

CENTRAL TRUST CO. v. DONG TEAM CHEW

No. 4937

Supreme Court of Utah

August 31, 1931

Appeal from District Court, Third District, Summit county; Wm. M McCrea, Judge.

In the matter of the estate of Dong Ling Hing, otherwise known as D L. H. D. Grover, deceased. Petition by Central Trust Company for probate of the will of deceased, opposed by Dong Team Chew, otherwise known as Joe Grover. Judgment for contestant and proponent appeals.

Affirmed.

Henry D. Moyle, of Salt Lake City, for appellant.

A. R. Barnes, of Salt Lake City, for respondent.

FOLLAND, J. CHERRY, C. J., and STRAUP, ELIAS HANSEN, and EPHRAIM HANSON, JJ., concur.

OPINION

FOLLAND, J.

This is a will contest. A Chinese, Dong Ling Hing, generally known as D. L. H. D. Grover, a resident of Park City, Utah, died February 11, 1926, at the age of 63 leaving a substantial estate. Upon application for probate of the estate of the deceased, Dong Team Chew, also known as Joe Grover, the reputed son of the deceased, was in February, 1926, appointed as administrator and thereafter qualified and has continued to act as such administrator to the present time. In March, 1927, the Central Trust Company, a corporation, filed a document purporting to be the last will and testament of the deceased, wherein Mrs. Annie Levey is named as executrix and as sole beneficiary, and petitioned the court for the probate of such document as the last will and testament of the deceased. Mrs. Annie Levey, the person named in the will as executrix, filed her renunciation of the right of appointment and requested that petitioner be appointed as executor. The son, Dong Team Chew, filed objections to the purported will, alleging that it was not the last will and testament of the deceased; that the deceased did not sign the will; that it was not attested as required by law by the persons whose names appear as witnesses; and that the will was procured by fraud. The case was tried to the court without a jury, and the district court made findings of fact, conclusions of law, and entered judgment in favor of the contestant, adjudging that the alleged will was not the last will and testament of the deceased, and denied the probate thereof.

We are met at the threshold with a motion of the respondent to strike the bill of exceptions on the ground that the bill was not served within the time provided by Comp. Laws Utah 1917, § 6969, as amended by Laws of Utah 1925, chap. 51.

The motion for a new trial was overruled January 2, 1929, and notice of appeal served July 1, 1929. The court, on timely applications, extended the time within which the bill of exceptions might be served, filed and settled up to and including August 31, 1929. The bill was served, filed and settled August 29, 1929, within the time allowed. It is the contention of respondent that the amendment of 1925 imposed a limitation on the discretionary power of the court to enlarge the time within which a bill of exceptions might be served, filed, and settled, and fixed that limit at thirty days after service of notice of appeal. This question was settled in Hurd V. Ford, 74 Utah 46, 276 P. 908, wherein we held that the trial court acted within its power in granting an extension of time beyond the thirty-day period after service of notice of appeal as provided in the amendment of 1925. We see no reason for now placing a different construction upon this statute. The motion to strike the bill of exceptions is denied.

The chief issue before the court is the validity of the purported will, whether it was duly and lawfully executed and published by the deceased, and duly attested by the subscribing witnesses. It is alleged by contestant and denied by the proponent of the will that contestant is a son of the deceased. That issue is important here only as affecting the right of contestant to object to the probate of the will. If he is an heir of the deceased he undoubtedly has a right to contest the will, but if not he is a stranger to the proceeding. On these issues the court made findings as follows:

"That the said Dong Team Chew is the son of the said Dong Ling Hing, deceased; that he was born in Canton, China, about the eighth day of July, 1902; that he was received and entered into the United States, by the Immigration Department of the United States Government, as the son of the said Dong Ling Hing on or about the thirty-first day of May, 1918; that he was so received and entered into the United States as a citizen thereof upon the application of said Dong Ling Hing; that immediately upon his entry into the United States the said Dong Team Chew, contestant herein, went to Park City, Utah, together with his father, the said Dong Ling Hing, and took up his residence at that place with the said Dong Ling Hing; that at all times thereafter until his death the said Dong Ling Hing continuously held out to his friends and to the public that contestant was his son; that at all times after the entry of Dong Team Chew into this country the relations between the said Dong Ling Hing and said Dong Team Chew were friendly, the association between them at all times being that of father and son; that at the time of the death of the said Dong Ling Hing, contestant was residing with him at Park City, Utah.

"That at the time of the hearing on said petition for probate and said objections thereto Edward Fitzpatrick, who appears as an attesting witness to said alleged will, was dead, and Barnard Duffy, also appearing as an attesting witness thereto, was residing in Ireland, of the Kingdom of Great Britain; that the deposition of said Barnard Duffy was not taken, and the only witness produced by said proponent as to the execution of said alleged will was Mrs. Annie Levey, who, by the terms of said alleged will, is made the sole beneficiary thereof.

"The Court finds that the said Dong Ling Hing was illiterate; that he could neither read nor write the English language; that said alleged will is a typewritten instrument in the English language; that said instrument was not read to him; that he did not know the contents thereof; that he did not sign said alleged will; that he did not sign said alleged will knowing the contents or the purport thereof.

"The Court further finds that neither of said attesting witnesses, Barnard Duffy and Edward Fitzpatrick, signed said instrument as the will of the said Dong Ling Hing or knowing the same to be the will of the said Dong Ling Hing; that the said Dong Ling Hing did not declare to them or either of them that said instrument was his will; that the said Dong Ling Hing did not request said attesting witnesses, or either of them, to sign said alleged will or to witness the same; that neither the said Barnard Duffy nor said Edward Fitzpatrick signed said instrument in the presence of or at the request of the said Dong Ling Hing; that they did not sign said instrument in the presence of each other.

"That said alleged will is undated; that the said Annie Levy testified at the hearing of this cause that the same was executed in the late summer or early fall of either the years 1919 or 1920; that the said Annie Levy was not in any way related to the said deceased and said deceased was not, at the time of the alleged execution of said will, in any way obligated to her."

These findings are assailed as not being supported by the evidence.

This is a law action triable by jury had either of the parties chosen to have it so tried. In such a case this court cannot weigh and pass on conflicting evidence, or pass on the credibility of witnesses. We are restricted to a review and determination of errors of law and the competency and sufficiency of the evidence to support the findings. The document offered for probate is not admitted to be the will of the deceased. Both the execution and attestation thereof are denied. The burden of proof was on the proponent of the will to establish by preponderance of the evidence both the lawful execution by the testator, and attestation thereof by the witnesses.

We shall first consider the finding that Dong Team Chew, or Joe Grover, was a son of Dong Ling Hing. The deceased was a Chinese, born in San Francisco, and therefore a citizen of the United States of America. Twice he had gone to China where he had married three women and where several children were born to him. He returned to the United States the last time in 1902 and went to Park City, where he had previously lived. He seems to have engaged in the laundry business and by industry and thrift accumulated a considerable amount of property which at the time of his death consisted of some sixty or seventy houses located in Park City and worth, according to the inventory and appraisement on file, about $ 36,000. He, at various times, attempted to bring four of his claimed sons into the United States. Two of these were admitted and two were denied admission. Joe Grover was admitted to the United States in 1918 after an extensive investigation by the immigration officials of the government. He was born in Canton, China, about July 8, 1902, of Lee Shee, third wife of the deceased, shortly after the deceased had left Canton to return to the United States. Contestant came to this country at the request of the deceased, who met him at Seattle, and, after investigation by immigration officials, brought him to Park City, where the two lived together for more than a year. In 1919 contestant came to Salt Lake City, where he was employed for a time in a cafe and later conducted a restaurant business financed by his father and uncle and himself. In 1924 he returned to Park City and there lived with the deceased until the death of the latter in 1926. The record of investigation made by...