In re Holmes' Estate

• Citation: 56 P.2d 1333,98 Colo. 360
• Decision Date: 09 March 1936
• Docket Number: 13801.
• Parties: In re HOLMES' ESTATE. v. BOYLE et al. HUBER
• Court: Supreme Court of Colorado

56 P.2d 1333

98 Colo. 360

In re HOLMES' ESTATE.

HUBER v. BOYLE et al.

No. 13801.

Supreme Court of Colorado, En Banc.

March 9, 1936

Rehearing Denied April 27, 1936.

Error to District Court, Park County; James L. Cooper, Judge.

Proceeding in the matter of the estate of Samuel Holmes, deceased wherein Daisy M. Holmes offered deceased's will for probate, and wherein John M. Boyle was appointed administrator of the estate, and wherein Mrs. W. H. Huber filed a motion to vacate the order admitting the will to probate. To review a judgment entered on a directed verdict sustaining the will, contestant brings error and the administrator and proponent cross-assign error.

Reversed and remanded for a new trial.

BOUCK J., dissenting.

Thomas A. Nevens, of Salida, and Arthur R Morrison, of Denver, for plaintiff in error.

Blount, Silverstein & Rosner, of Denver, for defendants in error.

BUTLER Justice.

This is a contest over the will of Samuel Holmes.

Holmes died August 31, 1932, leaving a purported will, dated February 21, 1930, naming as his sole devisees and legatees his nieces Daisy M. Holmes and her sister, Florence Holmes Soule. Miss Holmes filed petitions for the probate of the will and for the appointment of John M. Boyle as administrator to collect. In both she stated under oath that she and her sister were the only heirs at law of the deceased. At that time she knew that Mrs. Pratt, a great-niece of Holmes, was living in California, and Miss Holmes had been told that Mrs. W. H. Huber, Holmes' sister, had a daughter in Canada. She always knew, or 'supposed' she knew, that Mrs. Huber had a daughter. Boyle was appointed administrator to collect and a date was set for hearing on the petition for the probate of the will. The will was admitted to probate October 4, 1932, but no notice of the hearing had been served or published. On December 1, 1933, Mrs. Huber filed a motion to vacate the order admitting the will to probate. Thereupon Miss Holmes filed a petition to reprobate the will. She named therein, as heirs at law of Holmes, herself and her sister and also Mrs. Huber and a great-niece and four great-great-nieces. Mrs. Huber filed a caveat. Upon the trial, the jury returned a verdict sustaining the will. An appeal was taken to the district court, where, on July 1, 1935, there was a directed verdict sustaining the will, and judgment was rendered on the verdict. Mrs. Huber seeks the reversal of that judgment.

One witness testified that in January, 1929--about a year Before the execution of the will--Holmes stated that he had just received a letter from his niece informing him that his sister was dead. Another witness testified that Holmes told him that he made a will to his two nieces; that his sister was dead, otherwise he would have made the will in her favor; and that if his sister were still living, he would remember her, although he had not heard from her for some time. He made a similar statement to another witness. The postmistress testified that on one occasion she handed Holmes a letter, and that after scanning it he handed it back, saying that it purported to come from his sister, but that she was dead.

That the will was executed is admitted. That at the time he executed it Holmes labored under the mistaken belief that his sister was dead, is shown by undisputed evidence. The fact that he was mistaken in that regard would not, of itself, avoid the will. If, however, the mistaken belief was caused by false representations knowingly made by Miss Holmes and Mrs. Soule with the fraudulent purpose of inducing Holmes to make his will in their favor, to the exclusion of his sister, and he so made the will in reliance upon such representations, the will would be void as to both. If such representations were made by one of them, the other not participating in the fraud, the devise and bequest to the wrongdoer would be void, but the devise and bequest to the innocent beneficiary would be valid in the absence of a showing that such devise and bequest were affected by the representations. In re Estate of Newhall, 190 Cal. 709, 214 P. 231, 28 A.L.R. 778; In re Carson's Estate, 184 Cal. 437, 194 P. 5.

Was there sufficient evidence of fraud to take the case to the jury? If there was, the judgment should be reversed; otherwise it should be affirmed.

Fraud is never presumed. The one asserting it must prove it by evidence that is clear, precise, and indubitable. Denver & Rio Grande Railroad Co. v. Sullivan, 21 Colo. 302, 41 P. 501; Noble v. Faull, 26 Colo. 467, 58 P. 681; Fulton Investment Co. v. Smith, 27 Colo.App. 279, 149 P. 444; Tourtelotte v. Brown, 4 Colo.App. 377, 36 P. 73. That does not mean that fraud must be established by direct and positive evidence; it is sufficient if there are established by positive and affirmative proof facts and circumstances from which fraud reasonably may be inferred. Tourtelotte v. Brown, supra. The rule with reference to proof of fraud must be considered in connection with the maxim, 'Every presumption is made against a wrongdoer,' hereinafter discussed.

In Davis v. Davis, 64 Colo. 62, 76, 170 P. 208, 213, we said:

'In determining whether or not a will contest should be submitted to the jury, every favorable influence [inference] fairly deducible and every favorable presumption fairly arising from the evidence produced must be considered as facts proved in favor of contestants. Where evidence is fairly susceptible of two constructions, or if either of several inferences may reasonably be made, the court must take the view most favorable to the contestants. All the evidence in favor of the contestants must for such purpose, be taken as true, and if contradictory evidence has been given, it must be disregarded.

'If there is any substantial evidence tending to prove in favor of contestants all the facts necessary to make out their case, they are entitled to have the case go to the jury for a verdict on the merits.'

Holmes died in Fairplay, Colo., where he had lived for many years. His sister, Mrs. Huber, lived in California. Miss Holmes lived in Michigan, where for seventeen years she taught in a high school. Mrs. Soule lived in Massachusetts. Holmes occasionally, up to 1926, sent money to his sister. He also sent money to Miss Holmes and Mrs. Soule, and wrote to them occasionally. Miss Holmes had not seen Holmes since 1915, when she visited him. Mrs. Soule never visited him.

When Miss Holmes was notified by the coroner that her uncle had died and that his will left everything to her and her sister she went to Fairplay. She took no steps to notify any of Holmes' relatives other than her own sister. Among Holmes' papers were letters written to Holmes by Miss Holmes, Mrs. Soule, and Mrs. Huber. Those letters Miss Holmes destroyed. 'Every presumption is made against a wrongdoer.' Broom's Legal Maxims (8th Ed.) 938. The willful spoliation or destruction of papers which might contain adverse evidence gives rise to a presumption unfavorable to the one responsible therefor, since his conduct may properly be attributed to his supposed knowledge that the truth would operate against him. 10 R.C.L. p. 885; Wigmore on Evidence (2d Ed.) § 291; McCleery v. McCleery, 200 Ala. 4, 75 So. 316. Here it is contended that the letters did contain evidence adverse to the proponent of the will. The presumption is not a conclusive presumption, but may be rebutted by explanatory evidence. It is not a presumption of law, but is an inference that the jury is at liberty to draw from the fact of spoliation or destruction. Concerning the effect of such...