In re Lane's Estate

• Decision Date: 09 June 1936
• Docket Number: 1949
• Citation: 50 Wyo. 119,58 P.2d 415
• Parties: IN RE LANE'S ESTATE; v. SCHOONMAKER, ET AL HARRIS
• Court: Wyoming Supreme Court

58 P.2d 415

50 Wyo. 119

IN RE LANE'S ESTATE;

HARRIS v. SCHOONMAKER, ET AL

No. 1949

Supreme Court of Wyoming

June 9, 1936

Rehearing denied September 1, 1936, 60 P.2d 360, Reported at 50 Wyo. 119 at 143.

Will contest by Mary Harris against Gwynne F. Schoonmaker executor of the last will and testament of Sarah N. Lane deceased, and others. From a judgment of the district court dismissing with prejudice the petition of Mary Harris, she appeals. Rehearing denied September 1, 1936. See 60 P.2d 360.

Affirmed.

For the appellant there was a brief and oral argument by J. J. Spriggs of Lander, Wyoming.

The court directed the jury on all issues except the parentage. In such circumstances, whether the evidence supports the verdict and judgment, and whether the court erred in submitting the issues to the jury, all evidence offered by contestees is to be disregarded. Only evidence offered by contestant or that of contestees which favors contestant is to be considered. If the burden of proof on any issue was on contestees, or if the evidence tends to establish an issue in favor of contestant, it was error to direct a verdict in favor of contestees, and the matter should be left to the jury. The judgment for such reason does not stand sustained by the evidence, but is contrary to the evidence and to the law. Hoch v. Kirby, (Mont.) 39 P.2d 657; Coats v. General Motors, 39 P.2d 846. The motion admits all facts which the evidence tends to establish. Phillips v. Dale, 39 P.2d 546; Ward v. Coleman, 39 P.2d 546; Strahan v. Gas Company, 41 P.2d 41; Bell v. Grimstead, 266 P. 394; Mellon v. Kelley, 41 P.2d 52; Estate of Flood, 21 P.2d 579. The burden was on contestees. Re Will of Carr, 256 P. 390; In re Knutson's Will, 41 P.2d 799. By leaving out of the will and omitting those dependent on her bounty, is proof of mental incapacity, undue influence and lack of understanding. Meier v. Buchter, 94 S.W. 883. An unnatural disposition by will tends to discredit testamentary capacity. Underhill on Wills, Sec. 105; Page on Wills, Sec. 385. The question of parentage was for the jury. Perkin's Estate, 235 P. 49; Estate of Lindville, 300 P. 505. Testatrix was blind, 81 years old and was hard of hearing. She was ill the day before she executed the will. Two of the witnesses occupied a fiduciary relationship to her and were incompetent. Miney's Estate, 299 P. 200; Brown v. Canadian, 289 P. 613. The will was not properly executed. Anyone deriving a benefit is incompetent as a witness. Sec. 88-104. Instruction numbered 3 is incomplete. Instructions D and E requested should have been given. 18 R. C. L. 392. Instructions 4, 7, 8, 9 and 10 were erroneous and prejudicial because the burden was on contestant. Rice v. Tilton, 13 Wyo. 420. Requested instructions A, B and C should have been given. Ex Parte Morgan, 289 P. 647. Requested instructions D, E and F should have been given. The statute provides that if a person dies and leaves no living children, the estate shall go to the descendants of the children. Sec. 88-4001, R. S. 1931; Hasting v. Rathborne, (Iowa) 188 N.W. 960. There was no jurisdiction to admit the will to probate for want of lawful notice. Section 88-215-217. It was error to admit Attorney Coolidge to participate in the trial. Aquilin, et al. v. Chamblin, 30 P.2d 325. Evidence offered as to parentage of contestant was proper, both as to parentage and corroborating Mary Boyd. Stella v. Stella, 244 P. 846. Contestant offered to show an ante-testamentary settlement and agreement, which was competent. For the reasons set forth in the specifications of error, the judgment should be vacated and set aside, and a new trial granted on all the issues that were submitted to the jury on the marriage and parentage of contestant and her heirship and interest in the estate.

For the respondent, there was a brief and oral argument by P. B. Coolidge and W. E. Hardin of Lander.

Contestant abandoned the review of this case by motion for a new trial and is in the Supreme Court by the method of direct appeal. She cannot maintain both methods. Mitter v. Black Diamond Coal Company, 27 Wyo. 72. A special finding will control as against a general finding when they are in conflict, but when there is a conflict between two special findings, one of which supports, and the other conflicts with the general finding and judgment, the one that supports the judgment must control. Cramer v. Munkres, 14 Wyo. 234. The special finding that the parentage of contestant was undetermined is equivalent to a special finding in favor of the contestant. Pullman Company v. Finley, 20 Wyo. 475. There was no proof of the marriage contended for by contestant. Zoel's Estate, 25 Pa. Dist. 604; 38 C. J. 1342. The presumption is in favor of the second marriage. Schmisseur v. Beatrice, 35 N.E. 525. The instructions given by the trial court were erroneous. Higley v. Jeffrey, 44 Wyo. 48. The question is as to the intention of the testatrix at the time she signed the will. Canada v. Ihmsen, 33 Wyo. 445. Specifications of error not argued in the brief are deemed to be waived. Lane Company v. District, 42 Wyo. 239; Automobile Company v. Lloyd, 40 Wyo. 49; Boswell v. Bliler, 9 Wyo. 227; Riordan v. Horton, 16 Wyo. 363; Wood v. Stevenson, 30 Wyo. 171; McClintock v. Ayers, et al., 36 Wyo. 132; Amoretti v. A. E. Wilde, 47 Wyo. 197. The provisions of the will itself destroys the fallacy that testatrix was of unsound mind, acted under undue influence and that it was improperly attested. All the legatees were tied to testatrix by blood or marriage. There is nothing in the evidence to disclose undue influence. Cook v. Bolduc, et al., 24 Wyo. 291. Circumstantial evidence that will support the contest on the ground of undue influence must be something more than suspicion. In re Shell's Estate, 63 P. 413; In re Lavingburg's Estate, 119 P. 915; In re Kilborn's Estate, 120 P. 762; Harwich v. Langford, 41 P. 701. Proof of hereditary tendency to insanity will not of itself suffice to show that any mental disorder exists. 40 Cyc. 1031; Hathaway v. Delaware Company, 78 N.E. 153; Dwight v. Insurance Company, 8 N.E. 654; Linkauf v. Lombard, 33 N.E. 472. The court did not err in directing a verdict. Pringle v. Burroughs, 78 N.E. 151. Contestant cannot recover on any view of the evidence. Hoch v. Kirby, 39 P.2d 657. The judgment should not be disturbed on appeal. Bower-Venus Grain Company v. Smith, 204 P. 265; Insurance Company v. Harrington, 259 P. 582; Smith v. Cornwell Lumber Company, 223 P. 154; Stafford v. Bond, 233 P. 185; Wood v. Wood, 25 Wyo. 26. On the question of parentage, the case of Stille v. Stille, 224 P. 847, cited by contestant, is not in point. The usual rule is that recognition shall be made by the father. 2 Jones Commentaries on Evidence, Section 313. The integrity of the court cannot be attacked in a collateral proceeding such as this. Dunsmuir v. Coffey, 82 P. 684; Goldtree v. McAllister, 24 P. 801. The rule of privilege does not apply in litigation after the client's death, between parties, all of whom claim under the client. 40 Cyc. 2380. Attorneys at law are competent to attest wills which they have drafted, under instructions from clients. 28 R. C. L. 137; In re Nelson Estate, 64 P. 295; Shelborn v. Dorn, 231 P. 346. An administrator or executor is a trustee of an express trust. In re Heydenfeldt's Estate, 49 P. 713. It is the right of a person named in a will as executor to propound the paper for probate, although it is not his imperative legal duty to do so, and in case of a contest he has the right to elect whether he will himself assume the burden of sustaining the instrument or cast the burden of contest on those who are to be benefited by the probate of the instrument. 23 C. J. 1171.

RINER, Justice. KIMBALL, Ch. J., and BLUME, J., concur.

OPINION

RINER, Justice.

This is a proceeding by direct appeal to obtain the review of a judgment of the district court of Fremont County dismissing with prejudice the petition of Mary Harris filed in that court for the purpose of contesting the Last Will and Testament of Sarah N. Lane, deceased.

The facts necessary to be considered in disposing of the matter here are substantially these: A. D. Lane and his wife, Sarah N. Lane, many years ago came to the Lander Valley and he engaged in the mercantile business as a licensed Indian trader at Wind River Agency, Wyoming. A son, William N. Lane, was born to them August 12, 1871, who during the years 1884 to 1894, inclusive, attended school without Wyoming, vacationing with his parents during the summer months until about the last of August or the first of September of each year. He finally graduated in law at Cornell University and engaged in business in Milwaukee, Wisconsin. There he was married June 27, 1911. As the issue of that marriage there were born to him and his wife, Elizabeth Lane, two children, John S. Lane and William N. Lane, both being minors, John aged twenty years and William seventeen years, at the time the hearing of the will contest was had in December, 1934. July 26, 1920, while traveling from Milwaukee to Lander, the father of these children was killed in a railroad accident. Their grandfather, A. D. Lane, died April 17, 1930. Their mother thereafter, on February 2, 1931, was married to Charles Baerwald of Milwaukee, Wisconsin.

July 31, 1931, Sarah N. Lane, being then about eighty or eighty-one years old, executed the will in question, which was witnessed by E. E. Coon and P. B. Coolidge, both residing in Lander, Wyoming. By that will, after directing that her debts and funeral expenses be paid, the testatrix bequeathed to Charles E. Lane, a brother of her deceased husband and a resident of East Rochester, New York, the sum of $ 4000.00, and to her daughter-in-law, Elizabeth Lane, a legacy of $...