In re Maikka's Estate

• Decision Date: 01 June 1942
• Docket Number: 14944.
• Citation: 110 Colo. 433,134 P.2d 723
• Parties: In re MAIKKA'S ESTATE. v. SALO. MAIKKA et al.
• Court: Colorado Supreme Court

134 P.2d 723

110 Colo. 433

In re MAIKKA'S ESTATE.

MAIKKA et al. v. SALO.

No. 14944.

Supreme Court of Colorado

June 1, 1942

As Modified on Rehearing March 15, 1943.

In Department.

Error to District Court, Delta County; Straud M. Logan, Judge.

Proceeding in the matter of the estate of Hilma Maikka, deceased wherein Sophia Salo was the proponent of the will of the deceased, and Fred R. Maikka and Erik W. Maikka filed a caveat. There was an order admitting the will to probate, and the contestants bring error.

Affirmed.

HILLIARD J., dissenting.

Moynihan-Hughes and Harrison Loesch, all of Montrose, for plaintiffs in error.

J Glenn Miller, of Palms, Cal., and Fairlamb & Fairlamb, of Delta, for defendant in error.

BAKKE Justice.

This is a will contest. Testatrix was Hilma Maikka who left all of her estate--except $1 to each of two sons--to her daughter Sophia Salo, defendant in error, who also was the proponent of the will, and who is designated by counsel as contestee. When the will was offered for probate, caveat was filed by proponent's brothers, Fred R. Maikka and Erik W. Maikka. In the original and amended caveat, mental incapacity (in original caveat only), fraud, and undue influence by the daughter were urged, but these charges were abandoned and lack of proper execution became the sole issue. Objections to the caveat were filed denying all matters therein, and after a hearing in the county court the will was ordered admitted to probate. On apppeal to the district court, the attorneys entered into a stipulation under which the evidence taken in the county court, and no other, was to be submitted to the district court. When the matter first came on for hearing in the district court, Hawkins, the scrivener of, and also one of the subscribing witnesses to, the will was ill and the matter was continued, as to him. The testimony of the other subscribing witness, Craig, and that of proponent was taken (without objection either in the county or district court). This hearing was had April 12, 1939. The second hearing was on December 29, 1939, when Hawkins gave his testimony without objection. Witness Craig was present and testified in rebuttal of Hawkins' testimony. Proponent also offered Elmer Salo, her husband, as a witness but he was not permitted to testify. The matter then was continued to February 7, 1940, when proponent again requested that Elmer Salo be permitted to testify. Counsel for caveators objected on the ground that it was contrary to the terms of the stipulation and that the stipulation had not been set aside. The court in a rather lengthy statement said he had not yet been able to reach a conclusion because of the conflict in testimony, overruled the objection and permitted Salo to testify, following which he ordered the will admitted to probate. Caveators are here asking for a reversal of the judgment, or remand for further hearing.

The specifications of points are: 1. The testatrix did not declare her purported will to be her last will and testament in the presence of the subscribing witnesses thereto. 2. The testatrix did not request the subscribing witnesses to her will to witness the same. 3. The subscribing witnesses did not witness the same in the presence of each other. 4. The court erred in itself violating, and permitting attorneys for proponent to violate, the stipulation by receiving further and other testimony.

We deem it unnecessary to consider each of these points separately because in the last analysis the will must stand or fall with the testimony of Elmer Salo and Hawkins. This is inferentially conceded by counsel for caveators. We could not sustain the will without their testimony because the testimony of the subscribing witness Craig, and the proponent--assuming her testimony was admissible--were so contradictory and unsatisfactory that the trial court 'couldn't give it any credence.'

It is conceded that Salo was a competent witness. See In re Hatfield's Will, 21 Colo.App. 443, 122 P. 63; White v. Bower, 56 Colo. 575, 136 P. 1053, Ann.Cas.1917A, 835; Norris v. Bradshaw, 92 Colo. 34, 18 P.2d 467. However, counsel for caveators insist that his testimony was excluded by stipulation, and this contention raises the determinative issue in this case, because if the trial court did not commit reversible error in setting aside or ignoring the stipulation, then we must sustain his conclusion in light of the fact that Salo's testimony is corroborative of that of subscribing witness Hawkins and sustains the will as having been properly executed.

We think the reason given by the trial court for setting aside the stipulation is helpful here. He said:

'That is one reason why I permitted other testimony--I wanted to know the facts. I realized Mr. Salo and Mrs. Salo don't understand English so very well. She was not a competent witness in the first place. But her testimony as a whole is so contradictory. Now, she may not have understood what she was talking about. It is so contradictory, I couldn't give it any credence. And I will have to treat Mr. Craig's testimony in the same way. And I will have to sustain this will from the testimony of Mr. Hawkins and Mr. Salo.

'I have known all the time that there were other witnesses there--other persons. It is true that counsel selected their witnesses in the county court; and stipulated I was bound by it. But the court didn't feel that he was bound by it, under which it was submitted to the court--in other words, I believed it was prejudicial to the provisions of the will. And the stipulation being to her detriment, in my opinion, I doubt if her attorney had any right to make the stipulation under the circumstances. And so I tried to pursue a course here by which I could in some way find out the truth of the matter. And it now develops from the testimony of Mr. Salo and Mr. Hawkins that the will was executed according to the law; and will be sustained.'

It is urged that counsel for caveators are estopped to raise this question because the court's order also permitted them to use Craig's testimony, and they argue convincingly in support of their contention. However, it is unnecessary for us to decide the point, because the law is established that the court--in relation to probating wills--is not bound by stipulations of counsel under circumstances such as exist here. The statute itself surely permits, if it does not compel, the court to make inquiry concerning proper execution of wills. ' 35 C.S.A. c. 176, § 56. See, also, Shaffer v. District Court, 102 Colo.

148, 153, 77 P.2d 649. In the absence of such a statute, relief against such stipulations rests in the sound discretion of the court. 60 C.J. p. 94. 'In a stipulation by counsel for convenience or expedition [that was clearly the purpose of the stipulation in the case at bar] in the trial of a case, if counsel, inadvertently or otherwise, admit or state a fact not in accord with the premises, entirely against the manifest purpose and intention of the parties, and the nature of the controversy, and to the irreparable injury of the client they represent, as this seems to be, the court wherein such cause is pending has the power, and rightfully exercises it, to relieve the party from such stipulation.' Welsh v. Noyes, 10 Colo. 133, 145, 14 P. 317, 323.

One cannot read the testimony admitted under the stipulation without being impressed with the reaction of the trial judge as recited in his findings, and we are persuaded that he did not abuse his discretion in modifying or abrogating the stipulation to the extent of permitting Salo to testify.

This brings us to the consideration of the problem of whether the evidence given by Hawkins and Salo sufficiently supported the court's finding that the will was properly executed, because if it did, even though the evidence was conflicting, the judgment must be affirmed. Wagner v. Heldt, 93 Colo. 442, 26 P.2d 813.

The record shows that on May 25, 1936, Hilma Maikka, testatrix, age 58, together with her daughter (proponent) and son-in-law, Mr. and Mrs. Elmer Salo, called at the office of Mr. Hawkins for the purpose of having Mrs. Maikka's will drawn. Mrs. Maikka was of Finnish descent and could speak but little English. However, she made it clear to Hawkins in broken English and through her daughter's translation that 'she wanted to make a will,' and that she did not want 'to leave the boys anything.' Hawkins testified: 'I told her it would not make a legal will--that she had to mention the boys--leave them something * * * I told her she would have to will them at least a dollar. And she said: 'Well, put it in that way.' * * * She said she wanted to leave it all to her daughter. * * *

'Q. And you drew the will that way? A. Yes, sir. * * *

'Q. * * * Was it read to her in English * * * A. It was read to her in English. * * *

'Q. Who read it to her in English? A. I did. * * *

'Q. And what did she say? A. Well, she said it was all right.

'Q. Who was present? ...