In re McCoy's Estate

• Decision Date: 04 January 1937
• Docket Number: 5754
• Citation: In re McCoy's Estate, 63 P.2d 620, 91 Utah 212 (Utah 1937)
• Parties: In re McCOY'S ESTATE. v. COOPER THEILIG
• Court: Utah Supreme Court

63 P.2d 620

91 Utah 212

In re McCOY'S ESTATE.

THEILIG v. COOPER

No. 5754

Supreme Court of Utah

January 4, 1937

Appeal from District Court, Fourth District, Uintah County; Abe W Turner, Judge.

Proceeding in the matter of the estate of Sarah C. McCoy also known as Kate McCoy, deceased, wherein Ellen Theilig contested the decision of R. C. Cooper to probate a will alleged to have been made by deceased. From a judgment refusing to admit the will to probate, R. C. Cooper appeals.

AFFIRMED.

Wallace Calder, of Vernal, for appellant.

Ray E Dillman, of Roosevelt, and Dallas H. Young, of Vernal, for respondent.

EPHRAIM HANSON, Justice. ELIAS HANSEN, C. J., and FOLLAND, MOFFAT and WOLFE, JJ., concur.

OPINION

EPHRAIM HANSON, Justice.

The proceeding before us involves the contest of a petition to probate a will alleged to have been made by Sarah C. McCoy, also known as Kate McCoy. Mrs. McCoy died December 30, 1934, at the age of 92 years. She was a resident of and owned real and personal property in Uintah county. Utah, at the time of her death. The appellant, R. C. Cooper. shortly after her death, filed a petition in the district court of Uintah county praying for the admission to probate of an instrument which he alleged was the last will and testament of Mrs. McCoy, he being named therein as executor. Under the provisions of this alleged will, Mrs. McCoy left $ 1,000 to her sister Ellen Theilig and the rest of her property to her niece Nellie Holder. In due time Ellen Theilig filed written objections to the admission of said will to probate. The matter was then set for trial and was tried before the court sitting without a jury. The court found in favor of the contestant and refused to admit the will to probate. Mr. Cooper, proponent of said will, has appealed to this court from that decision.

We quote so much of the findings of fact made by the trial court as is pertinent to the issues here before us:

"4. That said purported will offered for probate, was made on the 25th day of December, 1934, and the Scrivener who made said purported Will, was called to decedent's home and to her bedside by the husband of the principal beneficiary, Nellie A. Holder;

"5. That at the time said purported Will was made, the said Sarah C. McCoy was not of sound and disposing mind and memory and she was unable to comprehend the purpose or the nature of the business that was then being transacted or the purpose or consequences thereof and was unable to know what was then being done;

"6. That the affixing of the signature, of the said Sarah C. McCoy, on said purported Will, was not the free and voluntary act of the said Sarah C. McCoy, and that said Will was not signed by the attesting witnesses at her request."

In order to avoid repetition, we shall proceed to a discussion of the various assignments of error urged by appellant without first going into the evidence. In her brief, respondent has made the bald conclusion that the abstract filed herein by appellant is wholly insufficient under the rules of this court, and does not attempt to offer any argument or assistance with respect to some of the most vital issues before us. True, the abstract is not so complete as it might be, but certainly respondent is not warranted in assuming that appellant, because he filed such an abstract, thereby waived all assignments of error and his objections to the sufficiency of the evidence to sustain the findings made by the trial court. We think the objections raised by appellant's assignments of error are properly before us and shall proceed to dispose of the same.

Appellant contends that finding No. 5, above quoted, and that part of finding No. 6 which finds that the affixing of the signature of Mrs. McCoy on said will was not her free and voluntary act, are findings on matters not put in issue by contestant's written objections. The first ground of contest alleges, in effect, that when said will was made decedent had been for several days prior thereto suffering intense pain and had been administered narcotics and sedatives, and because thereof her mind was affected and she was unable to recognize people and relatives who were known to her for many years; that Mrs. L. C. Pearce urged her to make a will, but when the purported will was made, decedent was unable to originate an idea and her only power of expressing a wish and her only mode of communication was by adopting suggestions made by those who attended her when the will was drawn; that said will was not the free and voluntary act of decedent, but was made at the suggestion of Mrs. Pearce at a time when the mind of decedent was deadened and benumbed by administration of drugs and narcotics, and because of this decedent was unable to comprehend the nature or value of her property or to understand to whom she was devising and bequeathing her property. In his answer to this objection, appellant specifically alleged that "decedent was in possession of her full mental powers and of disposing mind and memory at the time she made said will."

Appellant argues that contestant pleaded undue influence by Mrs. Pearce and not mental incompetency to make a will. With this we cannot agree. All that is alleged with reference to Mrs. Pearce is that she urged the making of a will and the one made was made at her suggestion. This did not amount to undue influence. The burden of the objection relates to the inability of Mrs. McCoy to know what she was doing, to originate or be responsible for any idea, and to know the value or nature of her property or to understand to whom she was devising and bequeathing it. According to the allegations she could only follow the suggestions of others and her mind, at the time, was benumbed by narcotics and sedatives. That this put in issue the question of her mental competency was recognized by appellant when he answered and specifically alleged she was of sound and disposing mind and memory. While the objection above outlined may not have been as specific and definite as it might have been relative to Mrs. McCoy's mental incompetency at the time the will was made, we believe it sufficient to raise that issue, especially in view of appellant's answer and the fact that the case, to all intents and purposes, was tried upon the theory that that was one of the principal issues.

We also think said objection fairly places in issue the question whether the affixing of Mrs. McCoy's name to the will was her free and voluntary act. If she was incapable of originating an idea and could only express herself by adopting the suggestions of others, then the affixing of her name would not be her free and voluntary act. In addition, it is alleged that the will was not her free and voluntary act. This allegation is broad enough to include within its scope such acts as were to be performed by her to make a will and necessarily would be an allegation that one of the requisites to a valid will, namely, affixing her signature thereto, was not accomplished as a free and voluntary act.

Appellant next urges that the evidence is insufficient to sustain the findings of the court heretofore quoted. In disposing of the issues thus presented, we must bear in mind that this court has held, and is committed to the doctrine, that a will contest, such as is here involved, is a law case, and that this court will not interfere with the findings of the trial court where such findings are supported by substantial evidence. In re Hansen's Will, 50 Utah 207, 209, 167 P. 256; In re Frandsen's Will, 50 Utah 156, 167 P. 362; In re Swan's Estate, 51 Utah 410, 170 P. 452; In re Ford's Estate, 70 Utah 456, 261 P. 15. It is our duty, however, to give the evidence careful scrutiny to determine whether or not there is some substantial evidence to support the findings. In re Hansen's Will, 52 Utah 554, 177 P. 982.

The evidence on the matters covered by the findings of the trial court is conflicting. Mrs. E. R. L. Cooper, a practicing attorney, who prepared the will, testified as follows: In August of 1934, Mrs. McCoy came to her office and said she wanted a will made but did not want it made then. Mrs. McCoy said: "When I am sick I want you to come and take care of my affairs." Nothing was done towards drawing a will until December 25, 1934. On that date Mrs. Cooper went to Mrs. McCoy's home, first about 10 O'clock a. m., and again shortly after noon. Mrs. McCoy was asleep when Mrs Cooper first visited her, but was awake when she arrived the second time. She greeted Mrs. Cooper and spoke about it being Christmas Day. Mrs. Cooper sat on the bed, and in response to questions, Mrs. McCoy stated she was ready to make her will and wanted to leave $ 1,000 to her sister Ellen Theilig, respondent herein, and the rest of her property to her niece Nellie Holder. Cliff McCoy, a stepgrandson of Mrs. McCoy, was sitting by the bed at the time, and Mrs. Cooper testified he verified the $ 1,000 bequest to respondent. Mrs. McCoy was lying on a bed in a room in the west part of the house. This room was practically one with a room to the north, only a sort of archway separating them. A stove and chair stood in the north room just beyond the arch. Leading east from the north room was a hall which led to the kitchen. Mrs. Cooper, after getting the details above mentioned, went to the kitchen and there wrote out a will with pen and ink. She then returned and read the entire will to Mrs. McCoy. She asked her if that was what she wanted and if it was her last will, to which she answered, "Yes." Mrs. McCoy indicated she wanted Mrs. Pearce and Mrs. Glines to sign as witnesses, but, since the latter was occupied in supporting Mrs. McCoy while she was sitting up in bed, the name of Argyle Roper was suggested as a witness. This met her...