In re Mickich's Estate

• Decision Date: 05 March 1943
• Docket Number: 8315.
• Citation: 136 P.2d 223,114 Mont. 258
• Parties: In re MICKICH'S ESTATE. v. TUSS et al. TUSS et al.
• Court: Montana Supreme Court

136 P.2d 223

114 Mont. 258

In re MICKICH'S ESTATE.

TUSS et al. v. TUSS et al.

No. 8315.

Supreme Court of Montana

March 5, 1943

Rehearing Denied April 19, 1943.

Appeal from Eighth Judicial District Court, Cascade County; H. H Ewing, Judge.

Proceeding in the matter of the estate of Nicholas Mickich, deceased wherein August Tuss and others were proponents of deceased's alleged will which was contested by Philip J Tuss, as administrator of the estate of Nicholas Mickich deceased, and others. From a judgment for contestants, the proponents appeal.

Affirmed as modified.

Emmett C. Angland, W. J. Tighe, and E. J. Stromnes, all of Great Falls, for appellants.

H. R. Eickemeyer, of Great Falls, and H. Leonard DeKalb, of Lewistown, for respondents.

ANDERSON Justice.

This is an appeal from the judgment entered in a will contest tried with a jury. There were two grounds of contest, first, that the deceased, because of weakened mental condition resulting from illness, was not competent to make the will, and, second, that he was unduly influenced by others to make the will.

The case was submitted to the jury on two special interrogatories. In answer to the first the jury found the testator mentally incompetent to make the will, which made unnecessary any consideration of the second as to undue influence. The court adopted the jury's verdict and entered judgment thereon denying probate of the will. Proponents of the will moved for a new trial on the ground of insufficiency of the evidence to support the verdict, error in the trial of the case, and newly discovered evidence. The motion was denied. The appeal is from the judgment.

The illness from which Mickich was suffering at the time the will was made commenced as a throat ailment on May 13, 1941, a bad case of tonsillitis developing rapidly into streptococcus infection which spread into the blood stream and became general throughout his system. He was taken to the Columbus Hospital at Great Falls where he was under the care of doctors and nurses until the time of his death which occurred on May 27th. The will was made at the hospital on May 20th. There was no question of the seriousness of his condition from the time he was taken ill until his death, with pain and suffering and physical weakness resulting therefrom. Also there seems to have been no question but that his mental faculties were progressively weakened in the course of the illness. The question was as to what extent his mental capacity had been lowered, and whether, at the time he signed the will, his mental condition was such that he knew and understood what he was doing and was able to give thought to and make determination as to the disposition of his estate.

The instrument which was offered to probate has every appearance of regularity as a duly executed will. It bears the name of the testator as if regularly subscribed and has a full and complete attestation clause, signed by three witnesses--Mr. Tighe, the attorney who drew the will, and two nurses at the hospital where the will was made, Virginia Walker and Maxine McNisson. The will disposes of the whole estate, giving two-thirds thereof to Steve Mickich, a cousin of the second degree, and the remaining one-third divided equally between Mrs. Antonich, Walter Tuss and August Tuss, none of whom were related to the testator.

Mickich was a bachelor, fifty-three years old, of foreign birth, a Croatian, and had been in this country since about the time he was of age. At the time of his last illness and death he owned and operated a beer parlor at Black Eagle, near Great Falls. His estate was estimated by witnesses as of the value of approximately $30,000. He had only distant relatives and none of those in close association with him excepting Steve Mickich, of Anaconda. Upon first coming to Montana in 1915, Steve had befriended him when in circumstances of need, and a close, friendly relationship had continued between them. Steve is the principal beneficiary named in the will. The other beneficiaries were close friends, August Tuss being an acquaintance of his boyhood days, and Walter Tuss, a son of August. Mrs. Antonich was the wife of a close acquaintance. The contestants are surviving nieces and nephews of the half blood who would take as heirs at law.

The principal witnesses for the contestants were Mrs. Virginia Walker, a nurse who attended the deceased throughout his last illness, and Dr. Irwin, the attending physician. They both testified that Mickich was a very sick man when he came to the hospital; that his illness progressed rapidly into more serious stages, with progressive weakening of both mind and body; and that at the time the will was made, on May 20th, he was overcome by illness to such extent as to be utterly helpless physically, with his mental faculties and sensibilities dulled to such extent that it was impossible to get any intelligent response to conversation or questions spoken to him. Several other witnesses testified to seeing Mickich on the day the will was made, and on days immediately preceding and following; that he was very sick and unable or not inclined to carry on conversation, and that they were unable to get any response on matters they undertook to discuss with him.

For the proponents of the will several witnesses testified to seeing Mickich on the day the will was made, and said he was very sick and did not talk much, was slow to respond when spoken to but did respond intelligently. Mr. Tighe, the attorney who drew the will and attended to its execution, said that he talked with Mickich immediately before the will was drawn; that Mickich then said that he wanted to make a will. Questioned as to the disposition he wished made of the estate, he first mentioned Steve Mickich, saying that he lived in Anaconda. Asked whether he wanted it all to go to Steve, he mentioned Frank Antonich and changed that to Frank Antonich's wife. Asked whether he wanted it all to go to them, he then mentioned Gus and Walter, and explained he meant August Tuss and his son Walter. When asked as to the division to be made, he said he wanted two-thirds to go to his cousin, Steve Mickich, and the rest of it to go to Mrs. Antonich and to the two Tusses in equal proportions. He said he wanted to name August Tuss as executor to serve without bond. Mr. Tighe said he had not known Mickich until he came to the hospital to prepare the will; that he had never had anything to do with his affairs until the interview then at the hospital.

Mrs. Walker, the nurse, was present when the will was made, and testifying for the contestants, she related what took place as follows: She said that Mr. Tighe, the attorney, came to the hospital about 7 in the evening on May 20th to see about making a will. After a half hour in the room with Mickich he called her in to assist, saying he could get no satisfactory response. She tried to talk with Mickich about the will but could get no expression from him. Unable to get any statement from him she and Mr. Tighe then suggested to him those to whom he might leave his property. His response to each such suggestion was "I guess so"; she stated that the will as made was in accordance with suggestions from them, and the only assent of Mickich thereto was "I guess so." She said that at no time in her hearing did Mickich say he wanted to make a will or how he wanted to dispose of any of his estate. She said that after the will was prepared, the portions thereof disposing of the property were read aloud to Mickich. It was laid before Mickich and with her assistance, guiding his hand, he wrote his name thereon without saying anything. Mrs. Nisson, another nurse, was then called in to act as a witness. There was difficulty in getting any request from Mickich that they witness the will. August Tuss was called in to assist. He told Mickich he must ask the witnesses to sign, that he must say "Yes" and he said "Yes." The three of them--Mr. Tighe, Mrs. Walker and Mrs. Nisson--then signed as witnesses.

Both, Mrs. Walker and Mrs. Nisson, testified that neither of them read the attestation clause, nor was it read to them.

The case so presented left a clear question of fact for determination. The evidence on either side, if taken alone, was amply sufficient to sustain the contention it was sought to uphold. The witnesses were all positive in their statements and testified directly as to facts material to the case. The evidence on each side was substantial, with a direct conflict in its bearing on the question at issue.

In their attack on the contestants' case as made, appellants contend that the testimony of Dr. Irwin and the testimony of Mrs. Walker, neither is entitled to full credence, leaving contestants with no substantial evidence to support the verdict and judgment. They contend, on the other hand, that the testimony of Mr. Tighe, the attorney, is entitled to more than ordinary weight, and, supported by other witnesses, it gave the proponents substantial proof of their contentions as against the lack of any substantial proof on behalf of the contestants. On that basis they specify error in the adoption of the verdict and the entry of judgment thereon. We see no merit in this contention.

As to the testimony of Dr. Irwin appellants say that he did not qualify as an expert on mental disorder and that he was evasive of the question of the mental competency of the testator. We think Dr. Irwin was peculiarly well qualified to testify as to the mental competency of the deceased. In addition to his personal knowledge of the case, it was shown that he had had forty-five years of experience in the practice of medicine and surgery; and that in such general practice he had had experience with many patients who were mentally deranged and mentally...