In re Newell's Estate

• Decision Date: 27 August 1931
• Docket Number: 5027
• Citation: 5 P.2d 230,78 Utah 463
• Parties: In re NEWELL'S ESTATE. NEWELL v. BRADLEY et al
• Court: Utah Supreme Court

5 P.2d 230

78 Utah 463

In re NEWELL'S ESTATE.

NEWELL v. BRADLEY et al

No. 5027

Supreme Court of Utah

August 27, 1931

Rehearing Denied November 17, 1931.

Appeal from District Court, Third District, Salt Lake County; D. W Moffat, Judge.

Will contest by William Newell, also known as William H. Newell Jr., an incompetent, by F. B. Cook, his guardian ad litem against William M. Bradley, as executor of the last will and testament of Henry Newell, deceased, and others. Judgment for plaintiff, and defendants appeal.

REVERSED, and a new trial granted.

Ingebretsen, Ray & Rawlins and Bagley, Judd & Ray, all of Salt Lake City, for appellants.

Gustin & Pence and J. W. Ensign, all of Salt Lake City, and J. H. Peterson, of Pocatello, Idaho, for respondent.

STRAUP, J. ELIAS HANSEN, FOLLAND, and EPHRIAM HANSON, JJ., concur. CHERRY, C. J., concurring in the result.

OPINION

STRAUP, J.

Henry Newell, a resident of Salt Lake City, Utah, died testate in May, 1928, leaving an estate of about $ 450,000. His wife, Rose Newell, died in 1918, about ten years before his death. The controversy involves the question of whether the respondent was a surviving heir, and, if so, whether he was intentionally or unintentionally omitted from the will. The claim in such respect of William Henry Newell, Jr., an incompetent, the plaintiff and the respondent, is that he was a grandson of the testator; that no mention was made of him in the will and no provision therein made for him, and that he was unintentionally omitted from the will. All that was denied by the executor and legatees of the will.

The case was tried to a jury who, by a general and a special verdict, found the issues in favor of the incompetent, the plaintiff in the case. The court also made findings in harmony with the general and special verdicts and rendered judgment in favor of the plaintiff for a one-half interest in and to the estate and ordered the assets thereof to be so distributed. The defendants, the executor and legatees of the will, prosecute this appeal.

Numerous errors are assigned involving rulings of the court overruling the defendants' motions for a nonsuit and to direct a verdict, exceptions taken to portions of the charge to the jury, and rulings made in admitting and rejecting evidence. Assignments also are made with respect to the findings and conclusions of the court and the judgment.

The testator made two wills, one in 1922, the other March 6, 1925, which was admitted to probate in July, 1928. The validity of the will is not questioned. In March, 1929, the executor filed a final account and a petition for distribution praying that the assets of the estate be distributed to the legatees mentioned in the will and in accordance with its provisions. The legatees consist of about thirty or more nephews and nieces of the testator, children of his deceased sisters, and children of deceased sisters of his wife, to each of whom bequests of money were made. A bequest of $ 10 was made, as stated in the will, to one "William H. Newell now residing in New York City, who was raised in my family." A substantial devise was also made to trustees for the use and benefit of Harry N. Newell. The principal residue of the estate was then devised and bequeathed to trustees of Leland Stanford, Jr., University of Palo Alto, Cal., to be known as "The Henry Newell Scholarship," fund, for the use and benefit of young men and women of Utah, who attending such university show excellence in college work.

William Henry Newell, Jr., an incompetent (not the William H. Newell to whom the $ 10 bequest was made in the will), through his guardian ad litem, objected to and contested the distribution of the estate as prayed for by the executor and as provided by the will, on the alleged grounds that the William H. Newell to whom the $ 10 bequest was made was the illegitimate child and the only issue of the testator, Henry Newell, born out of lawful wedlock in New York City about the year 1876; that when William H. Newell was less than one year of age, Henry Newell received him in his family as his son with the consent of his wife and publicly acknowledged, treated, and regarded him as his legitimate child, and that thereby William H. Newell in law became the legitimate child of Henry Newell; that the contestant, William Henry Newell, Jr., was the son of William Henry Newell mentioned in the will, born in lawful wedlock in June, 1898, at Pocatello, Idaho, and the only issue of the marriage between William Henry Newell and Angie Rich in about 1896, and therefore he was the grandson and lawful heir of the testator Henry Newell; that William H. Newell, the father of William Henry Newell, Jr., died in February, 1924, about two years after the first will and about a year before the last will was executed, and about four years before the testator died; that the marital relation between William Henry Newell and Angie Rich Newell was dissolved in about 1901; that thereafter William Henry Newell remarried, and that Harry N. Newell was the lawful and only issue of that marriage, and thus was the half-brother of William Henry Newell, Jr., and a grandson of the testator; that William Henry Newell, Jr., and Harry N. Newell were the only surviving heirs of the testator when the last will of 1925 was executed and when the testator died; and that while Harry N. Newell was mentioned in the will and a substantial devise made to him, yet no mention was made in the will of William Henry Newell, Jr., and no provision therein made for him. Hence, the claim is made that he was unintentionally by the testator omitted from the will; and that he, therefore, under the statute (Comp. Laws Utah 1917, § 6341), was entitled to have distributed to him a one-half interest in and to the estate.

The executor and all of the legatees of the will denied all of the material allegations of the contestant, especially the allegations that William Henry Newell mentioned in the will was the illegitimate or legitimate son of Henry Newell, the testator, or that he had ever recognized or acknowledged him as his child, or that he was the father of William Henry Newell. In such particular it was in substance alleged by the defendants that William Henry Newell, when less than one year of age, was received in the family of Henry Newell and was reared until manhood by the testator and his wife, but that he was not the son of either the testator or of his wife; that he was merely received in their family and was reared by them, and as in effect stated by the testator in his will.

The defendants further alleged that in February, 1922, the testator executed and published his then last will and testament, which was in every respect identical with the will executed by him in March, 1925, except as to dates and a change made as to one of the trustees mentioned in the first will; that it was recited in the second will that the testator was satisfied with the first will in every particular, and that the only change made therein was as to one of the trustees mentioned in the first will; that when the first will was made, William Henry Newell, the alleged father of the contestant, was alive and was living in New York City; and that the same recital was contained in the first will as in the second as to the bequest made to "William Henry Newell, now residing in New York City, who was raised in my family."

The jury by their special verdict found that William Henry Newell mentioned in the will was the illegitimate son of Henry Newell, the testator; that he was publicly acknowledged by him as his son and as such was received by him in his family with the consent of his wife; that William Henry Newell, Jr., the contestant, was the legitimate son of William Henry Newell mentioned in the will; and that the omission to mention William Henry Newell, Jr., in the will, or to provide for him by the testator, was due to "accident or mistake." The court also made findings and conclusions to the same effect, and adjudged and ordered the executor to distribute a one-half interest in and to the estate to the contestant William Henry Newell, Jr.

Henry Newell and his wife, Rose Newell, were married in New York City, where they then resided and where he was engaged in business. Several years after their marriage, and not having any children of their own, they, in New York City, took and received in their family William Henry Newell mentioned in the will when he was less than one year of age. Several years thereafter Henry Newell and his wife with the child left New York and went to Park City, Utah, where, and in Salt Lake City, they resided most of their married life and until the death of Rose Newell in 1918. In Park City Henry Newell for a number of years was engaged in the butcher and in the mining business. There William Henry Newell lived in their family until he was a young man and was married to Angie Rich at Coalville, Utah, in about 1896. They thereafter as husband and wife lived together at Pocatello, Idaho, where, in 1898 William Henry Newell, Jr., the contestant, was born as the only issue of the marriage. About two years after the birth of William Henry Newell, Jr., his father deserted Angie Rich Newell, and in 1901 she obtained a divorce from him. The child, William Henry Newell, Jr., remained in her custody and was supported by her. She remarried twelve or fifteen years prior to the death of Henry Newell, the testator. Until then she lived most of the time in Pocatello with her parents. She, as she testified, made visits to Salt Lake City and to Park City where she had relatives and with the child on various occasions visited Henry Newell and his wife who, as she testified were fond of the child, called it their grandson, and purchased clothing and a...