In re Roeber's Estate
| Decision Date | 05 July 1921 |
| Docket Number | 9914. |
| Citation | 70 Colo. 196,199 P. 481 |
| Parties | In re ROEBER'S ESTATE. v. CORDRAY. ROEBER et al. |
| Court | Colorado Supreme Court |
Department 1.
Error to District Court, Delta County; Thomas J. Black, Judge.
In the matter of the estate of Lewis H. Roeber, deceased, wherein Gustave W. Roeber and others were contestants, and Viola Cordray was proponent of the will of decedent. From a judgment for the proponent, the contestants bring error.
Reversed.
M. D Vincent and C. T. Vincent, both of Grand Junction, for plaintiffs in error.
This matter is before us on error to a judgment of the district court in the contest of a will, in which judgment was entered for the proponent. Contest was made upon the ground that the testator did not have testamentary capacity, and that the will was the result of undue influence on the part of the defendant in error, the sole beneficiary under the will.
This court instructed the jury that----
'The burden of proof in this proceeding rests upon the contestants, both on the issue of testamentary capacity and on the issue of undue influence; and, unless you find by a fair preponderance of the evidence either that Louis H Roeber at the time of the making of this will was mentally incompetent to make a will, or that Viola Cordray at that time exercised such influence over him that he was coerced by her into making a disposition of his property contrary to his own inclination and judgment, then the judgment should be to sustain the will.'
Plaintiffs in error contend that this instruction is contrary to the law.
We think this contention is correct.
By offering the will for probate the proponent, in effect asserted that it was executed by Roeber at a time when he was of testamentary capacity. This proposition has the benefit of the presumption of sanity which the law raises. The presumption being one of fact, it is only a matter of evidence, and does not in any sence relieve the proponent of the obligation to establish by a preponderance of evidence the affirmative of the issue tendered. If no evidence to the contrary is introduced, a case is made, but if such evidence be introduced the question then is whether upon the whole evidence, including this presumption, the burden of proving the affirmative has been sustained.
If the evidence be evenly balanced, the finding will be for the contestant. Clifford v. Taylor, 204 Mass 358, 90 N.E. 862; Young v. Miller, ...
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Grobman's Estate, Matter of
...rule that the proponent of a will has the burden of proof and persuasion with regard to testamentary capacity. See Roeber v. Cordray, 70 Colo. 196, 199 P. 481 (1921); In Re Estate of Murphy, 29 Colo.App. 297, 483 P.2d 1364 As an alternative basis for rejecting the holographic will, the tria......
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Murphy's Estate, In re
...prima facie case. The burden rests upon the proponents to establish the mental capacity of the person executing the will. Roeber v. Cordray, 70 Colo. 196, 199 P. 481. This is a substantive question of fact, not a technical one of procedure. As a question of fact, therefore, it is for the tr......