In re Shapter's Estate

• Decision Date: 04 December 1905
• Citation: 85 P. 688,35 Colo. 578
• Parties: In re SHAPTER'S ESTATE.
• Court: Colorado Supreme Court

85 P. 688

35 Colo. 578

In re SHAPTER'S ESTATE.

Supreme Court of Colorado

December 4, 1905

Rehearing Denied April 2, 1906.

Appeal from District Court, Arapahoe County; John I. Mullins, Judge.

Proceeding for the probate of the will of Edward Shapter, deceased. From a judgment denying probate, proponents appeal. Reversed and remanded.

On March 1, A. D. 1901, an instrument purporting to be the last will and testament of Edward Shapter, deceased, was presented to the county court of Arapahoe county for probate. A caveat was filed by several of his heirs objecting to its probate. On the 30th of July, A. D. 1901, after hearing the testimony of the attesting witnesses and the family physician, the court admitted the will to probate and record. An appeal from this judgment was taken by the contestants to the district court of Arapahoe county. On the 26th day of May, 1902, the cause came on for trial before a jury. After the evidence was introduced, the jury, by direction of the court, rendered a verdict for contestants. On June 6th motion for new trial was overruled and judgment entered upon the verdict denying the probate of the will. Proponents bring the case here on appeal.to information acquired in attending the patient objections to the competency of an attorney or physician can be raised only by the client or patient.

Thomas, Bryant & Lee and Edwin W. Parks, for appellants.

S.E Robinson and Andrew W. Gillette, for appellees.

GODDARD, J. (after stating the facts.)

The most important objection to the validity of the judgment presented by the assignment of errors is predicated upon the action of the trial court in directing a verdict. From an examination of the testimony introduced, we are of the opinion that there was evidence upon which the jury should have been permitted to pass, and which, if accepted by them as true, was sufficient to sustain the conclusion that the instrument presented was executed in conformity with the requirements of the statute, and with sufficient knowledge and understanding on the part of the testator to constitute a valid testamentary disposition of his property. In the circumstances of this case, it was peculiarly within the province of the jury to determine whether the testator notwithstanding his enfeebled condition at the time the paper was signed, realized what he was doing. This essential fact could only be ascertained by taking into consideration not only the direct proof, but as well all collateral and relative facts and surrounding circumstances that tended to throw light upon the mental capacity of the testator at that time, and from which inferences might be drawn and presumptions raised as to whether or not he was mentally capable of making a will, and whether the disposition made of his property was consistent with his situation and in accordance with his previously expressed wishes and intentions, and such as he would naturally make under the circumstances, or adopt, or acquiesce in, if not wholly deprived of consciousness. In Brogden v. Brown, 2 Addams, Eccl. Rep. 449, the will under consideration was prepared by Mr. Brogden in pursuance of instructions which, it was pleaded, the testatrix gave him in an interview at which they alone were present, and which, it was claimed, was signed by her while delirious and incapable. Brogden, being a party in the cause, was incompetent to testify as to the instructions; hence they were incapable of direct proof. Sir John Nicholl, in speaking of the presumptions that prevail in such circumstances, used this language: 'The rule that, where capacity is at all doubtful, there must be direct proof of instructions, * * * has really no application to a will prepared by an agent, * * * and of which at the same time, the dispositive part is so just, and so proper, so consonant to the deceased's natural affections, and moral duties, that it speaks for itself, and carries, upon the face of it, its own recommendation. Such an alleged will, if suggested, the court may readily presume that the alleged testator would acquiesce in, and adopt, if not wholly deprived of consciousness; and mere acquiescence and adoption, in such a case, would so compensate for any want of direct evidence of instructions given, a priori, that proof of these alone, in conjunction with proof of almost any, whatever, glimmering of capacity at the time of the execution, would be good to support the will, and would sufficiently indicate mind and volition to justify a court of probate in pronouncing for it as a genuine and valid will.' As said by Senator Verplanck in Stewart's Executor v. Lispenard, 26 Wend. (N.Y.) 313: 'If the testamentary disposition be in itself consistent with the situation of the testator, and in congruity with his affections and previous declarations; if it be such as might have been naturally expected from one so situated, this is itself rational and legal evidence of no small weight to testamentary capacity. * * * The rationality of the act goes to show the reason of the person. This rule has been repeately applied in English courts in cases of doubtful capacity, from age or deathbed disease.'

The instrument under consideration possesses all these characteristics. The disposition of the property therein provided is consistent with, and such as would naturally be expected from, a man in the situation of the testator. He had lived in this country for many years, was unmarried, and it in no way appears that the contestants, although his relatives and heirs, ever concerned themselves about his welfare and condition. On the other hand, some of those remembered in the will had shown him kindness and attention when sorely needed. And others are of a class whose care and comfort would naturally appeal to the sympathy of an old man who was desirous of devoting his property to a worthy charity. From the fact that the will was prepared at the testator's express request, that the instrument so prepared was left with him and was in his possession several hours before it was alleged to have been executed, and that he signed it in the presence of attesting witnesses who were present at his request for that purpose, in the absence of any showing to the contrary, it will be presumed that he had read it, or that its contents had, in some way, been made known to him. 'The onus of proving the contrary is thrown upon him who alleges it.' Hemphill v. Hemphill, 2 Dev. (N. C.) 291, 21 Am.Dec. 331. 'Generally speaking, the law presumes testamentary capacity, due execution, and that the will contains the unrestrained wishes of the testator. Hence it usually held that the burden upon the whole evidence is on the party attacking it on the ground of improper execution, lack of capacity, or undue influence, to prove the facts which he alleges.' Current Law, vol. 4, p. 1892, and cases cited in note.

But it is insisted that, if the instrument was, in fact, written at the direction of Shapter and embodied his instructions, it should be refused probate for the reason that it was not executed or attested in the manner required by our statute. In support of this contention, counsel for contestants cite excerpts from the testimony of the attesting witnesses, which they claim show that Shapter was not conscious of what he was doing at the time his name was affixed to the instrument, and that the signatures of attesting witnesses were subscribed to the will before the signature of Mr. Shapter was made. We think, from the entire testimony introduced upon the trial the jury might have found that the deceased was aware of what he was doing, and assented to the manner in which his...