In re Shell's Estate

• Citation: 63 P. 413,28 Colo. 167
• Parties: In re SHELL'S ESTATE.
• Decision Date: 17 December 1900
• Court: Supreme Court of Colorado

63 P. 413

28 Colo. 167

In re SHELL'S ESTATE.

Supreme Court of Colorado

December 17, 1900

Appeal from district court, Arapahoe county.

In the matter of the estate of Samuel Shell, deceased. From a judgment of the district court affirming a judgment of the county court admitting the will to probate, contestants appeal. Affirmed.

George W. Miller and Daniel Sayer, for appellants.

Rising & Marshall, for appellees.

CAMPBELL C.J.

This is an appeal from a judgment of the district court of Arapahoe county in proceedings on appeal from the county court in which the will of Samuel Shell, deceased, was admitted to probate. Objection to the probate was upon the ground of the mental incapacity of the testator, and undue influence over him exercised by his wife, the proponent and executrix of the will. On full hearing the instrument was adjudged valid in both courts. No question is raised in the briefs as to testator's mental capacity, and under the evidence no reasonable charge of that kind could be sustained. That feature of the case is therefore eliminated. A careful reading of the evidence preserved in the bill of exceptions satisfies us that there is no legitimate testimony by a competent witness, other than that given by Mrs Chandler, upon which, by the utmost stretch of the imagination, an argument can be based to sustain the charge of undue influence; and, when her testimony is subjected to sound rules of evidence, it will be found that it is lacking in essential elements. It is true that some of the contestants (those directly interested in the will) were produced, and an attempt (which was thwarted by the ruling of the court) made to elicit testimony of this sort; but such testimony, even if admitted, was incompetent, under our statute, and not worthy of serious consideration, even if the ban of the statute did not exclude it. Strictly speaking 'fraud' and 'undue influence' are not synonymous expressions. Undue influence is, in one sense, a species of fraud; and while there are sometimes, perhaps usually, present elements of fraud, undue influence may exist without any positive fraud being shown. Opposing counsel do not differ as to what constitutes undue influence, or the rule governing the admission of evidence to sustain it; and it is only respecting the character and admissibility of evidence introduced and rejected, and the application of the law to the facts, that they disagree. In the case of Clough v. Clough, 15 Colo.App. ----, 51 P. 513, although the requirements of the decision may not have called for the announcement, yet the statement of the rule found in the opinion governing the admission of evidence upon such an issue is substantially correct. The court says: 'A charge of undue influence is substantially that of fraud, and it can seldom be shown by direct and positive evidence. While it is true that it must be proved, and not presumed, yet it can be, and most generally is, proven by evidence of facts and circumstances which, as to themselves, may admit of little dispute, but which are calculated to establish it, and from which it may reasonably and naturally be inferred.' And it was also said that a court 'should be liberal in admitting evidence of all circumstances, even though slight which might tend, in conjunction with other circumstances, to throw light upon the relation of the parties, and upon the disputed question of undue influence.' Applying this test, we are of opinion that the rulings of the district court in rejecting testimony offered by contestants were clearly right. The witness Mrs. Chandler at one time was a member of the family of the testator. He was divorced from his first wife, by whom he had a family of 10 children. He died December 16, 1897. The will was executed June 26, 1891. The attempt was made to show that while testator was living with his first wife the proponent entered the family circle, and as a result of her machinations an estrangement took place between the husband and first wife, which afterwards led to the divorce, and later to the marriage of proponent and testator. As near as we can ascertain from the meager abstract, the time to which this occurrence relates was about the year 1874 or 1875, and it would seem that the second marriage took place in 1880, or perhaps later. While it is unwise to lay down any hard and fast rule respecting the time to which this class of testimony must relate, we are of opinion that, under the facts of this case, these circumstances were entirely too remote to be brought within the category of evidence tending to establish undue influence. Cases very much in point upon this proposition are Pierce v. Pierce, 38 Mich. 412; Batchelder v. Batchelder, 139 Mass. 1, 29 N.E. 61; In re Langford's Estate, 108 Cal. 608, 41 P. 701; Webber v. Sullivan, 58 Iowa 260, 12 N.W. 319. But, aside from this objection, the testimony was clearly inadmissible because not only was there no offer to show by competent evidence a continuance of any general influence, supposed to be established by this class of testimony, down to or near the time of the execution of the will, but there was no testimony whatever showing that any undue influence was exercised by proponent over the testator concerning the making of the will at or near the date of its execution, or at any other time. Testimony like that rejected, in order to be admissible or to have any weight or significance, must be connected with direct or circumstantial evidence tending to prove that undue influence existed, and that it was exercised at or near the time the will was made. Indeed, none of the proposed evidence tended to show that any influence was exercised at the time the will was executed, and it was properly rejected. Its admission could not be other than prejudicial to the proponent.

2. Another claim of contestants is that the will itself was unnatural; that is, different from what it might have been expected to be. If the testator had a disposing mind, and was free from undue influence, the mere fact that the will might have been otherwise cannot vacate it. But it is not unnatural. To establish this charge, an attempt was made to show that Martha Finn, a child of testator by his first wife was a cripple from infancy, and that no provision in the will was made for any of the children of the first marriage, and particularly none for her. The proposition is that the intrinsic character of the will itself may be considered as evidence showing that it was unnatural, and that it was proper to admit extrinsic evidence to that...