In re Swan's Estate

• Decision Date: 08 February 1918
• Docket Number: 2881
• Parties: IN RE SWAN'S ESTATE
• Court: Utah Supreme Court

170 P. 452

51 Utah 410

IN RE SWAN'S ESTATE

No. 2881

Supreme Court of Utah

February 8, 1918

Appeal from District Court of Salt Lake County, Third District; Hon Geo. G. Armstrong, Judge.

Proceeding to probate will of Edward D. Swan, deceased.

From a judgment sustaining the will, the contestant appeals.

AFFIRMED.

Charles Baldwin and Dey, Hoppaugh & Fabian for appellant.

Snyder & Snyder for respondent.

THURMAN J. FRICK, C. J., CORFMAN, J., concurring. GIDEON, J., concurs in the order. McCARTY, J., dissenting.

OPINION

THURMAN, J.

This case was submitted at a former term of this court, and on November 17, 1916, the court, by a majority, filed an opinion in the case reversing the judgment of the trial court. A petition for a rehearing was filed by the respondent. Upon a consideration thereof the court entertained some doubt as to the correctness of its conclusions and granted a rehearing. Since then the membership of the court has been increased by legislative enactment from three members to five, and the case has again been argued by respective counsel at the present term of this court. Two opinions were filed at the former hearing--a majority opinion denying the motion to dismiss the appeal (as to which the court was unanimous), and one reversing the judgment of the trial court, from which a minority dissented and filed a minority opinion. After reargument during the present term we have become convinced that the views expressed, in substance at least, in the minority opinion, above referred to, affirming the judgment should, with some modifications, be adopted as the decision of this court; and to avoid confusion the opinions referred to will not be published, but this opinion will stand and be published as the decision of the cause. The writer feels at liberty, in attempting to express the views of the court, to use literally, or in substance, as he may see fit, such portions of the minority opinion referred to as may be necessary to elucidate the matters in controversy in this proceeding. In view of the conclusion at which the court has arrived respondent's motion to dismiss the appeal, which was wholly without merit, will be passed without further consideration.

On the 30th day of January, 1915, Ulysses Grant Swan filed his petition pursuant to our statute in the probate division of the district court of Salt Lake County, in which he, in substance, alleged that on the 14th day of January, 1915, the father of petitioner, one Edward D. Swan, died testate; that the deceased was a resident of Salt Lake County, Utah, and that he left an estate in said county consisting of real and personal property; that the deceased, on the 2d day of March, 1914, made and published his last will and testament, a copy of which was attached to and made a part of the petition. The names, ages, and places of residence of the several devisees and legatees under the will were also stated. It was also alleged that the deceased left surviving him one Maude A. Blackford, a granddaughter of the deceased, and that she was intentionally omitted from said will as a devisee or legatee because the deceased had in his lifetime given her all the property he intended to bestow upon her. Other necessary allegations are contained in the petition which it is not necessary to repeat here. The petitioner prayed that the will be admitted to probate, etc.

Maude A. Blackford aforesaid, in due time, filed objections to the admission of said will to probate. The material parts of the objections are as follows:

"That this contestant is a granddaughter of said decedent and one of his heirs at law and entitled to share in the distribution of his estate, if said deceased died intestate, but was not mentioned in said will. That at the time when the said decedent in form executed said purported and pretended will he was not of sound and disposing mind. That at the time of signing said purported and pretended will he was unduly influenced, and was prejudiced against this contestant. That said instrument in writing was obtained and execution thereof procured by fraud and circumvention and undue influence practiced upon the deceased by his son Ulysses G. Swan, or some one in his behalf. That this contestant is informed and believes said instrument purporting to be the last will of said deceased was not executed in the manner and form required by law."

An answer was duly filed by the proponent to the objections of the contestant in which the objections were denied and in which answer the reasons why the contestant was not mentioned in the will, and that her omission therefrom was intentional on the part of the testator, are more fully set forth. A trial to the court without a jury resulted in findings of fact, conclusions of law, and judgment sustaining the will, and the contestant appeals.

The court, after making some formal findings, continued its findings thus:

"That at the time when said decedent executed the said paper as and for his last will and testament, to wit, the 2d day of March, 1914, he was of sound and disposing mind, and was not laboring under any duress, menace, fraud, or any undue influence, nor was he in any respect unduly or otherwise influenced in relation to the execution of said will by any person or persons whomsoever. That in and by the execution of said will there was no prejudice manifested or existing against said Maude A. Blackford, either by or on behalf of said decedent, or influenced thereto by any person."

After finding that the will was duly executed and witnessed as required by our statute the court further found:

"That said instrument in writing, to wit, said last will and testament, was not obtained, and the execution thereof was not procured by fraud or circumvention, or any undue influence practiced, or attempted to be practiced, upon the deceased by his son, Ulysses Grant Swan, or by any other person or persons in behalf of said Ulysses Grant Swan or otherwise."

The contestant assails the findings we have set forth above upon the ground that they are not supported by the evidence, and that they are against "the great preponderance and weight of the evidence."

The testator, at the time of this death, was eighty-four years of age, and at the time he made the will in question was eighty-three years old. He left surviving him his widow, one son (the proponent), the contestant (a daughter of a deceased son), W. Dee Stone (a grandson), a sister, and perhaps several other relatives. Excepting the proponent all the children of the deceased died before he did. The important questions to be determined are: (1) Was the testator of sound and disposing mind, that is, did he possess the required legal capacity to make a will and thereby dispose of his property at the time the will in question was made and published? and (2) was the said will "procured by fraud and circumvention and undue influence" as alleged by the contestant? As we view the evidence in the case the latter question presents no difficulty whatever, and therefore may be summarily determined. For that reason we will dispose of that question now.

The evidence wholly fails to show that the will in question was procured by undue influence, fraud or circumvention, or by unfair or illegal means employed by or on behalf of any one. On the contrary, it affirmatively appears, as far as the evidence discloses anything relating to that subject, that the testator was not unduly, or at all, influenced by any one in what he did respecting the making of the will. Contestant's objections to the finding of the court relating to that question must therefore fail.

Upon the other branch of the case, namely, the mental condition and legal capacity of the deceased at the time the will in question was made, the evidence is quite voluminous. The undisputed facts are to the effect that at the time the will in question was made the deceased was eighty-three years of age; that he then was afflicted, and for a number of years had been suffering, with hardening of the arteries and with some disease of the kidneys, and by reason of that fact his physical health had for some time been failing and his mind was more or less affected, and at times he had spells of unconsciousness lasting several hours at a time; that the spells aforesaid usually occurred about a month apart, and at times a little oftener; that when the spells were over his mind usually was clear enough to transact, at least, ordinary business, and he continued to transact business, such as collecting his rents, which amounted to about $ 1,200 per month, and depositing the money in the bank up to about the time he made the will in question; that the terms of the will were written out in longhand informally by the testator himself, and he took the writing to the scrivener, whom he requested to put it in proper form in accordance with the directions in the informal writing, which was done; that the same scrivener had previously made at least three wills for the testator, and had transacted business for and with him for about twenty-five years; that as soon as the will was written out in typewriting, the testator called in two of his friends of about twenty-five years' standing, with both of whom he had transacted much business, and asked them to sign the will as witnesses, which they did; that the last will was made principally for the reason that in the will preceding the last one the testator had not provided for his wife in accordance with the provisions of our statute and he had been advised by a lawyer friend that that will was "illegal." In the last will, therefore, the wife was given her statutory share. The will was also changed in a few minor matters. Prior to the making of the will in question the testator had...