In re Wheeling's Estate

• Decision Date: 23 December 1946
• Docket Number: 32171.
• Citation: 175 P.2d 317,198 Okla. 81,1946 OK 363
• Parties: In re WHEELING'S ESTATE. v. MAXEY et al. SMITH
• Court: Oklahoma Supreme Court

175 P.2d 317

198 Okla. 81, 1946 OK 363

In re WHEELING'S ESTATE.

SMITH v. MAXEY et al.

No. 32171.

Supreme Court of Oklahoma

December 23, 1946

Appeal from District Court, Oklahoma County; Lewis R. Morris, Judge.

Proceeding in the matter of the estate of Charles Frederick Wheeling deceased, wherein H. Truman Maxey and Baptist General Convention for Benefit of Baptist Orphans' Home of Oklahoma City propounded a will which was opposed by Bertha Wheeling Smith. From a decree of the district court of Oklahoma county affirming a decree of the county court admitting the will to probate, Bertha Wheeling Smith appeals.

Affirmed.

Syllabus by the Court.

1. An adjudication of a testator's mental incompetency to manage his property is to be considered in the determination of his testatentary capacity, but such evidence is not conclusive proof thereof.

2. Evidence of a testator's ailing or weakened physical condition is not proof in itself of his testamentary incapacity; in order to constitute such proof, said condition must be shown to have rendered him incapable of understanding the nature and consequences of his acts at he time he made the will.

3. To defeat a will on ground that a testator lacked testamentary capacity, it is not sufficient merely to establish that the testator was a victim of some delusion, but the evidence must go further and establish that the will itself was the product of that delusion and that the testator devised his property in a way which, except for that delusion, he would not have done.

4. The judgment of the trial court on the issue of testamentary capacity in proceedings to contest a will, will not be disturbed unless it is against the clear weight of the evidence.

A. R Thompson and A. K. Little, both of Oklahoma City, for plaintiff in error.

William T. Billups and Maurice M. Thomas, both of Oklahoma City, for defendant in error.

DAVISON Justice.

This case presents an appeal from a decree of the District Court of Oklahoma County affirming a decree of the county court admitting the will of Charles Frederick Wheeling to probate. The plaintiff in error, Bertha Wheeling Smith, a sister of the testator, was the contestant and H. Truman Maxey resident manager of the Baptist Orphans' Home and the Baptist General Convention for the benefit of the Baptist Orphans' Home of Oklahoma City were the proponents. The parties will be referred to herein as contestant and proponents.

The testator was 80 years of age in December, 1942 when, because of ill health, he was sent to the Wesley Hospital in Oklahoma City. The testator left no wife, no children, no father nor mother surviving him. His nearest relatives were the contestant, who resided in Illinois, and a brother whose home was in Missouri. Upon testator being sent to the hospital, the contestant was notified of his illness by an acquaintance of testator. The contestant came to Oklahoma City and on January 20, 1943, she filed a petition in the county court of Oklahoma County praying therein for the appointment of a guardian of the person and estate of the testator. The reasons given for the appointment of such guardian were as follows: 'that he is more than 80 years of age and is now ill and confined in a hospital at Oklahoma City, Oklahoma; that by reason of age and infirmities he is neither mentally nor physically competent to manage his property, or to properly care for himself. * * *' While the testator was still in the hospital the county court, on January 26, 1943, made an order adjudging him to be an incompetent. On said date a guardian was appointed over his person and estate.

The testator filed a petition for restoration to competency in April, 1943, and after a hearing thereon, his petition was denied, the order of such denial being made on October 4, 1943. In January, 1944, the testator filed his second application for restoration to competency, and on January 18, 1944, this application was denied as to his estate, but the guardian discharged as to his person. In said order it was provided that 'said (testator) is now restored to capacity to conduct his personal affairs; to live where he pleases; employ a doctor of his own choosing; pay his own personal bills, and to deposit, maintain and check upon his personal bank account if he so desires.'

On September 16, 1943, the testator executed the will in controversy in which, after directing payment of debts and funeral expenses and burial at Litchfield, Illinois, he bequeathed one dollar each to contestant and his brother. He then bequeathed all the residue of his property to the Baptist General Convention of the State of Oklahoma for the use and benefit of the Baptist Orphans' Home of Oklahoma City, and appointed H. Truman Maxey, superintendent of the home, as executor. The testator's estate consisted of carpenter tools, stock in the American Telephone and Telegraph Company, and other personal property, all of the approximate value of $11,000. The testator died on May 9, 1944.

The contestant relies upon the following assignments of error for reversal of the judgment:

'1. The order of the county court of October 4, 1943, adjudging that the testator was not restored to capacity is res judicata as to the capacity of the testator to execute this will. The order of January 18, 1944, is likewise res judicata.

'2. The decree of the court below is against the weight of the evidence. The evidence overwhelmingly establishes incapacity to make a will.

'3. Where a person, whose conduct in many respects is apparently normal, has delusions which influence him to make a will which he would not otherwise have made, the will is void for want of testamentary capacity.'

We will discuss each of the above propositions in the order presented.

We are of the opinion that contestant's first proposition is without merit. The doctrine of res judicata is inapplicable to the facts in the present case. The facts in the present case are very similar to those in the case of In re Shipman's Estate, 184 Okl. 56, 85 P.2d 317. The contentions of the parties are almost identical. Therein we held that an adjudication of a testator's mental incompetency to manage his property is to be considered in the determination of his testamentary capacity, but such evidence is not conclusive proof thereof. In the petition in the cited case it was alleged that the testator was almost blind and that because of his physical and mental condition he was mentally incompetent to manage his property, to direct his personal and business affairs, or to properly care for his maintenance and livelihood. In that case, as in the present case, the testator, some 18 months after he had been adjudged to have been an incompetent, filed his petition asking the county court to restore him to competency and to discharge his guardian. At a hearing had on said petition, the county court refused to restore the testator's competency. The will in that case was executed a few days later, and at a time when the testator was still under guardianship for incompetency. In that case the district court admitted the will to probate and the judgment was affirmed by this court on appeal. On this particular phase of the case the above cited case is decisive. Also, see the case of In re Nitey's Estate, 175 Okl. 389, 53 P.2d 215.

The doctrine of res judicata does not apply in the present case for the further reason that the essential elements of res judicata are not herein present. The capacity of the testator to make a will was not before the county court at the time he was declared an incompetent, nor at the time of the hearing on the applications for restoration. The issue on the probate of the will goes to his testamentary capacity at the time of the execution thereof. In this connection see Hill v. Buckholtz, 75 Okl. 196, 183 P. 42; Fullerton v. State ex rel. Com'rs of Land Office, 140 Okl. 122, 282 P. 674 and Johnson v. Whelan, 186 Okl. 511, 98 P.2d 1103.

In order to determine the correctness of contestant's second assignment of error, it will be necessary to...