In re Williams' Estate

• Decision Date: 10 April 1916
• Docket Number: 3690.
• Citation: 156 P. 1087,52 Mont. 192
• Parties: IN RE WILLIAMS' ESTATE. v. DAVIS ET AL. WILLIAMS
• Court: Montana Supreme Court

156 P. 1087

52 Mont. 192

IN RE WILLIAMS' ESTATE.

WILLIAMS v. DAVIS ET AL.

No. 3690.

Supreme Court of Montana

April 10, 1916

Appeal from District Court, Silver Bow County; R. Lee Word Presiding Judge.

In the matter of the estate of Rachel E. Williams, deceased. Proceeding by Andrew J. Davis and Lyman M. Harley for the probate of an alleged will, contested by Dorothy Alice Williams by her guardian, Sibyl Scott. From a judgment for contestant, and an order denying new trial, proponents appeal. Affirmed.

Shelton & Furman and J. A. Poore, all of Butte, for appellants.

J. E Healy, of Butte, for respondent.

HOLLOWAY J.

Upon the former appeal (In re Williams' Estate, 50 Mont. 142, 145 P. 957) a new trial was awarded because the evidence was insufficient to show due publication of the writing proffered as the last will and testament of Rachel E Williams, deceased. Upon the second trial the subscribing witness Estabrook so far changed his testimony as to supply the deficiency noted in our former opinion, but the testimony of Norbeck, the other subscribing witness, is to the effect that nothing whatever was done or said by Mrs. Williams, at the time the writing was signed, to indicate that it was understood or intended by her to be her will. The jury were at liberty to accept Norbeck's testimony and find that there was not any publication, or they could believe Estabrook and Harley and reach the contrary conclusion. They chose the first alternative and, in response to special interrogatories, returned that Mrs. Williams did not publish or declare to either subscribing witness that the writing in question was her will. That finding is supported by competent evidence. The jury passed upon the credibility of Norbeck in the first instance; the presiding judge reviewed the evidence on motion to adopt the findings and a distinguished member of the state's judiciary, called in to pass upon the motion for a new trial upon the cold record, in denying the motion has stamped the seal of his approval upon the special verdict. Under these circumstances we might with propriety refer to our former decision as conclusive, and upon that authority affirm the judgment and order below. But counsel for appellants insist that certain prejudicial errors were committed, and because of them a fair and impartial trial of the issues was not had.

1. The proponents first made out their prima facie case to the court sitting without a jury. The will was received in evidence and was then formally offered for probate. The court reserved its decision upon the offer, called a jury and tried the contest--the contestant assuming the burden as plaintiff--and the will was again offered and received in evidence. The jury returned special findings which were adopted, and a judgment was rendered in which the trial court declared:

"That the said instrument offered herein for probate be and the same is hereby adjudged to be rejected and to be of no force or effect as the or any last will and testament of Rachel E. Williams, deceased; that the same is held for naught, and that the same is denied to probate."

Complaint is made that the court never passed upon appellants' offer of the instrument for probate, but the recital from the record above is a sufficient answer. In the matter of procedure, the cause was tried so well that it deserves commendation. It was in all respects technically correct. Murphy's Estate, 43 Mont. 353, 116 P. 1004, Ann. Cas. 1912C, 380; Farleigh v. Kelley, 28 Mont. 421, 72 P. 756, 63 L. R. A. 319; In re Williams' Estate, above.

2. Mr. Andrew J. Davis was called as a witness for contestant and, over objection, was required to answer as to his wealth at the time the alleged will was executed. He testified in substance that he was then worth more than $1,000,000. The court's ruling upon the admissibility of this evidence is assigned as error. By the terms of the alleged will, this contestant, Dorothy Alice Williams, was cut off with $500; a domestic was to receive $1,000; and all the residue of the $100,000 estate was bestowed upon "Andrew J. Davis, adult banker * * * as his property absolutely." The will was attacked for (a) failure of due execution, including publication; (b) incapacity of the testatrix; and (c) undue influence.

Rachel E. Williams had but one child, George H. Williams, who died about January 7, 1907, leaving surviving him an only child, Dorothy, the contestant herein, who was then but 7 1/2 years old. The record establishes that Mrs. Williams had always manifested the greatest affection for her granddaughter, and had confided to the wife of her family physician that she intended to devote at least $20,000 to Dorothy's education; that the child visited her grandmother frequently and, when away from her, they corresponded to some extent; that about January 24, 1907, Dorothy went from her home in Helena to Anaconda and spent 3 or 4 days with Mrs. Williams. The record further discloses that as early as December 21, 1906, Mrs. Williams, a woman then of 70 years or upwards, was suffering from a general breakdown; that she was the victim of nephritis, commonly called Bright's Disease; that the disease was in an advanced stage and progressing rapidly; that to take her from her home in Butte to Anaconda it was deemed necessary to move the railway car to a point near her home, rather than attempt to move her to the depot, and that her family physician should accompany her; that she was very weak on January 7th; that at the time this writing was signed, according to the witness Norbeck, "she looked like a very ill person * * * and did not seem to be much interested in the proceedings. * * * There was nothing said by Mrs. Williams or any one about the nature of the contents of the papers." On February 27th Mrs. Williams was in a state of coma, and on March 3d she died.

Bowed down by the keenest grief for the loss of her only child--George--without near relatives in all the world except her 7 year old granddaughter, to whom her attachment would naturally be greatly intensified after her son's death, and within 2 weeks after that loss occurred, it is pretended that Mrs. Williams made her will, cutting off her only blood kinship with a bare pittance and bestowing her comfortable fortune upon a millionaire banker, not in any wise related to her by ties of blood, marriage, or even intimate friendship, and that 2 or 3 days after making such disposition of her property, she received and entertained her granddaughter for a considerable time at her apartments in Anaconda. It is unnecessary to refer to the medical testimony characterizing the dread disease from which Mrs. Williams suffered and died, or the effect upon the mind of the retention in the system of the morbid matters which the diseased organs were powerless to throw off. It suffices for present purposes to say that we incline to the belief that the evidence of the intimate relationship between Mrs. Williams and her grandchild, or her physical condition and the peculiarly unnatural disposition of her property furnished a sufficient foundation for the legitimate inference that at the time this writing in question was executed, Mrs. Williams did not possess testamentary capacity. Upon this hypothesis, the evidence of Mr. Davis' wealth was...