Kingdon v. Sybrant

• Decision Date: 26 April 1968
• Docket Number: No. 8459,8459
• Citation: 158 N.W.2d 863
• Parties: Frederick W. KINGDON, Petitioner and Appellant, v. Mathilda S. SYBRANT, Respondent and Appellant, and Lotus Irene Korner, Contestant and Respondent. Civ.
• Court: North Dakota Supreme Court

Page 863

158 N.W.2d 863

Frederick W. KINGDON, Petitioner and Appellant, v. Mathilda S. SYBRANT, Respondent and Appellant, and Lotus Irene Korner, Contestant and Respondent.

Civ. No. 8459.

Supreme Court of North Dakota.

April 26, 1968.

Syllabus by the Court

1. There is a presumption that a testator was sane at the time of the execution of his will, until the contrary appears by competent proof, and where one is contesting proof of a will on the basis that the testator was suffering from an insane delusion, it is not sufficient to introduce evidence which tends to prove that the testator was possessed of such a delusion, but there should be further proof by the contestant that such delusion has no foundation in fact or in probability in order to show that the delusion is wholly a product of the imagination.

2. Whether a testator is laboring under an insane delusion which materially affects the will is generally a question of fact, and to defeat a will on the ground that the testator lacked testamentary capacity because of an insane delusion, it is not sufficient to establish that the testator was the victim of such a 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.

3. Where a motion for judgment notwithstanding the verdict has been denied by the trial court, the evidence, on review, must be considered in a light most favorable to the party in whose favor the verdict was rendered, and the trial court's order should not be overruled unless the moving party was entitled to judgment as a matter of law.

4. On an appeal from an order denying a motion for judgment notwithstanding the verdict, the only grounds which will be considered will be those which were assigned on the motion for a directed verdict.

5. Where the instructions of the trial court place the burden upon the proponents of the will of proving that the testator's daughter was, in fact, illegitimate, and the testator's first wife was unchaste, such instructions were inherently prejudicial in that the burden on the proponents of the will was only to prove that the testator had some evidential basis for his belief that his wife was unchaste and his daughter therefore illegitimate.

6. Where it is relevant to show that a certain statement or declaration was made, regardless of the truth or falsity of the statement or declaration itself, such proof is not hearsay and should be admitted as a verbal or operative fact.

7. Where the trial court sustained objections to the receipt of rumor evidence on the basis that such evidence was not reliable proof of the facts asserted therein, and where such evidence was, in fact, being offered to prove only that the rumors had been voiced, the sustaining of the objections constituted error, especially in view of the fact that the other party was permitted to offer evidence of lack of rumor.

8. A subscribing witness to a will may give his opinion as to the mental capacity of the testator without stating the facts upon which it is based or otherwise establishing his qualifications to judge the testator's mental capacity.

9. A testator may reasonably take into consideration the relative financial standing of his children and may logically discriminate in favor of those less favorably situated financially as against those comparatively more affluent.

Johnson, Milloy & Eckert, Wahpeton, for appellants.

Lewis & Bullis, Wahpeton, for contestant and respondent.

PAULSON, Judge.

This case is before us on an appeal from the district court in a will contest action. The testator's will had been upheld in the county court of Richland County, North Dakota, and the contestant appealed to the district court. The appeal was tried before a jury, which found the will invalid because of a lack of testamentary capacity on the part of the deceased, Fred W. Kingdon. The proponents of the will are Frederick W. Kingdon and his sister Mathilda S. Sybrandt. The contestant is Lotus Irene Korner, the legal daughter of the decedent by his first wife. Following the verdict, the proponents moved for judgment notwithstanding the verdict or, in the alternative, for a new trial, both of which motions were denied. It is from the denial of these motions that proponents appeal.

The testator had married his first wife, Jessie Corkill Kingdon, in 1893, and the contestant was born in 1896. The decedent was, at this time, operating several business in the town of Cullom, Illinois, including a hardware and an implement business. The decedent left Cullom and moved to North Dakota in 1922 and commenced the farming operations which were continued by him for the balance of his working years. On February 22, 1924, his first wife, Jessie Corkill Kingdon, secured a divorce from the decedent on the ground of desertion. The decedent married his second wife, Marie Reinhard Kingdon (the mother of the proponents), on July 9, 1924. The decedent continued to operate his business properties in Cullom until approximately 1946, and the contestant worked in her father's business in Cullom from 1919 to the early 1940's. The decedent's second wife, Marie, died on March 31, 1964, and the will in question was executed on April 1, 1964. By this will the contestant, Lotus Irene Korner, was left the sum of $1,000, and the balance of the estate was to be divided between the proponents of the will the two children born of decedent's marriage to Marie Reinhard Kingdon.

The decedent's attorney testified that the decedent had told him (the attorney) on at least two occasions that the contestant, Lotus Irene Korner, was not a child of his body. The decedent had further stated that, in fact, the contestant was the child of his first wife and Sig Boeman, a livery stable operator who had resided in Cullom, Illinois, at the time of the events in question. He further stated that in later years it was common talk that his wife and Sig Boeman were having an affair and he also stated that the doctor who had delivered the contestant had told the decedent that while contestant's mother was on the delivery table she had stated: 'Sig, you shouldn't have done it.' The decedent also made a statement to a Mr. Julius Larson to the effect that the contestant was not the daughter of his body. The contestant offered evidence through numerous deposition witnesses to the effect that there was no scandal in the community of Cullom concerning a relationship between Jessie Corkill Kingdon and Sig Boeman. The proponents' evidence of an opposite nature was ruled inadmissible by the trial court, with the exception that one witness, John A. Barner, was allowed to testify that Jessie Corkill Kingdon's reputation for morals in the community was not all that it should have been.

At the time these proceedings were commenced, the contestant was 70 years of age and had two grown children, who were self-supporting. The proponent Frederick W. Kingdon was 39 years old and had four children, aged 17, 15, 12, and 5. The proponent Mathilda S. Sybrant was 37 years old and had five sons, aged 14, 12, 9, 8, and 2.

The original answer of the contestant alleged that the will was invalid because the testator lacked mental capacity due to an insane delusion, and because the will was procured by undue influence. The undue-influence count was dismissed by the court and there was no cross-appeal from that dismissal; therefore, the question will not be considered by us. Auer v. Frank, 227 Cal.App.2d 396, 38 Cal.Rptr. 684, 8 A.L.R.3d 1108 (1964); Reuland v. Independent Dist. of White Lake, 64 S.D. 621, 269 N.W. 484 (1936); In re Congdon's Estate, 74 S.D. 306, 51 N.W.2d 877 (1952); 5 C.J.S. Appeal and Error § 1300, pp. 209--211. The dismissal of the claim of undue influence occurred during the trial. Because we grant a new trial for reasons hereinafter set forth and do not pass upon the correctness of the trial court's ruling, the new trial shall be held on all the issues, including the issue of undue influence.

Several of the principles which will be initially employed in the decision in this case will be set forth here. First, there is a presumption that a testator was sane at the time of the execution of his will, until the contrary appears by competent proof. Edwardson v. Gerwien, 41 N.D. 506, 171 N.W. 101 (1919); Stormon v. Weiss, 65 N.W.2d 475 (N.D.1954). Second, where one is contesting proof of a will on the basis that the testator was suffering from an insane delusion, it is not sufficient to introduce evidence which tends to prove that the testator was possessed of such a delusion, but there should be further proof by the contestant that such delusion has no foundation in fact or in probability, in order to show that the delusion is wholly a product of the imagination. Edwardson v. Gerwien, supra. Third, the question of whether a testator is laboring under an insane delusion which materially affects the will is generally a question of fact. Winn v. Dolezal, 355 P.2d 859 (Okla.1960); In re Felgar's Estate, 207 Okla. 310, 249 P.2d 455 (1952). Fourth, to defeat a will on the ground that the testator lacked testamentary capacity because of an insane delusion, it is not sufficient to establish that the testator was the victim of such a 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. In re Williams' Estate, 207 Okl. 209, 249 P.2d 94 (1952); In re Wheeling's Estate, 198 Okla. 81, 175 P.2d 317 (1946); In re Mason's Estate, 185...