Lehman v. Lindenmeyer
|04 October 1909
|109 P. 956,48 Colo. 305
|LEHMAN v. LINDENMEYER et al.
|Colorado Supreme Court
Rehearing Denied July 5, 1910.
Error to District Court, City and County of Denver; Peter L Palmer Judge.
Petition by Jennie Lehman for the probate of the will of George Cleve deceased, to which Kate Lindenmeyer and others filed objections. From a judgment denying probate, proponent brings error. Affirmed.
H. E. Kelley and W. E. Richards, for plaintiff in error.
Bicksler Bennett & Nye, for defendants in error.
The following, purporting to be the last will and testament of George Cleve, deceased, was presented for probate and record to the county court of the city and county of Denver:
'(2) I appoint the said Jennie Lehman sole executrix of this my will, and I direct her to pay all my funeral and testamentary expenses and my just debts owing by me at the time of my decease.
'(3) I declare that I have a brother and some distant relatives living but inasmuch as they have ignored me and left me to my fate it is my will and intention that they shall not in any way participate in my estate.
'(4) I desire that the said Jennie Lehman my said sole executrix be empowered to act in the matter of this my will without being under the necessity of giving or procuring to be given bonds for the due performance of her duties and I desire that any court having jurisdiction of this my will waive all such bonds.
'(5) I hereby revoke all former wills and testamentary dispositions heretofore made by me and declare this to be my last will and testament.
'In witness whereof I have to this my last will and testament set my hand by making my mark hereto this eighth day of October in the year of our Lord one thousand nine hundred and three.
'George his X mark Cleve.'
Objections were made by the heirs at law of the deceased upon two grounds: (1) That at the time the writing bears date the said George Cleve was not of sound mind and memory, but by reason of his extreme age and fatal illness was mentally incapacitated. (2) 'That the said George Cleve, if he signed said will at all, was induced thereto by the undue influence of Jennie Lehman, the proponent of said will, and others to said objectors unknown, who induced said defendant by false The document was refused probate by the county court, and also by the district court on appeal. From the judgment the proponent appealed to the Court of Appeals. That court having dismissed the appeal, the case was brought here by writ of error. The assignments of error relate to the reception of testimony and the instructions, but mainly to the insufficiency of the evidence to sustain the verdict and judgment.
Before entering upon a discussion of the assignments of error, it should be stated that the decedent came to this country from England, bringing with him his wife and her niece. The niece had been taken into the family with the intention of adopting her, but no legal adoption was procured. Cleve and his wife and her niece lived upon the farm owned by Cleve near Ft. Collins until the marriage of the niece, when she left the home of the Cleves and went to live with her husband in that immediate neighborhood; but in a short time the niece returned to the Cleve home with her husband and lived with them for a period of 12 years. Cleve survived his wife about 10 years, and about five years before his wife died the niece removed with her family to her place, a short distance from the Cleve home; but during the entire period, both before and after his wife's death, the niece was accustomed to have general superintendance of Cleve's household affairs. About two years before Cleve died, he came to Denver. He at first became connected with the Salvation Army, later with the Union Mission, a religious association having a place of meeting near the corner of Twentieth and Larimer streets, in this city. The mission is thus described by one of the witnesses: 'A number of ladies and gentlemen, charitably disposed, are banded together, under the leadership of Miss Lehman, for the purpose of rescuing the poor and outcast in Denver.' Cleve devoted nearly all of his time in furtherance of the objects of this most worthy institution. He spoke at the meetings; he contributed funds; he slept at the mission house on a mattress; he cooked his meals there; and in every way showed that he was one of the mission's most devoted adherents. He owned a horse and buggy and would drive with Miss Lehman to the towns in the vicinity of Denver, and on one occasion, at least, visited Ft. Collins with her.
Cleve had complained on many occasions of dizziness, and one of the reasons given by him to the niece for his removal to Denver, aside from his desire to learn more of the 'holiness business,' as he expressed it, was a belief that his health would improve if he left the farm. During the early part of October, 1903, he was ill, and was visited several times by a physician. On the night of October 6th, he was completing his arrangements to return to Ft. Collins. His condition was such that the physician refused to permit him to leave, but, desiring he should have better accommodations than the mission afforded, removed him, on the morning of October 7th, from the mission house to the home of Mrs. Strickland, the sister of proponent, 2758 Humboldt street, Denver. On October 8th, the paper purporting to be his last will was prepared by an attorney, and Cleve's name was signed by one of the witnesses and Cleve affixed a cross. It was shown that Cleve had not learned to write his name. Cleve died on October 13, 1903. The physician, as shown by the claim filed against the estate, was in constant attendance during October 7th, 15 hours on October 8th, in constant attendance October 9th and 10th, and all day each day thereafter until Cleve died.
Not all of the assignments of error are discussed, and we shall consider only those mentioned by the plaintiff in error. The court received certain letters purporting to be from the brother of deceased, for the purpose of showing that the alleged declaration that he had not heard from his brother for more than 25 years was not true. As the letters were received within the period, we perceive no prejudicial error in thus admitting...
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