Lunders' Estate, In re

• Decision Date: 01 December 1953
• Docket Number: No. 8017,8017
• Citation: 263 P.2d 1002,74 Idaho 448
• Parties: In re LUNDERS' ESTATE.
• Court: Idaho Supreme Court

Page 1002

263 P.2d 1002

74 Idaho 448

In re LUNDERS' ESTATE.

No. 8017.

Supreme Court of Idaho.

Dec. 1, 1953.

Rehearing Denied Dec. 21, 1953.

Paul C. Keeton, Lewiston, for appellant.

Thomas A. Madden, Lewiston, for respondent.

PORTER, Chief Justice.

Pursuant to proceedings duly had, an order was entered in the Probate Court of Lewis County on April 29, 1949, admitting to probate the purported last will and testament of one John S. Lunders, deceased. On the same date, the court made an order appointing John Sylvester Lunders, Marie K. Lantz and Thomas A. Madden as executors of said last will and testament.

On August 24, 1949, appellant, Anna Reed, filed a petition to revoke the probate of such will and to revoke the order appointing executors thereof. In such petition, appellant alleged generally that by reason of his age and physical condition the mental faculties of deceased had become so impaired that he was easily influenced by those in whom he had confidence; and that in making such purported will the decedent acted under the will and influence of John Sylvester Lunders to such an extent that his act in executing the same was not his own voluntary act and deed, but that his own will was supplanted by the will and purpose of the said John Sylvester Lunders.

John Sylvester Lunders, individually, and the executors filed an answer denying generally the allegations of the petition. A trial was had on the issues before the Probate Judge of Lewis County and resulted in an order denying relief to petitioner. An appeal was taken to the District Court of the Tenth Judicial District in and for the County of Lewis where a trial de novo was held before the court sitting without a jury. Upon completion of appellant's evidence a motion for nonsuit was made by respondents which motion was by the court granted and a judgment of nonsuit against appellant was duly entered. From such judgment appellant has appealed to this court.

The controversy between appellant and her sisters, Florence C. Lunders and Marie K. Lantz, has been settled and the appeal dismissed as to such respondents.

The principal contention of appellant on this appeal is that the trial court erred in granting the motion for nonsuit. A motion for nonsuit admits all the facts the evidence of plaintiff tends to prove and all reasonable inferences that can be drawn therefrom. The evidence must be viewed in the light most favorable to plaintiff and the question for the court to determine is whether there is any competent evidence legally sufficient to make a prima facie case on behalf of plaintiff. Bogovich v. Capitol Silver-Lead Mining Co., 71 Idaho 1, 224 P.2d 1078; Black v. Darrah, 71 Idaho 404, 233 P.2d 415; Estate of Randall, 58 Idaho 143, 70 P.2d 389; 64 C.J., Trials, Secs. 1024-1028, pp. 1212-1213.

Let us examine the underlying facts which were presented to the court by appellant's evidence. In the year 1948, John S Lunders was a widower, 86 years of age. He had five children, namely, Anna Reed, Florence C. Lunders, Marie K. Lantz, John Sylvester Lunders and Joseph Lunders. He had been living from time to time with various members of his family. In the month of November, 1948, he moved a trailer house onto his property generally referred to as the home in the Thomas Addition in the City of Lewiston. On November 8, he apparently fell on the steps of the trailer house and probably fractured three ribs. He laid out in the cold until found and taken into the house by the lady living on the premises. He was removed to the hospital where he remained until November 15, when he was taken by his son, John Sylvester, to the son's home near Craigmont. On November 27, he was still too weak and sick to attend the funeral of his younger son, Joe, at Craigmont.

On November 29, he was taken by John Sylvester to Lewiston and to the office of his attorney, Thomas A. Madden, for the purpose of making a new will. John Sylvester and deceased remained in Lewiston until December 1, when the will in question was executed. At the same time a warranty deed was made by deceased conveying to John Sylvester 160 acres of land which land formed a substantial part of the estate of deceased.

In determining the legality of a will the instrument itself may be examined and if it appear unnatural, unjust or irrational, such fact may be taken into consideration. In re Heazle's Estate, Idaho, 257 P.2d 556; In re Arnold's Estate, 16 Cal.2d 573, 107 P.2d 25. An inspection of the purported will shows that the testator made specific bequests to each of his four surviving children and devised the residue of his estate equally to his son, John Sylvester, and his two daughters, Marie K. Lantz and Florence C. Lunders. Appellant, Anna Reed, was excluded from participating in the residue of the estate. The will makes specific bequests of certain described real estate to each of the children. However, the inventory of the estate filed by the executors shows that the estate only owns an undivided one-half interest in each of the parcels of real estate willed to the children.

The appraised value of the undivided one-half interest in the real estate bequeathed to John Sylvester is the sum of $4,000. The appraised value of the undivided one-half interest in the real estate bequeathed to Florence C. Lunders, is the sum of $1,980. The appraised value of the undivided one-half interest in the real estate bequeathed to Marie K. Lantz, is $2,560. The appraised value of the undivided one-half interest in the real estate bequeathed to Anna Reed, appellant, is the sum of $400. And, in addition, she received a bequest of $25 cash. The total appraised value of the estate is $77,601.46. Deducting the $8,965 of specific bequests leaves $68,636.46 as the residuary estate to be divided among John Sylvester, Florence C. Lunders and Marie K. Lantz, giving each one the sum of $22,878.82.

It thus appears that under the will, the share of John Sylvester is $26,878.82. In addition he received the lands described in warranty deed hereinbefore referred to. The value of such lands and whether any consideration was paid for same is not determinable from the record. The share of Florence C. Lunders under the will is $24,858.82. The share of Marie K. Lantz under the will is $25,438.82. Of course, these shares will be reduced as the residuary esstate is reduced by the cost and expense of probating the estate. Appellant, Anna Reed, receives under the will $425.

Appellant, from the evidence, is apparently in poor financial circumstances. Prior to 1937 she lost her home. She lived with her father from 1943 to 1946, and again for a time in 1948. There is nothing in the evidence to indicate any ill-will by the deceased toward appellant--nothing to explain his action in disinheriting appellant.

The record is replete with evidence of the weakened physical and mental condition of deceased at the time the purported will was made on December 1, 1948. He was taken to the hospital in March, 1949, and died on the first day of April. Appellant testified to the extreme weakened physical condition of her father at the time of his accident; that during 1948 he was 'getting awfully childish', and as to his physical and mental condition, she observed 'an awful lot of change' in her father.

Witness, William Lantz, testified that he saw the deceased on November 27, 1948 and asked him to go to the funeral of his son, Joe, and that 'Well, he didn't look very good to me; he looked like a very sick man.'

The witness, Marie K. Lantz, being one of the executors of the will, was called on direct examination for appellant. She testified to seeing her father shortly before the funeral of Joe Lunders. She testified, 'Well, he was pretty darn weak like,' and 'Well, he was an old man, and he was pretty badly bothered about the way everything went.' She testified that she could see a change in the mentality of her father 'due to age and forgetfulness and stuff like that.'

Florence C. Lunders was called as a witness on behalf of appellant. She testified that her father came to live with her in June, 1948, and lived with her until he went to Lewiston just prior to his accident. In reply to questions as to his physical condition, she testified that he was unable to control his bodily functions. In connection with his mental condition she testified to a number of odd and irresponsible things that he did. She testified: 'Well, he came into the house one day with a pair of pliers in one hand and a bolt in the other, and I said: 'What's the matter with you? Can't you get the nut off the bolt?' And he said, 'No, my head is in such terrible shape I can't think of anything.'' And, 'he was quarreling all the time; accusing me of stuff that I didn't do,--one thing and another thing. It was impossible to live with him.'

Prior to the execution of the will the testator made a number of statements to appellant to the effect that the property in Lewiston in the Thomas Addition would be willed to appellant. It would appear from the evidence that appellant formerly owned the property as a home, but lost it. It was acquired by the witness, Fred Wooster, a real estate man. In 1937 he sold the property to John S. Lunders and transferred it to Lunders and wife by quitclaim deed. After the sale, the witness continued to collect the rent for Mr. Lunders. He testified:

'A. At the time he wanted to purchase this property he informed me that he wanted to redeem it to protect Mrs. Reed's interest, and he specifically mentioned Mrs. Reed and no one else. And I didn't pay very much for it and I didn't get very much for it when I sold it. I presume it was worth ten times what I sold it for or maybe twenty times what I sold it for, but inasmuch as he wanted to redeem it for Mrs. Reed and that it had been her home I thought I should let him have it.

'Mr. Madden: If the Court please, we will move to strike the testimony of the witness, except the parts pertaining to his...