McElhinney v. Kelly

• Decision Date: 18 October 1960
• Docket Number: No. 6582,6582
• Parties: Violet B. McELHINNEY, Petitioner-Appellee, v. Helen KELLY, Contestant-Appellant.
• Court: New Mexico Supreme Court

Page 113

356 P.2d 113

67 N.M. 399

Violet B. McELHINNEY, Petitioner-Appellee, v. Helen KELLY, Contestant-Appellant.

No. 6582.

Supreme Court of New Mexico.

Oct. 18, 1960.

Smith, Kiker & Kitts, Albuquerque, for appellant.

Kenneth A. Patterson, A. F. Sceresse, Albuquerque, for appellee.

NOBLE, Justice.

Contestant appeals from a judgment in an original proceeding in the district court admitting a will to probate. Three questions are presented. (1) Was the will attested as required by statute, (2) is there substantial evidence to support a finding of testamentary capacity, and (3) should probate of the will be denied because of undue influence.

George F. McElhinney, the testator, was a man 72 years of age who, at the time of execution of the will offered for probate, was a patient at the Veteran's Hospital in Albuquerque suffering from lung cancer of which he died January 17, 1958. Testator was a widower who had lived at Truth or Consequences for some time prior to his entry into the hospital in July 1957, in a house owned and furnished to testator by his sister, the contestant. Testator's sister sent him $200 each month during his stay in Truth or Consequences.

Proponent was employed by testator as housekeeper from about January 1956 to May 1957. In addition, proponent waited upon and took care of testator. When testator entered the hospital proponent secured employment in Albuquerque and visited testator regularly. Testator had asked proponent to marry him on more than one occasion. They were married December 10, 1958 and this will executed the following day.

The substance of the testimony of testator's physician was that he was as clear and had as good judgment as would be expected of one of his age and physical condition and that he was clear and rational until the evening before his death. The doctor did say that anyone his age and with his illness could be influenced. There was conflicting testimony of non-medical witnesses that they did not consider testator to be of sound mind and statements by proponent, that testator's mind was affected, testified to by others.

There was testimony of a history of syphilis suffered by testator, however, a post mortem examination disclosed that neither the brain nor central nervous system had been affected by any disease. At the time of his marriage he had the usual blood tests, all of which proved negative.

It is contended that the will was not attested as required by Sec. 30-1-6 N.M.S.A.1953 Comp., which reads:

'The witnesses to a written will must be present, see the testator sign the will, or some one sign it for him at his request as and for his last will and testament, and must sign as witnesses at his request in his presence and in the presence of each other.'

It is admitted that all of the statutory requirements were complied with except it is contended that the witness Hawkins was not actually looking at the other witness when such witness affixed his signature to the attestation clause. The two witnesses were likewise patients of the hospital and were called into testator's room to act as witnesses. Testator signed the will while in his bed. The witnesses and testator's attorney were in the room and all standing beside or near the bed. The evidence is not clear as to whether the witness Hawkins remembered seeing Nilson sign his name to the attestation clause or whether he was looking out the window at the moment--his own testimony is contradictory. It is clear however, that he was in a position where he could have seen if he had looked. Both witnesses, in addition to signing the attestation clause, initialled the first page of the will. Hawkins did see Nilson initial the first page.

The trial court found:

'2. That George E. McElhinney, deceased, on December 11, 1957, signed his Last Will and Testament (here in evidence as Proponent's Exhibit Numbered Three), in the presence of Theodore R. Nilson and Ray C. Hawkins, each of whom saw the deceased sign his name and signed as witnesses at deceased's request in his presence and in the presence of each other.

'3. That said Last Will and Testament included an attestation clause signed by both witnesses, which declared that on the date of the Will, the same was signed, sealed, published and declared by the testator, and that the witnesses, in his presence and at his request, and in the presence of each other, set their names thereto as subscribers and witnesses.'

If the trial court based the findings upon a determination that the witness Hawkins could not remember whether he saw the other witness sign his signature to the attestation clause, there is a presumption of statutory compliance. In re Akin's Estate, 41 N.M. 566, 72 P.2d 21. If the trial court determined from the evidence that the witness was looking out the window at the instant Nilson affixed his signature to the attestation clause, the initialling of the first page of the will was part of the attestation and there is no dispute but that Hawkins saw Nilson initial the instrument. There is substantial evidence to support the findings.

Appellant insists that because the statute requires the witnesses to see the testator sign we should construe it to likewise require that each witness actually see the other witness affix his signature. We have found no decision requiring such construction and counsel have cited none.

It is well established that the reason for requiring the presence of witnesses to a will and to the signing by the testator is to establish the authenticity of the instrument and to have someone who can so testify. A rule, however, which would require the proponent of a will to establish, that witnesses actually present and who could have seen each other sign, did not momentarily close their eyes or look away at the instant of signing by the other witness, would make the validity of the will dependent, not upon its due execution or the capacity of the testator, but upon the fact that there was not a momentary lapse of attention by a witness. We see nothing in the statute which requires us to add, by judicial construction, language not employed by the legislature.

We conclude that our statute does not require each witness to a will to actually see the other witnesses affix their signature, but only that they be in the presence of the testator and of each other in such a way that they could have seen one another sign if they had looked. Blanchard's Heirs v. Blanchard's Heirs, 32 Vt. 62; In re Claflin's Will, 75 Vt. 19, 52 A. 1053, 58 L.R.A. 261; Allen v. Jones, 259 Ala. 98, 65 So.2d 217; 2 Bowe-Parker: Page on Wills, Sec. 19.122 and cases cited there. This is in substantial accord with our reasoning in In re Akin's Estate, supra.

It is next contended that proponent failed in her burden of establishing testamentary capacity. The will was offered for probate originally in the district court and its probate objected to by contestant. The will was admitted to probate. The proponent upon original offer for probate has the burden of establishing testamentary capacity when the mental capacity of the testator is challenged by evidence. In re Owens' Estate, 63 N.M. 263, 316 P.2d 1077.

The trial court found:

'5. That on December 11, 1957, the testator was of sound and disposing mind and memory.'

The specific challenge to the testimony is that none of it is directed to the controlling elements of testamentary capacity, i. e. (1) knowledge of the meaning of the act of making a will, (2) knowledge of the character and extent of the estate,...