Merrill's Estate, In re

• Decision Date: 30 June 1959
• Docket Number: No. 2808,2808
• Citation: 341 P.2d 506,80 Wyo. 276
• Parties: In the Matter of The ESTATE of Mrs. Mary MERRILL, Deceased. Georgia K. MERRILL, Propondent and Appellant, Alberta A. Webber, Landis Webber and Florence M. Bannon, Proponents, v. Mary Kay VAN ETTEN, Contestant, and Ellis Merrill and Beverly Merrill Carpenter, Contestants and Respondents.
• Court: Wyoming Supreme Court

Page 506

341 P.2d 506

80 Wyo. 276

In the Matter of The ESTATE of Mrs. Mary MERRILL, Deceased.

Georgia K. MERRILL, Propondent and Appellant, Alberta A. Webber, Landis Webber and Florence M. Bannon, Proponents, v. Mary Kay VAN ETTEN, Contestant, and Ellis Merrill and Beverly Merrill Carpenter, Contestants and Respondents.

No. 2808.

Supreme Court of Wyoming.

June 30, 1959.

Moran, Murphy & Hettinger, Riverton, for appellant.

Don D. Bowman, Denver, Colo., and Chester Ingle, Thermopolis, A. Joseph Williams, Cheyenne, for respondents.

Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.

PARKER, Justice.

This is an appeal from a judgment rejecting probate of the July 7, 1953, will of Mary Merrill after a jury had rendered a special verdict finding that at the time of executing the instrument she was not of sound and disposing mind and memory and was acting as a result of undue influence.

Mary Merrill and her husband, George Merrill, were pioneer Wyoming ranchers possessed of numerous holdings. Mr. Merrill died in 1934. They were the parents of seven children, two of whom predeceased Mrs. Merrill, one died subsequent to the trial below, and four are still living. The three who are deceased left children surviving them.

Prior to July 7, 1953, Mrs. Merrill had made at least two other wills and had caused certain transfers to be effected for tax reasons. None of these facts appear to us to have more than a passing interest in the trial. Mrs. Merrill, past eighty-four at the time of her death and past eighty-three at the time she made the 1953 will, was quite deaf, almost blind, and intermittently in bad and improved states of health.

The specifications of error recite insufficiency of the evidence to support the verdict and judgment, erroneous instruction of the jury, some seventy-seven improper rulings on evidence, and the denial of attorney fees to the proponents.

We first consider whether or not the evidence as to testamentary capacity was sufficient to support the verdict, and in so doing ascertain upon whom fell the burden of proof. Respondents say that the guardianship of the estate of Mary Merrill, instituted in 1952 and undissolved on July 7, 1953, together with testimony regarding decedent's condition, places the instant case under the exception mentioned in our opinion, In re Lane's Estate, 50 Wyo. 119, 58 P.2d 415, 419, 60 P.2d 360, where we said:

'In our examination of contestant's claims, it is proper to recall in this connection that it was pointed out in Wood v. Wood, 25 Wyo. 26, 164 P. 844, 852, that the burden of showing an alleged incompetency of the party making the will rests upon the contestant 'unless the case should be brought within the exception where previous incompetency is admitted or sufficiently shown to change the burden.' * * *'

We cannot agree with respondents for two reasons. First, even assuming that the guardianship proceedings were proper evidence, which we do not need to determine at this time, we note that the petition in the guardianship proceedings was quite explicit that the reason Mrs. Merrill was unable to manage and administer her property was because of her physical condition. Nothing was said about mental incompetency in the petition. Therefore, any reference to 'an incompetent' in the subsequent papers in the guardianship file could not be taken to refer to a mental condition of the ward. Second, under the mentioned pronouncement in the Lane case, the exception which would change the burden of proof does not stem from the nature of the evidence on incompetency adduced at the trial but rather from a previously proven or admitted mental incompetency. Accordingly, the burden of proof in this case rested upon the contestants. This being true, we look to the evidence on which they relied to show that Mary Merrill was not of sound and disposing mind and memory at the time of the execution of the will.

In the main, those witnesses who stated or intimated that Mary Merrill was not of sound and disposing mind and memory on July 7, 1953, based their appraisal that she lacked testamentary capacity upon strange reasons such as (1) she would not have made the kind of the will she did if she had been of sound mind, (2) she (almost totally blind and deaf) would occasionally ask questions as to the whereabouts of persons with whom she had just been speaking, and (3) she didn't understand the will because the witness himself couldn't understand it.

As in any other appeal, this court must assume the truth of the evidence in favor of the successful party, ignore that of the unsuccessful party in conflict therewith, and give that of the successful party every favorable inference which may be reasonably drawn therefrom. In re Johnston's Estate, 63 Wyo. 332, 181 P.2d 611; In re Anderson's Estate, 71 Wyo. 238, 255 P.2d 983.

Contestants on several occasions asked of different lay witnesses whether or not they thought Mary Merrill was of sound and disposing mind and memory, and whether they thought she was incompetent. Appellant objected to such questions on two grounds: First, that there was not background to show the witnesses' observation of decedent at the time of the execution of the will, and second, that an opinion was improper. As to the first, we are aware that observations as to a testator's condition are often limited to the precise time of the execution of the will. However, there is nothing in the record indicating any sharp change in Mrs. Merrill's mental condition over a period of several years, and we are therefore unconvinced that the objection on this ground had merit. As to the second cause for objection, we are inclined to agree. In the cases which we have examined, the attempt to secure opinion evidence from lay witnesses concerning testamentary capacity has employed many different words and phrases, including: mental unsoundness, competency, incompetency, mental capacity, capacity to make a will, capable of making a will, a mind sound enough to make a will, etc. The exact from of the question is not of great importance.

Although nonexpert opinions as to mental capacity have been received by courts on occasion in the past, ¹ most courts have been conscious of the inherent danger of invading the province of the trier of fact by so doing and have tended to limit the lay witness to a statement of the actual things that were seen, heard, or experienced by him without permitting him to voice his opinion or conclusin. Judge Blume's statement in In re Johnson's Estate, supra, at 181 P.2d 618, 'Laymen, too, are competent witnesses when they relate the facts on which their observations are based, and the weight to be attached to the testimony of expert as well as nonexpert witnesses is for the trier of facts,' did not quite say this but implied it. We think the voicing of opinion as to testamentary capacity by a person who is not especially trained tends to invade the province of the jury and should not be permitted. See 7 Wigmore on Evidence, 3 ed., § 1958; 57 Am.Jur. Wills § 129; Annotation, 155 A.L.R. 281, 284.

Even courts which have accepted opinions of lay witnesses on mental unsoundness of a testator have restricted the effect of the testimony to the reasons given for the opinion. In re Dupont's Estate, 60 Cal.App.2d 276, 140 P.2d 866, 871. Important as is the proper limitation of nonexpert opinion evidence, it is not determinative in the present situation since the facts upon which the witnesses here based their views fell far short of meeting contestants' burden of showing that Mary Merrill lacked the capacity to make a will.

We pass then to the sufficiency of the evidence as to contestants' claim of undue influence. It is not denied that the burden of proof was upon them, and we think it was. Wood v. Wood, 25 Wyo. 26, 164 P. 844. The testimony on which reliance is placed is quite difficult to follow. In its aspect most favorable to the contestants it could be interpreted to show that the proponents of the will were with deceased most of the time prior to her death; that one of them, Alberta Webber, arranged with the lawyer, R. L. Moran, to come to the Red Creek Ranch on the day that the will was drawn, that prior to that time she had said she did not want the children of her deceased sister, Margaret Brown, to inherit from her mother and that after the will had been drawn she was alleged to have said that she had arranged it so that her sister, Mary C. Merrill, would never mismanage her mother's property again; that certain of the children and grandchildren received amounts less than others; and that they received amounts less than they would have had under other wills and less than they would have received if a prior transfer had remained effective. It is difficult for us to agree that this type of testimony could reasonably be found either by a court or jury to constitute undue influence, and respondents' arguments are unconvincing. After relating the facts about Mrs. Merrill's infirmities, they merely say that they do not rely upon these facts to prove the undue influence but rather upon these together with a disparity between the shares given to the natural objects of her affection--inconsistent with prior dispositions of her property and inconsistent with her previously expressed intention to treat all of her grandchildren and children equally. They cite only one case, In re Conroy's Estate, 29 Wyo. 62, 211 P. 96, 99, to substantiate their position:

'It is not necessary to cite authorities to sustain the proposition that undue influence, seldom susceptible of direct proof, may be established by proof of facts from which it may be fairly and reasonably inferred.'

This statement correct as it is has...