Morton's Estate, In re

• Decision Date: 08 June 1967
• Docket Number: No. 3551,3551
• Citation: 428 P.2d 725
• Parties: In the Matter of the ESTATE of Robert A. MORTON, Deceased. Robert J. MORTON and Charles R. Morton, Appellants (Contestants below), v. M. S. REYNOLDS, as Executor of the Estate of Robert A. Morton, Deceased, Mr.Emillo Veniegas, and The First Presbyterian Church of Cheyenne, Appellees(Proponents below).
• Court: Wyoming Supreme Court

Page 725

428 P.2d 725

In the Matter of the ESTATE of Robert A. MORTON, Deceased.

Robert J. MORTON and Charles R. Morton, Appellants (Contestants below), v. M. S. REYNOLDS, as Executor of the Estate of Robert A. Morton, Deceased, Mr.Emillo Veniegas, and The First Presbyterian Church of Cheyenne, Appellees(Proponents below).

No. 3551.

Supreme Court of Wyoming.

June 8, 1967.

Walter C. Urbigkit, Jr., Cheyenne, for appellants.

Paul B. Godfrey, Ward A. White, Cheyenne, for appellees.

Before GRAY, McINTYRE, and PARKER, JJ.

Mr. Justice GRAY delivered the opinion of the court.

Robert A. Morton, a longtime resident of Cheyenne, Wyoming, died February 27, 1965, and was survived by Robert J. Morton and Charles R. Morton, his nephews and only legal heirs. Following his death a purported will dated May 12, 1960, was offered for probate by M. S. Reynolds as the executor named therein, and in due course the instrument was admitted to probate as the last will and testament of said decedent.

Within the time fixed by § 2-83, W.S.1957, the nephews, hereinafter called the contestants, who had been disinherited, filed their petition seeking to have the order admitting the will to probate set aside and the letters testamentary issued to M. S. Reynolds revoked.

The claim of contestants was set forth in fourt separate counts. The first count alleged on information and belief that a subsequent will naming contestants as beneficiaries or devisees had been formally executed by the decedent and had superseded the 1960 will: that such will was in possession of M. S. Reynolds; and that it had not been produced. In this connection the record discloses that no such subsequent will was ever found, and so far as we can determine that part of contestants' claim has been abandoned. The second and third counts, considered together, alleged in substance that two letters in the handwriting of decedent attached to the petition, dated December 18, 1961, and July 27, 1963, respectively, constituted a holographic will which revoked the 1960 will, or the alternative that the letters constituted a codicil reovking in part the 1960 will 'at least to the extent that specific bequests are therein made' to the contestants. The fourth count alleged, in the alternative, that at the date of the execution of the 1960 will the decedent lacked legal competency to make a last will and testament.

The proponents, M. S. Reynolds, The First Presbyterian Church of Cheyenne, Wyoming, and Emilio Veniegas, filed separate answers in essence denying contestants' claims; alleged that the 1960 will was the only testamentary instrument left by decedent; and that prior to the date of the letters described the testator had been declared incompetent and a guardian had been appointed for his person and estate. When the matter came on for trial and after each of the parties had presented their evidence and rested, the proponents moved for a directed verdict on the ground that contestants had failed to present sufficient evidence to sustain their burden of proof. The motion was granted and judgment entered accordingly. From that judgment the contestants appeal.

Many claimed errors have been advanced by the contestants relating to procedural and evidentiary rulings. While those contentions have all received consideration, it has been concluded that we can dispose of this appeal by directing our attention to those matters that strike us as presenting the important questions in the case, which in turn will eliminate to a large extent the necessity of separate discussion of each and every ruling of which contestants complain.

One of the most bothersome questions in the case is the contention of contestants, presented under different theories, that a new trial must be granted for the reason that they were entitled to and did not receive a trial of all of the material issues in the case. In disposing of this contention we limit our consideration to the issues framed by the petition and the proponents' answers thereto inasmuch as those matters form the basic premise for contestants' complaints.

We have set forth above the substance of the grounds upon which contestants relied to sustain their claim that the 1960 will was invalid in whole or in part. While we might well agree that some clarification would have been helpful, it is our view that the petition when liberally construed, tendered two primary issues, the first of which was that the 1960 will had been revoked in whole or in part by the described subsequent holographic instruments. While some argument is made by the proponents that such an issue is not material in a will contest, we disagree. Without question it was a matter that challenged the 'validity and subsistence' of the 1960 will. In re Stringer's Estate, 80 Wyo. 389, 345 P.2d 786, 789. See also § 2-83, W.S.1957; Bearman v. Camatsos, 215 Tenn. 231, 385 S.W.2d 91, 95. The second primary issue, alleged in the alternative, was that decedent was incompetent to execute the 1960 will. The issues so tendered were controverted by the proponents and we agree with contestants, to this extent at least, that such were the issues when the case came on for trial.

For some reason, however, which is not readily apparent from the record-no pretrial having been held and no separate trial of the issues having been ordered pursuant to the provisions of Rule 42(b), W.R.C.P., which in part provides for separate trial of issues deemed incompatible-the trial court undertook to limit and did limit the issues in the trial of the case to the matter of incompetency. That much is conceded by the proponents. Yet at the conclusion of the evidence the trial court directed the jury to return a verdict finding 'generally for the proponent-defendants and against the plaintiff-contestants' and that the 1960 will 'be not set aside or revoked.' On the basis of that verdict, judgment was entered non-suiting the contestants.

We hold that this was error. The material issue of claimed revocation was never tried. It is the function of the trial court in a case such as we have here initially to determine the law and the jury to determine the facts. Buckman v. United Mine Workers of America, 80 Wyo. 199, 339 P.2d 398, 402, rehearing denied 342 P.2d 236. That, however, does not furnish the complete answer to contestants' contention that they are entitled to a new trial of all of the issues in the case. As will be later developed, we have concluded that the contestants did receive a fair trial on the incompetency issue; and the underlying question is, Can the error made be cured by the ordering of a partial new trial on the revocation issues?

We think it can and that this should be done. We have jurisdiction of the case for the reason that the appeal is from a judgment of nonsuit. The circumstance presented, as we view it, falls within the scope of Rule 72(h), W.R.C.P., which provides as follows:

'Where a judgment is reversed in part for error relating only to an issue which is in no way dependent for its proper trial on any other issue or issues found to have been properly tried, and a partial new trial may be had without prejudice or injustice to any of the parties concerned, the cause may be remanded for the trial of the issue alone upon which the error was committed.'

While it must be conceded that there is a relationship between the two primary issues to the contestants' claim of the invalidity of the 1960 will, we are not persuaded that either was dependent upon the other in the trial of the case or that the proposed disposition would result in prejudice or injustice to any of the parties. That decision, of course, is ours to make, Cottier v. Sullivan, 47 Wyo. 72, 31 P.2d 675, 678; but we think it is aided by the apprehensions of the trial court, apparent from the record, not only that the issues were not interdependent but to undertake to try them together might well confuse a jury and result in prejudice to all of the parties.

That brings us to the next broad question of whether or not the trial court erred in directing a verdict for the proponents on the ultimate issue of the competency of the decedent to execute the 1960 will, and in discussing this question we shall also make reference to certain subsidiary questions raised by the contestants. The principal contention of contestants in this regard is that there was sufficient substantial evidence presented by them to require submission of the matter to the jury. That, of course, will entail some analysis of the evidence. In doing so we keep in mind the prevailing rule that on a directed verdict at the close of the taking of evidence consideration will be given to all evidence favorable to the contestants, together with the reasonable and legitimate inferences which may be deduced therefrom. In re Draper's Estate, Wyo., 374 P.2d 425, 427; In re Lane's Estate, 50 Wyo. 119, 60 P.2d 360, 363, 363-364.

We point out also that there is no ready formula for disposing of this phase of a will contest. To a great extent the outcome of each case is dependent upon the facts and circumstances present. In previous cases we have, of course, set forth certain guides that must be observed by the trier of the facts in determining the ultimate factual question of testamentary capacity; and it may be helpful to state in a general way the elements essential to show testamentary capacity, most of which we have recognized, and what Page on Wills says has 'fianlly been agreed upon' in substance by most courts. 1 Page on Wills, § 12.21, pp. 606-608 (1960), states:

'* * * Testator must have sufficient strength and clearness of mind and memory, to know, in general, without prompting, the nature and extent of the property of which he is about to dispose, and nature of the act which he is about to perform, and the names and identity of the persons who are to be the objects of his bounty, and his relation towards them. He must have sufficient mind and memory to...