Nelson's Estate, In re

• Decision Date: 09 February 1954
• Docket Number: No. 2621,2621
• Citation: Nelson's Estate, In re, 266 P.2d 238, 72 Wyo. 444 (Wyo. 1954)
• Parties: In re NELSON'S ESTATE. PETERSON et al. v. McMICKEN et al.
• Court: Wyoming Supreme Court

Page 238

266 P.2d 238

72 Wyo. 444

In re NELSON'S ESTATE PETERSON et al. v.McMICKEN et al.

No. 2621.

Supreme Court of Wyoming.

Feb. 9, 1954.

Ellery, Gray & Hickey, Cheyenne, and oral argument by Norman B. Gray, Cheyenne, for contestants and appellants.

Eph U. Johnson, Rawlins, Lathrop & Lathrop, Cheyenne, and oral argument by Carleton A. Lathrop, Cheyenne, for contestees and respondents.

BLUME, Chief Justice.

This is a contest of a will.Jarda Elizabeth Nelson died in Carbon County, Wyoming, on September 2, 1951.She had property which she had inherited from her deceased husband who died in 1939.The property consisted of grazing and other lands amounting to more than 50,000 acres and some sheep and other personal property.She executed a will on December 28, 1944.In that will she left the main portion of that property consisting of the lands, sheep and other property connected with running the ranch to Elmer G. Peterson, her nephew.She stated that she made this provision 'in recognition of the faithful services rendered in the management and care of my said sheep and livestock outfit when I was in dire need of a manager, the many sacrifices made by him in my behalf and the untiring patience and devotion shown me at all times.'She left the sum of $10 to her brother, Hugo E. Peterson, who subsequently died in 1948, leaving as his heir Hugo E. Peterson, Jr.She also made some provision for her niece Rogene Peterson, sister of Elmer, which was however changed in the codicil hereinafter mentioned.She also made provision for her mother.That particular provision will be copied verbatim hereafter.She made also the following provision: 'All the rest and residue of my estate, of any kind and description, real and personal, I devise and bequeath to my sister, Ellen M. Kastner.'Her mother, her brother and her sister and Elmer and Rogene Peterson(the latter children of Elmer, another brother of deceased) were the only relatives who would have taken the property if the testatrix had died intestate.She appointed Clarence A. Brimmer as executor of her last will and testament.

Subsequently on March 25, 1951, she executed a codicil substituting A. R. McMicken as executor of her will and codicil.She also made a definite provision for Rogene Peterson, leaving her the sum of $20,000.She further provided that the executor might withhold all state and federal inheritance taxes found to be due on the respective shares of the beneficiaries.In other respects she confirmed the will of December 28, 1944, in the following terms: 'I do hereby ratify and confirm my said Will as modified, altered and changed by this Codicil, which I specifically direct be attached and affixed to my said Will dated December 28, 1944.'The will and codicil were duly admitted to probate on October 4, 1951.Thereafter on March 15, 1952, Alma A. Peterson, Ellen M. Kastner, and Hugo E. Peterson, Jr., filed a petition contesting the will and codicil upon the ground that when the will and codicil were executed Jarda Elizabeth Nelson did not have testamentary capacity and that these documents were executed because of undue influence exercised upon the person of testatrix by Elmer G. Peterson.The contest came on for trial before the court with a jury.The court submitted the following questions to the jury to be answered:

'1.Was Jarda Elizabeth Nelson, at the time of the execution of the alleged Will, dated December 28, 1944, of sound and disposing mind?'

The jury answered this by 'Yes.'

'2.Was Jarda Elizabeth Nelson, at the time of the execution of the alleged Codicil, dated March 25, 1951, of sound and disposing mind?'

The jury answered this question by 'Yes.'

'3.Was Jarda Elizabeth Nelson induced to sign the alleged Will, dated December 28, 1944, by means of undue influence of Elmer Peterson?'

The jury answered this question by 'No.'

'4.Was Jarda Elizabeth Nelson induced to sign the alleged Codicil, dated March 25, 1951, by means of the undue influence of Elmer Peterson?'

The jury answered this question by 'No.'

Thereupon on March 15, 1953, judgment was entered denying the prayer of the contestants and confirming the admission to probate of the last will and codicil of the deceased.Thereupon Alma A. Peterson and Ellen M. Kastner appealed the case to this court by direct appeal.

The record in this case consists of considerably more than 1000 typewritten pages.The evidence is voluminous and to keep this opinion within reasonable compass, it will, of course, be necessary to considerably condense the testimony, leaving, however, if possible, a fair presentation of the facts in the case.

1.Susceptibility to undue influence.

Contestants in the oral argument in this court abandoned the claim that testatrix did not have testamentary capacity.They now rely upon the fact that the will in question in this case is invalid on account of undue influence upon testatrix exercised by Elmer G. Peterson, nephew of the testatrix.They introduced one class of evidence which they consider as showing susceptibility of such undue influence.They summarize that evidence in their brief somewhat as follows:

The testatrix was born in Leadville, Colorado, on September 13, 1889.She was the eldest of four children, the other children consisting of two brothers, Elmer and Hugo, and a sister Ellen, who subsequently married Kastner.The testatrix became a nurse and at one time became superintendent of the hospital at Rawlins.During that period she was immaculately neat and clean.In 1916, she married Andy Nelson, the operator of a large sheep outfit with headquarters at Walcott, Wyoming.A fine house was built at Walcott which the Nelsons occupied for some time.About 1934, or before, testatrix became afflicted with arthritis and that affliction increased as time went along.She told one of the witnesses in the case that her affliction may have started with a stroke.At that time she was still fairly neat but not so careful about her personal appearance.She became irritable and cross and would quarrel with her husband.While in the office of Clarence Brimmer, she would at times shout and pound the table.By the year 1944, she had grown worse with her arthritis, at times suffering excruciating pain.She was terribly crippled and had deformities all over her body, hands, feet and back, and was unable to move about easily.By the year 1944she had become slovenly, untidy and unclean about her clothes and her person.She would not wash her hair; her clothes and hose were worn and ragged.At about this time she also had a Mexican houseboy about 30 or 35 years old doing house work for her and cooking and looking after her personal needs such as taking her to the toilet, giving her baths and one time he helped Dr. Jeffrey give her an enema.(How often the Mexican so helped her does not appear.)Testatrix also suffered from varicose veins.This would cause itching and she would scratch the area and then without washing her hands, would skim cream from milk in a pan by running her fingers around the edge of the pan.(It does not appear how often that occurred.)By the year 1934, testatrix and her husband had quit living together as husband and wife and she would not permit him to sleep in the big house because he and his dog were dirty.She raised cain about his smoking a pipe in the house and having liquor there.He moved to a log cabin located about 100 yards from the big house.The log cabin did not have modern facilities.Her husband died in 1939.Testatrix for a while continued to sleep in the big house but cooked the meals in the log cabin.She had wrapped all the furniture, except the bedroom furniture, with paper and burlap and it stayed that way for years.She finally moved out of the big house and lived entirely in the log cabin.During this time she had lost all sense of modesty.(Argumentative.)The Mexican houseboy performed the most intimate tasks for her.She would not pull the curtains in the big house at night and could be seen through the windows in the nude.(How often this occurred does not appear.)She would go out into the fields all day watching the men in whatever they might be doing.During this period, according to the witness Balenovic, she had become very erratic and inconsistent.She would agree to the sale of the ranch and then change her mind.(This apparently was largely because she was afraid that the Government would take a large part of the purchase money).She became penurious and would not go to the hospital and would not employ a nurse because, for one thing, it cost too much.She refused to raise the wages of her men.She was stubborn in the extreme.She was also a schemer.She was also eccentric.The witness, Mrs. Potter, a nurse, stated that in 1944, the mental condition of testatrix was not good and she was not a normal person.She died from auricular fibrillation in September 1951.

Counsel, however, state in their brief 'Even though this situation existed, it appears from the record that she was able to run this rather large sheep outfit.She gave orders with respect to work to be performed, hired and fired men, kept the time of her men and paid them by check, purchased groceries and supplies and in general handled her own business affairs.She seemed to know what property she owned and who her relatives were.It was difficult for her to get around to oversee the ranch but her help would put her in a pickup truck and she was out over the ranch most every day in the summer particularly when haying was on.'

One Joe Cruz was a witness for the contestants.He testified that the testatrix knew everything about her sheep and cattle; that she always surprised the witness by the knowledge about her landmarks and her number of sheep and her number of cattle and he often watched her stand around and count the sheep along with the foreman and along with the rest of the men.Testatrix knew right well what she was doing all...