Peterson's Estate, In re
| Decision Date | 22 February 1961 |
| Docket Number | No. 4304,4304 |
| Citation | 360 P.2d 259,77 Nev. 87 |
| Parties | ESTATE of S. PETERSON, also known as Svante Peterson, also known as Swaney Peterson, Deceased. Mildred Jane CLOSE, Appellant, v. Juanita D. FLANARY, Frances Atkinson, Vern Hursh, Nevada Chapter of the National Foundation for Infantile Paralysis, Respondents. |
| Court | Nevada Supreme Court |
Nada Novakovich, Reno, for appellant.
Lohse & Fry, Bible, McDonald & Jensen, Margaret Faires Baily, Reno, for respondents.
This is an appeal from the judgment admitting to probate the will of the above-named decedent dated May 27, 1955 and from the order denying appellant's motion for new trial. An earlier will dated May 4, 1953 was revoked by the later will. The effect of the judgment is likewise to deny relief to appellant sought in her contest of said will and in her petition to revoke the probate thereof. The judgment was based on the special verdict of the jury answering six specific interrogatories. Such interrogatories and the answers thereto are as follows:
'1. Did the said Svante Peterson at the time of the destruction of the Will of May 4th, 1953, and at the time of the execution of the questioned Will which is dated May 27, 1955, possess testamentary capacity as defined in the instructions?
(Answer 'Yes' or 'No')
'2. Was the signing of Svante Peterson of the questioned Will dated May 27, 1955 procured by the undue influence of Raymond S. Flanary?
(Answer 'Yes' or 'No')
of the said questioned Will dated May 27, 1955 a substituted page and not the original '2' of said questioned Will?
(Answer 'Yes' or 'No')
'4. Was the signature on page 2 of said questioned Will dated May 27, 1955 forged by Raymond S. Flanary?
(Answer 'Yes' or 'No')
'5. Is the signature on the Will dated May 27, 1955, the guided signature of Svante Peterson?
(Answer 'Yes' or 'No')
'6. Was the questioned document dated May 27, 1955, attested by at least two competent witnesses, subscribing their names to the Will in the presence of the testator?
(Answer 'Yes' or 'No')'
The foregoing interrogatories and answers indicate the nature of the contest. However, for further explanation of the specific grounds of such contest and of appellant's petition for revocation of probate, we note the recitals in her petition as follows:
1. That such will is not the last will and testament of the decedent and that it is invalid.
2. That at the time of the execution of such will the testator was not of sound mind and memory but was mentally incapacitated.
3. That the will was not executed, attested and subscribed in conformity with the statutory requirements.
4. That such will does not bear the genuine signature of the testator, and was not signed by him or by some person in his presence or by his express direction.
5. That the will was forged by Raymond S. Flanary.
6. That it was not attested by at least two competent witnesses subscribing their names in the presence of the testator.
7. That it was procured by the fraud and undue influence of Raymond S. Flanary.
8-9. That said Flanary substituted page 2 containing a bequest to him of $10,000 and bequest to his wife of $5,000 after the purported attestation and subscription of the will itself, which had not contained such bequests.
10. That the said bequests and other bequests are unnatural, unreasonable, and unjust and to purported beneficiaries who were not the natural objects of the testator's bounty.
11. That said Flanary destroyed a prior will dated May 4, 1953 which had been properly executed and attested when the testator was competent and which had named the protestant as sole beneficiary.
12. That said Flanary had in his own possession the will of May 27, 1955 from that date to August 9, 1955, when it was offered for probate.
Such listing also included sundry evidentiary matters in support thereof, which, so far as necessary, are referred to later. The material allegations of the contestant are denied by answer of the proponents but such proponents admitted the value of the estate as [$140,000]; that they are the beneficiaries named in the will; that the protestant was the sole beneficiary of the former will of May 4, 1953; that the testator at the time of the execution of the admitted will was blind and approximately years of age; that Flanary was an attorney at law and the attorney for the testator at the time of the execution of his 1955 will; that the relationship of attorney and client existed between Flanary and the testator at the time; that Flanary drafted such will, but under the directions and instructions of the testator; that it was typed on his stationery; that by it he was granted a bequest of $10,000 and his wife a bequest of $5,000, and that Flanary was named therein as executor; that the will was typewritten on four pages, the signature of the testator appearing on page 2, the same page bearing the bequests to Flanary and his wife; that the will of May 4, 1953 was destroyed by Flanary, but under specific instructions from the testator, who thereby intended to revoke said will of May 4, 1953.
On April 16, 1958, Flanary submitted his resignation as executor and in open court on April 21, 1958 renounced his legacy.
On the issues thus made the case went to the jury, with the resulting special verdict above recited. The case took ten days to try, and the record before us includes a thousand pages of testimony, four volumes of pleadings and exhibits, in addition to numerous large exhibits, from which opposing expert handwriting witnesses testified. These are the usual enlarged photographs of the admitted genuine signature of the testator and of the signature on the questioned document. The briefs on appeal in this court comprise some 600 pages, 1 and cite some 300 authorities.
Function of This Court.
The labor of this court will be greatly lightened by our disposition of appellant's first contention. Relying on an opinion of the Supreme Court of Oklahoma in Anderson v. Davis, 208 Okl. 477, 256 P.2d 1099, and upon an opinion of the Supreme Court of Missouri in Schneider v. Johnson, 357 Mo. 245, 207 S.W.2d 461, appellant asserts that will contest cases are purely of equitable cognizance and that it is the duty of this court to weigh the evidence and direct the entry of such judgment as we consider proper under such evidence. Suth is not the rule in Nevada. Agricultural Insurance Co. of Watertown, N. Y. v. Biltz, 57 Nev. 370, 64 P.2d 1042. As in cases at law, we do not disturb the findings of the court or the jury when supported by substantial evidence. Such also seems to be the rule followed in a majority of the state courts. On all the factual issues presented in appellant's opening and reply briefs--the asserted mental incompetency of the testator, undue influence exercised upon him, forgery of his signature, the substitution of a spurious page in his will, the challenged execution, subscription, and attestation thereof--appellant attacks the credibility of the proponents' witnesses, and contends that the evidence preponderates in favor of the contestant of the will. These were all arguments for the jury and the trial court.
Appellant's specific assignments of error are as follows: 1. The judgment is against the weight of the evidence on all issues. 2. Proponents failed to meet their burden of proof that the testator was mentally competent at the time of the execution of the contested will. 3-4. The proponents did not rebut the presumption of fraud or of undue influence. 5. The contested will was not executed, attested, and subscribed according to law, and that the judgment to the contrary is against the weight of the evidence. 6. Proponents did not meet their burden of proving the due execution subscription, and attestation of the will. 7. The judgment to the effect that page 2 of the will is not a substituted page is against the weight of the evidence. 8. The overruling of contestant's objection to the testimony of the attesting witnesses as to the contents of the will. 9. The judgment that the signature on page 2 of the will is not a forgery is against the weight of the evidence. 10. Error of the trial court in overruling contestant's objection to testimony of Raymond S. Flanary as to purported conversations with the testator. 11. Error in allowing instructions 5, 8, 11, 12, and the form of the special verdict. 12. Error in refusing contestant's requested instructions 1-24, inclusive. 13. Error in overruling the objection to the testimony of Vern Hursh, a beneficiary, to conversations with the testator. 14. Error in overruling the objection of the contestant to the testimony of Vern Hursh as to the competency of the testator. 15. Error in overruling contestant's objection to the testimony of Frances Atkinson, a beneficiary, to testify to the competency of the testator. 16. Error in limiting cross-examination of Marg McElee. 17. Denial of new trial based on misconduct of jury.
It will be noted that assignments of error Nos. 1, 3-4, 5, 7, and 9 are all based upon insufficiency of evidence. The issues to which these assignments are directed are the identical issues of fact disposed of by the jury's special verdict. Under our notation above as to the function of this court, our review will be limited to ascertainment of whether there was substantial evidence to support the special verdict of the jury as to each of the items to which the specification of error is directed. We shall then devote our attention to the remaining specifications, which raise questions of law.
Assignment of error No. 1 is simply an accountant's total of all the other assignments having to do with the weight of the evidence. It does not require separate attention.
Assignments 3-4 are to the effect that the presumption of fraud and undue influence was not rebutted. This has to do with the execution of the testator of the will of May 27, 1955...
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