Schwarz v. Taeger

• Decision Date: 30 July 1927
• Docket Number: 4811
• Citation: 44 Idaho 625,258 P. 1082
• Parties: EMMER E. SCHWARZ, Respondent, v. BERTHA C. TAEGER, EMMA A. PATERKA, ROBERT F. SCHWARZ, JULIUS SCHWARZ, CHRISTIAN F. SCHWARZ, Heirs of OTTO HENRY SCHWARZ, Deceased, Appellants
• Court: Idaho Supreme Court

258 P. 1082

44 Idaho 625

EMMER E. SCHWARZ, Respondent, v. BERTHA C. TAEGER, EMMA A. PATERKA, ROBERT F. SCHWARZ, JULIUS SCHWARZ, CHRISTIAN F. SCHWARZ, Heirs of OTTO HENRY SCHWARZ, Deceased, Appellants

No. 4811

Supreme Court of Idaho

July 30, 1927

WILLS-PLEADING-AMENDMENTS-DISCRETION OF TRIAL COURT-NO ABUSE FOR REFUSAL TO ALLOW AMENDMENT FILED TOO LATE-WITNESSES - IMPEACHING TESTIMONY HELD NOT ERRONEOUS - TESTAMENTARY CAPACITY-PREJUDICIAL TESTIMONY-LETTERS PROPERLY IDENTIFIED, ADMISSIBLE-PROPONENTS OF WILL-COSTS.

1. Allowance of amendments is largely within discretion of trial court.

2. Where amendment to petition asking for probate of will was not offered for two years and two months after petition contesting will and issue was not raised in probate court trial court held not to have abused discretion in not allowing amendment.

3. Where witness in will contest was asked on cross-examination relative to having testified to certain facts in probate court as to matters germane to issues, admitting impeaching testimony relative thereto held not erroneous in that testimony was peculiarly a question for jury.

4. A man may possess testamentary capacity, although unable to transact ordinary business.

5. A man who is able to transact ordinary business is clearly competent to make will.

6. In will contest, evidence to effect that deceased was not able to transact ordinary business held prejudicial where there was no instruction to effect that one might possess testamentary capacity, even though unable to transact business.

7. In action contesting validity of will, letters in handwriting of deceased, properly identified, should have been admitted as showing his condition of mind.

8. Proponents in will contest, by objecting to income tax statements made by deceased, did not waive error in excluding, over their objection, letters in testator's handwriting, not of similar probative effect on issues in case.

9. Under C. S., sec. 7764, making rules of practice in sections 6591-7239 applicable to probate practice, and section 6847 directing that plaintiff shall open and defendant close, and sec. 7452, subd. 5, making will contestant plaintiff and petitioner defendant, proponents of will did not have right of opening and closing.

10. Costs in action contesting validity of will cannot be awarded until final determination of case, and each party will be required to pay own costs, subject to recovery, depending on final outcome.

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Edgar C. Steele, Judge.

Action testing validity of will. Judgment for respondent. Reversed and remanded for new trial.

Reversed and remanded, with instructions. Costs awarded. Petition for rehearing denied.

James H. Forney and O. C. Moore, for Appellants.

Respondent, by the filing of her petition for the probate of the instrument here in question as the last will and testament of Otto Henry Schwarz, thereby expressed her election to treat said will as valid and to accept the terms thereof and the benefits conferred by its terms upon her, thereby precluding and estopping herself from subsequently contesting its validity. (Alexander on Wills, pp. 2038, 2040, secs. 1327, 1328; 40 Cyc., pp. 1245, 1978; Camplin v. Jackson, 34 Colo. 447, 83 P. 1017; In re Moore's Estate, 62 Cal.App. 265, 216 P. 981; Cook v. Lawson, 63 Kan. 854, 66 P. 1028; Dunn v. Vineyard (Tex. Civ. App.), 251 S.W. 1043.)

A higher degree of mental competency is required for the execution of a deed or contract than is necessary for the execution of a valid will. Hence, the court erred in permitting witnesses to testify that in their opinion Otto Henry Schwarz, subsequently to his paralysis, was mentally incapable of transacting ordinary business. (Alexander on Wills, p. 444, sec. 322; Watson's Exr. v. Watson, 137 Ky. 25, 121 S.W. 626; In re Holloway's Estate, 195 Cal. 711, 235 P. 1012; Turner v. Houpt, 53 N.J. Eq. 526, 33 A. 28; Green v. Maxwell, 251 Ill. 335, 96 N.E. 227, 36 L. R. A., N. S., 418; Jones v. Belshe, 238 Mo. 524, 141 S.W. 1130; Coleman v. Marshall, 263 Ill. 330, 104 N.E. 1042; Successors of Jones, 120 La. 986, 45 So. 965.)

The exclusion of the letters offered in evidence in rebuttal by appellant, conceded, some of them, to have been written by the testator, and the others to have been signed by him, was error, since, as written declarations subsequently to his illness and very close to the time of the execution of the will, they afforded the best possible evidence of his mental condition. (In re Burnham's Will, 24 Colo. App. 131, 134 P. 254; Baker v. Baker, 202 Ill. 595, 67 N.E. 410; Bulger v. Ross, 98 Ala. 267, 12 So. 803; 40 Cyc., p. 1024.)

The burden was on appellant in the first instance to establish competency on the part of Schwarz to execute a will and in the absence of any proof the will would have been rejected without more. Hence, the right to make the opening and closing arguments to the jury rested with appellant. (40 Cyc., p. 1328; Seebrock v. Fedawa, 30 Neb. 424, 46 N.W. 650; Rawley Appeal, 118 Me. 109, 106 A. 120; Mayes v. Mayes (Mo.), 235 S.W. 100; In re Burnham's Will, supra.)

The court was without authority to award costs against appellant Christian F. Schwarz, since he was not a contestant of the validity of the will but a proponent thereof for probate, as one of the executors named therein. He was entitled, on the other hand, to recover all costs and disbursements incurred in the proceeding. (C. S., secs. 7467, 7769, 7771; 40 Cyc. 1632; In re Brady, 10 Idaho 366, 79 P. 75; Meeker v. Meeker, 74 Iowa 352, 7 Am. St. 489, 37 N.W. 773.)

A. H. Oversmith, for Respondent.

Witness Moore gave his opinion as to the testamentary capacity of testator, and there was no error committed by way of impeachment if he gave previous testament to the effect that the testator was mentally paralyzed. The word "paralysis" has a definite meaning, meaning a loss of function, partial or complete, whether of intellect, sensation, movement or otherwise. (Webster's Universal Dictionary; In re Scott's Estate, 128 Cal. 57, 60 P. 527.)

A witness acquainted with the facts may give an opinion on the mental capacity of a person to transact ordinary business, make a deed, contract or will. (Koppe v. Koppe, 57 Tex. Civ. App. 204, 122 S.W. 68; Campbell v. Dick (Okl.), 172 P. 783; Atkins v. State, 119 Tenn. 458, 105 S.W. 353, 13 L. R. A., N. S., 1031; Witthoft v. Gathe, 38 Idaho 175, 221 P. 124.)

By introducing similar evidence as to the capacity of testator to transact ordinary business or dispose of property by will appellant waived any error of trial court in permitting answers to similar questions on the part of respondent. ( Adams v. Ristine, 138 Va. 273, 31 A. L. R. 1413, 122 P. 126.)

Letters in the handwriting of a testator are inadmissible upon an issue of testamentary capacity without evidence that testator had acted upon the contents of letters or approved of them. ( Crumbaugh v. Owen, 238 Ill. 497, 87 N.E. 314; In re Pinney's Will, 27 Minn. 280, 6 N.W. 791, 7 N.W. 726.)

On the trial of will contests, the contestant becomes the plaintiff and the petitioner becomes the defendant. Therefore contestant had the right of opening and closing argument before the jury. (C. S., sec. 7452; Kerr's Cal. Code Civ. Proc., sec. 1312; Estate of Joseph, 118 Cal. 660, 50 P. 768; Estate of Scott, 128 Cal. 57, 60 P. 527; Estate of Dalrymple, 67 Cal. 444, 7 P. 906.)

GIVENS, J. Wm. E. Lee, C. J., and Budge and T. Bailey Lee, JJ., concur, Taylor, J., concurs in the conclusion.

OPINION

GIVENS, J.

The sole question involved in this appeal is whether Otto Henry Schwarz possessed testamentary capacity; his widow, respondent herein, urging that he did not; his brother, Christian F. Schwarz, and other appellants urging that he did. A jury found that he did not.

September 27, 1923, the respondent filed a petition asking that the purported will filed therewith be probated. November 13, 1923, respondent filed her objections to the will on the ground that the deceased did not possess testamentary capacity. September 6, 1924, appellant, Christian F. Schwarz, filed his petition asking that the will be probated. May 20, 1925, respondent filed her answer to appellant's petition and January 21, 1926, appellant sought to file an amendment to his petition charging estoppel against respondent because her petition of September 27, 1923, estopped her from filing her petition November 13, 1923.

The amendment was offered two years and two months after respondent filed her petition contesting the will. The allowance of amendments is largely within the discretion of the trial court and in view of this lapse of time and the further fact that such issue had not been raised in the probate court there was no abuse in not allowing the amendment.

Frank L. Moore drew the will and was one of the attesting witnesses, and testified for appellant to the effect that in his opinion the testator was competent to make a will. He was asked on cross-examination if he had not testified at the hearing in the probate court as follows:

"He (Schwarz) made comments upon his physical condition and told me he never expected to get well, and he didn't know when he would have another stroke; he was suffering then from physical paralysis, and maybe mentally, and he didn't know when he would have another stroke or words in substance and to that effect."

To which question Mr. Moore responded:

"The question and the answer were probably, with the exception of 'maybe mentally,' I have no remembrance of making any such statement. If I did make it, it was an error inadvertent and wrong."

Later over objection, certain witnesses were called by respondent who testified that Mr. Moore had...