Sewall v. McGovern

• Decision Date: 24 November 1922
• Docket Number: 1037
• Citation: 211 P. 96,29 Wyo. 62
• Parties: SEWALL v. McGOVERN, ET AL
• Court: Wyoming Supreme Court

211 P. 96

29 Wyo. 62

SEWALL v. McGOVERN, ET AL

No. 1037

Supreme Court of Wyoming

November 24, 1922

Judgment affirmed.

William B. Ross and Avery Haggard, for plaintiff in error.

The court erred in requiring proponent to produce his own testimony as to all of the circumstances surrounding the execution of the will and of his relations with the testatrix, and in permitting contestants to cross-examine him as to these matters. The testimony of attesting witnesses established prima facie case. Under our statute (6712-6716 C S.) the issues of testamentary capacity, freedom from fraud and undue influence, and execution and attestation of the will are to be raised by petition of contestants and answer of proponent, and tried as thus joined. The California decisions govern. (Estate of Latour, 140 Cal. 414, 73 P 1070, 74 P. 441, cited with approval in Wood v Wood, 25 Wyo. 26.) It was held in that case that the burden of proof is on contestants as to all issues mentioned in the statute. An allegation as to non-execution of the will is a negative allegation and does not change the rule, since such an allegation is a part of contestants' cause of action. The fact that a contest was pending which would bring out all of the evidence on both sides, placing the burden of proof on contestants, the court should have been satisfied with even a less strong prima facie case than where there was no contest. The evidence offered by proponent and which stands unimpeached, established due and formal execution of the will by testatrix who was of sound mind. This is all the statute requires. The weight of authority is to the same effect. (40 Cyc. 1284; Chandler v. Fisher, 290 Ill 440, 125 N.W. 324; Lorean v. Lorean (Mo.) 208 S.W. 241; Wood v. Wood, 25 Wyo. 26.) The burden of proof rested upon contestants, (Wood v. Wood, supra.) The judgment is not sustained by sufficient evidence. The oral conclusions stated by the trial court at the close of testimony and arguments which is included in the Bill of Exceptions shows a clear misconception of the evidence and further shows that the findings of the trial court were based upon an assumed statement of facts, unsupported by any evidence. The testimony of proponent as to circumstances attending the preparation and execution of the will stands uncontradicted. Proponent lived in a house adjoining the home of testatrix; the testimony of subscribing witnesses was to the effect that they called at proponent's house on other business and were called in by testatrix to subscribe their names as witnesses to the will. The evidence showed testatrix to be in normal health. The distribution of her property was not unnatural in view of the circumstances, she was without relatives, except a niece from whom she had become estranged. A large number of witnesses called by contestants showed much bitterness of feeling against proponent growing out of other matters. The evidence as to lack of testamentary capacity was insufficient, --at most, it merely established eccentricities and peculiar notions, and feelings entertained by testatrix toward various people at different times, all of which was offset by the testimony of several witnesses to the effect that testatrix was exceedingly rational in all matters pertaining to her property and business affairs. (40 Cyc. 1011-13.) The judgment should be reversed.

William E. Mullen and Roderick N. Matson, for defendants in error.

No objection was made by proponent to the cross-examination of the subscribing witnesses to the will. Proponent offered himself as a witness, presumably to prove the fact of death and value of decedent's estate. Objection is made to the cross-examination of proponent by counsel for contestants. It had been shown by testimony of the subscribing witnesses that proponent was present and had attached the signature or signed the name of testatrix to the will. The trial court required proponent to give as a part of his prima facie case, further testimony as to the circumstances attending the execution of the will. It devolves upon a court to require the propounder to prove a will even in the absence of a contest. (40 Cyc. 1272). As the testimony of proponent on this point had been completed, including his cross-examination by contestants' counsel, the court called upon contestants to present evidence in support of their contest, all of which was done, followed by evidence offered by proponent and rebuttal by contestants. Upon submission of the case and agreement of parties, the court allowed all of the evidence of proponent to be considered as part of his defense. The case of Estate of Latour, cited by plaintiff in error, holds that the preliminary proof offered in support of the admission of the will must be satisfactory to the court. The Wood case is hardly in point for the reason that the preliminary proofs offered in support of the admission of the will in that case were regular and free from circumstance indicating fraud, undue influence or lack of testamentary capacity.

It devolved upon proponent to produce additional evidence to prove the will, if called for by the court. (Kirby v. Sellards, 28 L. R. A. (N. S.) 270.) For example, in a case where proponent prepared the will and was active in its execution, thus creating a suspicion of fraud, he must give only the clearest evidence of fact as to the real desire and will of the testator. (Trumble v. Gibbons, 22 N.J.L. 117, 51 Am. Dec. 253; Purdy v. Hall, 134 Ill. 298, 25 N.E. 645.) Where testator was feeble in mind and one of the legatees gave instructions to and paid fees of the draftsman. (Howell v. Taylor, 50 N.J. Eq. 426, 26 A. 566.) Where testatrix was of advanced age, impaired faculties, feeble in mind and body, unable to write and signed by a mark and there being a short duration of time between making the will and the death of testatrix. (In Re: Elster, 39 Misc. 63, 78 N.Y.S. 871; Kelly v. Sette, 68 Tex. 16, 2 S.W. 870; Cuthbertson's Appeal, 97 Pa. 167.) Proof required to repel the suspicions arising under the foregoing circumstances must be clear and satisfactory (Lyons v. Campbell, 88 Ala. 862.) The findings and judgment of the trial court are supported by evidence. The circumstances attending the preparation and execution of the alleged will appear much stronger against its validity than any of the facts set forth in the cases above cited. In fact, the story told by proponent sounded so improbable and his testimony so inconsistent that it is doubtful whether any court would sustain the will even in the absence of a contest. The instrument, itself, shows different colored inks used in subscribing the names of the witnesses from that used by proponent in subscribing the name of the testatrix, and the entire transaction shows unmistakable evidence of fraud. It is shown that the testatrix was of advanced age, feeble in mind and body, and, in fact, in a dying condition on the date on which the will was alleged to have been executed by her. The trial court after listening to all of the evidence and observing the demeanor of the witnesses, passed upon the credibility of the witnesses and the weight of their testimony, and thus arrived at a conclusion. It seems unnecessary to refer to the numerous decisions of this court that it will not disturb judgments rendered upon conflicting evidence, nor at all, unless there be no evidence to sustain the judgment. The recent ruling on this point being that in the case of Bissenger & Co. v. Weiss (Wyo.) 195 P. 527. Plaintiff in error procured a stenographic report of the oral discussion of the evidence by the trial court at the close of the case and caused it to be incorporated in the Bill of Exceptions, and attempted to predicate an argument upon it treating it as a part of the record. We contend that it is not a part of the record, should not be considered as findings made in the case, and has no bearing on the merits of this controversy one way or another, nor can the remarks of the trial court be considered in any respect for purposes of review. (School District v. Western Tube Co., 13 Wyo. 32; Hahn v. Citizens State Bank, 25 Wyo. 481; Gramm v. Fisher, 3 Wyo. 595.) The judgment should be sustained.

Avery Haggard and Ross & Ellery, in reply.

The trial court made no special findings; it was the duty of the trial court to make special findings whether requested to do so or not. (6713 C. S.) Failure to make special findings in a will contest leaves the trial court in a position similar to that resulting from the failure to make special findings when so requested in other civil cases. (5784 C. S.) Findings of the court upon the facts have the same effect as the verdict of a jury. (Rhodes v. U. S. National Bank, 66 F 512). A statute requiring special findings is mandatory and a judgment not based upon such findings is, at least, voidable, if not void. (Carpenter v. Yeadon Borough, 57 A. 837; McHale v. Wellman, 46 S.W. 448; Speegle v. Leese, 51 Cal. 415; Davison v. Keller, 152 N.W. 106; Thomas v. Issenhuth, 100 N.W. 436; Hawkinson v. Patway, 126 N.W. 683; Leach v. Church, 10 Ohio State, 149; School District v. Western Tube Co., 13 Wyo. 304; Hamil v. Talbott, 72 Mo.App. 22.) The trial court, in fact, failed to make any special findings. If there was a lack of testamentary capacity for execution of the will by testatrix at all, there would, of course, be no undue influence practiced. The conclusion of the trial court is lacking in specific statement. The findings should be, at least, as specific as the pleading (Farmer v. St. Croix Power Co., 93 N.W. 830). A conclusion of law does not take the place of a finding of fact (Zachariaw v. Swanson, 77 S.W. 627; In Re Daley's Estate, 135 P. 953). The findings fail to cover all of the material issues in the case. The statute requ...