Slater v. Phipps
| Decision Date | 16 November 1943 |
| Docket Number | 31004. |
| Citation | 143 P.2d 133,193 Okla. 267,1943 OK 383 |
| Parties | SLATER et al. v. PHIPPS et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Testamentary capacity, or the lack thereof, is a question of fact. There is no rule by which it may be determined, with precision, where capacity ends and incapacity begins, but this question should be determined from all the facts and circumstances of each particular case; and, where the evidence fairly and reasonably supports the finding of testamentary capacity, the same will not be disturbed on appeal.
2. Ordinarily, as generally stated, the test of testamentary capacity is the testator's capacity to understand the effect and consequence of his act, at the time the will is executed.
3. A presumption of sanity goes with everyone, and the burden of proving unsoundness of mind in a will contest rests on the contestant.
4. On appeal from judgment admitting will to probate, when contest was on the ground of lack of testamentary capacity, this court will review the record, but will not reverse unless finding and judgment is clearly against the weight of the evidence.
Appeal from the District Court, Kiowa County; John B. Wilson, Judge.
Will contest by Mrs. Ada M. Slater and another against Everett R Phipps and another. The county court denied probate of the will, and the district court upon appeal directed that probate thereof be allowed, and contestants appeal.
Affirmed.
Tolbert Tolbert & Gillespie, of Hobart, for plaintiffs in error.
R Place Montgomery and Clayton Carder, both of Hobart, for defendants in error.
This cause concerns a contest of the admission of a will to probate upon the sole ground of asserted lack of testamentary capacity. The county court denied probate of the will and the district court, upon appeal, directed that probate thereof be allowed.
Applicable rules are stated in paragraphs two and three of Bilby et al. v. Stewart et al., 55 Okl. 767, 153 P. 1173, as follows:
In McClure, Ex'r, v. Kerchner, 107 Okl. 28, 229 P. 589, appears the following in paragraph five of the syllabus: "A presumption of sanity goes with everyone, and the burden of proving unsoundness of mind in a will contest rests on the contestant."
And the following in the syllabus in Harden v. Harden, Okl.Sup., 134 P.2d 351: "On appeal from judgment admitting will to probate, when contest was on the grounds of undue influence and lack of testamentary capacity, this court will review the record, but will not reverse unless finding and judgment is clearly against the weight of the evidence."
Testator took his own life in July 1941. The will offered for probate is dated April 9, 1940. Testator was seventy-seven years of age at the time of his death. He had been a farmer all, or nearly all, of his life and had lived in the community where he died since 1901. His estate is valued at about $10,000, consisting of some two farms and small rent properties in Hobart. His wife, with whom he had lived since early life, died in July, 1939. There were surviving four children, two of whom appear herein as proponents and two of whom appear as contestants of the will.
Testator was confined in a state hospital of Missouri from July to September, 1900. His case was therein diagnosed as melancholia and he was discharged therefrom as recovered.
The estate seems to have been accumulated through the joint efforts of testator and his wife since their removal from Missouri to Oklahoma in 1901.
Numerous witnesses were heard on be-half of the proponents and contestants and we...
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