Snyder v. Raymond, 5462

• Decision Date: 28 February 1930
• Docket Number: 5462
• Citation: 285 P. 478,48 Idaho 810
• Parties: JOHN SNYDER, Appellant, v. CECELIA RAYMOND, Respondent
• Court: Idaho Supreme Court

285 P. 478

48 Idaho 810

JOHN SNYDER, Appellant, v. CECELIA RAYMOND, Respondent

No. 5462

Supreme Court of Idaho

February 28, 1930

WILLS-REVOCATION-SUBSEQUENT WILL-EXECUTION OF UNDER MISTAKE OF LAW AND FACTS-APPEAL AND ERROR-UNDERTAKING ON APPEAL-EXECUTION BY FOREIGN SURETY COMPANY-COUNTER-SIGNATURE OF RESIDENT AGENT.

1. Appeal from adverse judgment in will contest proceedings will not be dismissed on the ground that undertaking furnished by foreign surety company was not, as required by C. S., secs 5008, 5009, countersigned by resident agent, when such bond was executed by surety company's attorney-in-fact acting under certificate of authority as resident agent, although such fact did not appear on face of bond, there being no requirement that bond so issued should be authenticated by countersigning by the same hand that issued the bond.

2. Records and affidavits filed by respondent in opposition to appellant's motion for new trial in will contest proceedings which trial judge certifies that he did not consider cannot be brought up for consideration on appeal by suggestion of diminution of records, the supreme court, in reviewing the ruling, being restricted to matters which the trial judge considered.

3. When trial judge mistakenly refuses to consider records and affidavits filed in opposition to motion for new trial, the remedy is not by diminution of records, but by motion to remand cause for further hearing on motion.

4. Where motion for new trial in behalf of appellant was denied it becomes immaterial that trial court refused to consider records and affidavit filed by respondent in opposition to motion for new trial.

5. In will contest proceeding, where issue as to execution of will under mistake of law and fact was injected into record by recitals of defendant and her witnesses as justification and explanation of testatrix's conduct, objection on appeal that there was no such issue within pleading cannot be considered to sustain judgment admitting will to probate.

6. A party will not be permitted to gamble by introducing evidence outside the pleadings, and, when the result is disastrous take shelter behind the pleadings.

7. Under Act Cong., Feb. 14, 1913, 37 Stat. 678 (25 U.S. C. A sec. 373), requiring that a devise of trust property of Indians be approved by Secretary of Interior, there is no requirement that an Indian make two wills, one for allotted land held in trust by the government and another for other property of which he may die possessed.

8. There cannot be two conflicting wills for the same estate, unless the latter is a revocation of the former.

9. Evidence that Indian testatrix executed second will under mistaken apprehension that former Indian will disposed only of allotted land held in trust by government held to require judgment setting aside the second will for mistake of law and fact.

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Miles S. Johnson, Judge.

Will contest. Judgment admitting will to probate. Reversed.

Judgment reversed. Costs to appellant. Petition for rehearing denied.

Earle W. Morgan and Cox & Martin, for Appellant.

A revocation executed under a mistake of law or fact is not valid. (1 Page on Wills, p. 672, par. 424; In re Patterson's Estate, 155 Cal. 626, 132 Am. St. 116, 18 Ann. Cas. 625, 102 P. 941, 26 L. R. A., N. S., 654; Russell v. Hartley, 83 Conn. 654, 78 A. 320; Giddings v. Giddings, 65 Conn. 149, 48 Am. St. 192, 32 A. 334; Perrott v. Perrott, 14 East, 423, 104 Eng. Reprint, 665.)

The facts shown in evidence are sufficient as a matter of law to constitute undue influence. (In re Gallo's Estate, 61 Cal.App. 163, 214 P. 496; In re Ramsey's Estate, 62 Cal.App. 413, 217 P. 135; In re Graves' Estate, 202 Cal. 258, 259 P. 935; McCarty v. Weatherly, 85 Okla. 123, 204 P. 632; In re King's Estate, 87 Ore. 236, 170 P. 319; In re Conroy's Estate, 29 Wyo. 62, 211 P. 96; In re Lee's Estate, 145 Wash. 408, 260 P. 662; In re Presho's Estate, 196 Cal. 639, 238 P. 944.)

Where a testator's general plan for disposal of his estate fails the whole will will fall. (Anderson v. Menefee, (Tex. Civ. App.) 174 S.W. 904; Hacker v. Hacker, 75 Misc. 380, 133 N.Y.S. 266; In re Hansen, 72 Misc. 610, 132 N.Y.S. 257; Davidge v. Wiggins, 137 N.Y.S. 127; In re De Witt's Will, 113 A.D. 790, 99 N.Y.S. 415; Barrett v. Barrett, 255 Ill. 332, 99 N.E. 625.)

Where a party goes outside of the issue in introducing evidence the pleadings will, as to such party, be deemed amended to conform to the proof, and the case must be adjudicated in accordance with the facts proven. (Douville v. Pacific Coast Casualty Co., 25 Idaho 396, Ann. Cas. 1917A, 112, 138 P. 506; Newman v. Oregon Short Line R. R. Co., 34 Idaho 417, 201 P. 710; Yule v. Miller, 80 Cal.App. 609, 252 P. 733; Washington Bridge Co. v. Land & River Imp. Co., 12 Wash. 272, 40 P. 982; St. George v. Boucher, 84 Mont. 158, 274 P. 489; Poluski v. Glen Alden Coal Co., 286 Pa. 473, 133 A. 819.)

Under the Idaho statute, which is identical with the California statute, a later will containing a general unrestricted residuary clause revokes an earlier will. (In re Iburg's Estate, 196 Cal. 333, 238 P. 74; In re Bassett's Estate, 196 Cal. 576, 238 P. 666.)

Verner R. Clements and M. H. Greene, for Respondent.

If a will is executed in conformity with the law and the intent of the testator was that such will should constitute a testamentary disposition of his property, a mistake of law as to the legal effect of the language used or a mistake of facts in the contents are not grounds for setting aside or annulling the will. (28 R. C. L. 142; In re Gluckman's Will, 87 N.J. Eq. 638, 101 A. 295, L. R. A. 1918D, 742; Martindale v. Bridgforth, 210 Ala. 565, 98 So. 800; Elam v. Phariss, 289 Mo. 209, 232 S.W. 693; Holmes v. Campbell College, 87 Kan. 597, Ann. Cas. 1914A, 475, 125 P. 25, 41 L. R. A., N. S., 1126; 40 Cyc. 1143; 1 Paige on Wills, secs. 168--172; Barker v. Comins, 110 Mass. 477; Couch v. Eastham, 27 W.Va. 796, 55 Am. Rep. 346; Riley v. Casey, 185 Iowa 461, 170 N.W. 742; Munnikhuysen v. Magraw, 35 Md. 280; 1 Schouler on Wills, Executors and Administrators, sec. 256 et seq.)

A later will without a specific revocation clause should be upheld, implied revocation not being favored by the courts. (1 Paige on Wills, sec. 436, p. 691; 28 R. C. L., sec. 66, p. 114; 40 Cyc. 1173; Whitney v. Hanington, 36 Colo. 407, 85 P. 84; Adams v. Maris, (Tex. Com. App.) 213 S.W. 622; Succession of Lefort, 139 La. 51, Ann. Cas. 1917E, 769, 71 So. 215; Succession of Pizzati, 141 La. 645, 75 So. 498; In re Westfeldt's Will, 188 N.C. 702, 125 S.E. 531; Loveren v. Eaton, 80 N.H. 62, 113 A. 206; In re Bingaman's Estate, 281 Pa. 497, 127 A. 73.)

Two complete wills may be probated separately in two jurisdictions to cover the property in each jurisdiction. (Parnell v. Thompson, 81 Kan. 119, 105 P. 502, 33 L. R. A., N. S., 658.)

Setting aside, voiding and revoking by implication of will is matter of necessity to carry out testator's intent, and if the intent may be carried out by the will in question it will not be set aside by the courts. (1 Paige on Wills, 723--725.)

Evidence admitted in trial court will not be used or considered by appellate court for another purpose. (Hodge v. St. Louis Union Trust Co., (Mo.) 261 S.W. 67; In re Ricks' Estate, 160 Cal. 467, 117 P. 539; Wallace v. Portland Ry. etc. Co., 88 Ore. 219, 159 P. 974, 170 P. 283; Achenbach v. Stoddard, 253 Pa. 338, 98 A. 604.)

LEE, J. Givens, C. J., and Budge and Varian, JJ., concur.

OPINION

LEE, J.

On February 20, 1927, Ida Raymond, a Nez Perce Indian, died, leaving as surviving spouse plaintiff and appellant, John Snyder. A will alleged to have been executed by her on the day preceding was presented to the probate court by defendant and respondent, Cecelia Raymond, half-sister of the deceased and sole beneficiary under said will. An order was thereafter duly made, admitting said will to probate. Whereupon plaintiff filed his petition alleging mental incompetency and undue influence, and prayed that such order be revoked and the will rejected.

From a denial of his petition he appealed to the district court. There judgment was rendered against him and his motion for new trial was denied. He has appealed from both.

The will in question was as follows:

"Webb Idaho

"Feb 19th 1927

"Last Will and Testament of Ida Raymond who leave to her Sister Cecelia Raymond the South half of the South East quarter of Sec 18 and the South East quarter of the South West quarter of Sec 16 and Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of Sec 21 Township North of Range 4 West Boise Meridian in Idaho 317 Acres. More or Less. It is understood and agreed that Ceciela Shall draw all the Rental on Lot's 7, 8, 9, 10 of Sec 21 T P. 34 N R. 4. W which contains 60 Acres Plow land. the Rental being $ 240.00 per Year. It is to be understood this Testament Covers all and is to Fall to My Sister Ceceil all that I Possess.

"Sighned IDA RAYMOND (Thumb mark)

"Witnesses

"CURRY TABABOO

"MARY TABABOO (Thumb mark)

"JETHRO J. T. SAN GARDE,

"Justice of the Peace."

Upon the trial there was introduced, over defendant's objection, the following instrument admittedly executed by the deceased four days prior to the execution of the will involved here:

"5--109

"INDIAN WILL UNDER THE ACT OF JUNE 25, 1910 (36 STAT. L., 855--856) AS AMENDED BY THE ACT OF FEBRUARY 14, 1913 (37 STAT. L., 678).

"LAST WILL AND TESTAMENT

OF

IDA RAYMOND (SNYDER)

"I Ida Raymond of the Nez Perce Tribe, of the State of Idaho, being of sound and disposing mind, realizing the uncertainty of human life, do make this my Last Will and Testament, hereby revoking all former wills by me made, in manner and...