Swaringen v. Swanstrom

Decision Date26 December 1946
Docket Number7316
Citation175 P.2d 692,67 Idaho 245
PartiesSWARINGEN v. SWANSTROM
CourtIdaho Supreme Court

Appeal from District Court, Seventh District, Adams County; Thomas E. Buckner, Judge.

Affirmed.

Hoyt Ray, of Idaho Falls, and J. L. Eberle, of Boise, for appellant.

It is reversible error to exclude documentary evidence prepared by witness and under his control when the evidence is material. I.C.A. § 12-320; 20 Am.Juris. 772.

It is reversible error to exclude testimony of subscribing witnesses to a will, when it is lost as to contents particularly as to a revocation clause therein, when evidence is material. In re Johnston's Estate, 188 Cal 336, 206 P. 628; In re Lobb's Will, 173 Or. 414 145 P.2d 808; Brittian v. Puckett, 173 Okl. 422, 48 P.2d 1058; Reed v. Hayward, 23 Cal.2d 478, 144 P.2d 561; Turley v. Evins, 109 Ark. 115, 158 S.W. 1080.

An attorney in trial can not testify for his client if he knew before the trial he would be an essential witness. Rules of Supreme Court, 62 Idaho Reports; Opinions of the Professional Ethics Committee, American Bar Association; Sebree v Smith, 2 Idaho, 359 at page 363, 16 P. 915.

W. H. Langroise and W. E. Sullivan, both of Boise, for respondent.

A contestant claiming undue influence has the burden of establishing his case by a preponderance of the evidence, and that burden never shifts to proponent. In re Choiniere's Estate, 1945, (Mont.), 156 P.2d 635; In re Hesse's Est., 1945, 62 Ariz. 273, 157 P.2d 347; In re Lillie's Est., 1945, 195 Okl. 597, 159 P.2d 542; In re Lewis Est., 1944, 64 Cal.App.2d 480, 149 P.2d 51.

Irrelevant documentary evidence is inadmissible. Estate of Randall, 1937, 58 Idaho 143, 70 P.2d 389.

An appellate court will not consider grounds urged for the first time therein. Johnson v. Diefendorf, 1936, 56 Idaho 620, 633, 57 P.2d 1068; Garrett Transfer & Storage Co. v. Pfost, 1933, 54 Idaho 576, 33 P.2d 743.

The trial court may not consider a ground of contest not raised by the pleadings. I.C.A. § 15-223, as amended 1943 S.L. p. 46, Chap. 18; People v. Whitworth, 1925, 41 Idaho 225, 238 P. 306.

An appellate court will not consider any question not put in issue by the pleadings. State v. Enking, 1938, 59 Idaho 321, 344, 82 P.2d 649; Curtis v. Pfost, 1933, 53 Idaho 1, 21 P.2d 73; Coulson v. Aberdeen-Springfield Canal Co., 1924, 39 Idaho 320, 227 P. 29.

A contest may not be amended so as to assert a new ground more than four months after will is admitted to probate. I.C.A. § 15-223, as amended 1943 S.L. p. 46, Chap. 18; Denton v. Detweiler, 1929, 48 Idaho 369, 282 P. 82; In re Black's Est., 1943, 56 Cal.App.2d 796, 133 P.2d 673.

Ailshie, Chief Justice. Givens and Miller, JJ., concur. Holden, Justice, specially concurring.

OPINION

Ailshie, Chief Justice.

This is an appeal from a judgment of the district court affirming an order of the probate court dismissing appellant's contest of the will of Z. V. Swearingen, deceased. The will was admitted to probate February 27, 1945. Petition for contest was based solely "upon the ground of undue influence by the defendant [respondent herein]". The trial court found that respondent did not unduly influence testator in making a will in his favor.

It follows as a matter of fact and law, that the only issue to be determined on this appeal is whether the evidence is sufficient to support the findings by the trial court. The evidence as disclosed by the record is overwhelmingly in support of the findings of the trial court and clearly demonstrates that no undue influence was exerted by respondent over testator.

The contestant of a will that has been admitted to probate has the burden of showing undue influence. By the weight of authority, that burden never shifts to the proponent of a will. In re Lewis' Estate, 64 Cal.App.2d 480, 149 P.2d 51, 52; In re Southman's Estate, Or., 168 P.2d 572, 581; In re Choiniere's Estate, Mont., 156 P.2d 635, 638; In re Hesse's Estate, Ariz., 157 P.2d 347, 351; 1 Bancroft, Probate Practice, sec. 204, p. 368. In a contest on the ground of undue influence, it must be shown that such undue influence existed and was operating at the time of the execution of the will. In re Nielsen's Estate, 198 Wash. 124, 87 P.2d 298, 300; In re Hoscheid's Estate, 78 Wash. 309, 139 P. 61, at page 65; see, also, In re Southman's Estate, supra.

The contention, that undue influence was shown by proof that respondent had been the attorney for testator for some ten years or more, does not constitute undue influence in itself. No evidence is shown, and there is no evidence, disclosing any pressure or urging by respondent on testator to effect a will in respondent's favor. Indeed, no presumption of undue influence arises on the mere existence of a confidential relation between beneficiary and testator in relationship, or business or professional work, during the lifetime of the testator. Willett v. Hall, 220 Ind. 310, 41 N.E.2d 619, 621; Goodbar v. Lidikey, 136 Ind. 1, 35 N.E. 691, 692, 43 Am.St.Rep. 296; In re Lillie's Estate, 195 Okl. 597, 159 P.2d 542, 545. If the relation of attorney and client or principal and agent existing between the parties is sufficient to constitute undue influence by the attorney or agent over the principal, it would throw open many wills to contest; and, on the contrary, an existence of such a relationship often furnishes potent reasons for the execution of a will in favor of such an attorney or agent. Gwin v. Gwin, 5 Idaho 271, 286, 48 P. 295; Dickey v. Clark, 65 Idaho 247, 257, 142 P.2d 597; In re Turnage's Will, 208 N.C. 130, 179 S.E. 332. Here the evidence is all to the effect that the testator was a very strong-minded (bull-headed) man who insisted on his own way of doing things and was not easily influenced.

Error is assigned against the action of the court in permitting Donart to act as attorney and testify in this case, on the ground that it is contrary to the code of legal ethics. Rule 151, Rules of Supreme Court and Board of Commrs. of Idaho State Bar, 62 Idaho p. lxxxi; [1] Opinion No. 50, Canons of Am. Bar Association (1936 ed.), p. 121; [2] Vol. 62, Reports Am. Bar Assn. (1937), sec. 19, p. 1112. [3] The objection is not well founded. It is not sufficient to justify exclusion of material testimony given by the attorney in behalf of his client. Sebree v. Smith, 2 Idaho 359, 363, 16 P. 915; Hotaling v. Hotaling, 187 Cal. 695, 203 P. 745, 751; Holbrook v. Seagrave, 228 Mass. 26, 116 N.E. 889, 890; Cox v. Kee, 107 Neb. 587, 186 N.W. 974, 975; Paine v. People, 106 Colo. 258, 103 P.2d 686, 689; In re Norton's Estate, 202 Iowa 374, 210 N.W. 438, 439; Bogart v. Brazee, 331 Ill. 160, 162 N.E. 877, 884; Miller v. Urban, 123 Conn. 331, 195 A. 193, 118 A.L.R. 951 and note, p. 954; Kellar v. Lindley, 203 Iowa 57, 212 N.W. 360, 361.

It is further urged by appellant that testator made a new will in 1937, whereby he revoked the will in probate and left his property to other beneficiaries. We do not consider that contention as being properly before this court on appeal, for the reason that no allegation was contained in the contest complaint, to the effect that the will had ever been revoked or that a new will had subsequently been executed. In order to interpose such a defense to the regularly executed will, the facts must be alleged in the contest complaint. In re Wilson's Estate, 117 Cal. 262, 49 P. 172, 173; see, also, In re Black's Estate, 56 Cal.App.2d 796, 133 P.2d 673, 674; In re Eskridge's Estate, 51 Cal.App.2d 634, 125 P.2d 527, 528; Peoples v. Whitworth, 41 Idaho 225, 231, 238 P. 306; Denton v. Detweiler, 48 Idaho 369, 373, 282 P. 82. The contest was filed on the ground of undue influence within the statutory time (four months -- sec. 15-223, I.C.A., as amended by 1943 S.L., chap. 18, p. 46). No suggestion of lost will was made until the matter came up in the court some nine months after the probate of the will, which was too late to raise a new issue in the case. In re Wilson's Estate, supra; Gwinn v. Melvin, 9 Idaho 202, 210, 72 P. 961, 108 Am.St.Rep. 119, 2 Ann.Cas. 770. Waiving for the time sufficiency of pleading, the record discloses a total absence of competent evidence to prove either the due execution or contents of the subsequent will, which it is claimed was lost. In the first place, our statute (sec. 15-231, I.C.A.) provides specifically that

"No will shall be proved as a lost or destroyed will unless the same is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently destroyed in the lifetime of the testator, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses." See Hull v. Cartin, 61 Idaho 578, 587, 105 P.2d 196, and cases cited therein.

There is not a word of testimony in the record that the purported lost will was in existence "at the time of the death of the testator". On the contrary, the evidence shows that, after the execution of the purported later will, testator took possession of the instrument and no one claims to have seen it since. In the meanwhile, for a period of more than eight years testator continued to do business with respondent, employed him both as his investment agent and attorney; and he frequently remarked to his friends and neighbors that respondent made better investments than he (testator) was able to do himself. The only testimony in the record, concerning the execution and delivery of the purported lost will was given by Clay Spicer and Charles H. Spicer, and their testimony in full is as follows:

"Q. Your name, please. A. Clay Spicer.

"Q. Where do you live. A. Marcola, Oregon.

"Q. How old are you. A. Well, I was born in 1876.

"Q. Where were you born. A. Trap Hill, North Carolina.

"Q. Did you know Z. V....

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  • Shrives v. Talbot
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    ...Spicer, 86 Idaho 138, 383 P.2d 844; Frost v. Mead, 86 Idaho 155, 383 P.2d 834; Cox v. Cox, 84 Idaho 513, 373 P.2d 929; Swaringen v. Swanstrom, 67 Idaho 245, 175 P.2d 692. Finally the judgment on retrial is alleged erroneous in (a) It collaterally reversed the amended decree of foreclosure e......
  • Nelson's Estate, In re
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    ...the same effect are Powell v. Weld, 410 Ill. 198, 101 N.E.2d 581; Cunningham v. Dorwart, 317 Ill. 451, 148 N.E. 314. In Swaringen v. Swanstrom, 67 Idaho 245, 175 P.2d 692, it was held the evidence that beneficiary of a will had been attorney for testator for ten years did not establish undu......
  • Smith v. Smith (In re Estate)
    • United States
    • Idaho Supreme Court
    • 18 Diciembre 2018
    ...of undue influence, Joseph would have had to prove all of the elements by a preponderance of the evidence. Swaringen v. Swanstrom , 67 Idaho 245, 253, 175 P.2d 692, 697 (1946). On the other hand, if Vernon failed to do so, the presumption of undue influence would become proven fact. I.R.E. ......
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