Wilson's Estate, In re, 2165 and C
| Decision Date | 15 March 1965 |
| Docket Number | No. 2165 and N,No. 3239,No. 2168,No. 2165 and P,No. 2165 and C,2165 and C,2168,2165 and P,2165 and N,3239 |
| Citation | 399 P.2d 1008 |
| Parties | In the Matter of the ESTATE of Aida Pollard WILSON, also known as Aida P. Wilson, Deceased. Sarah Katherine CONRAD, nee Hickey, Appellant (Proponent in Caseontestant in Casebelow), v. D. C. MEYER, Eexecutor of the Estate of Aida Pollard Wilson, deceased, Memorial Hospital of Sheridan County, Wyoming, First National Bank of Sheridan, Wyoming, Marjorie Saxton King, David B. Marshall, Appellees (Contestants in Caseroponents in Casebelow), and Ruth Anne Woolbert et al., Appellees (Contestants in Cases No. 2165 andbelow). |
| Court | Wyoming Supreme Court |
Carleton A. Lathrop, of Lathrop, Lathrop & Tilker, Cheyenne, S. Paul Hazen, Tulsa, Okl., Bruce P. Badley, Sheridan, for appellant.
No brief filed for appellees.
Before PARKER, C. J., and HARNSBERGER, GRAY, and McINTYRE, JJ.
Our original opinion in this case affirmed a summary judgment which denied probate of an instrument offered as a holographic will and allowed the probate of an attested will and codicil. On petition for rehearing the proponent of the holographic will makes argument on six assignments of error.
Assignments numbered 1, 2 and 4 relate to matters fully argued in the original appeal. We consider these matters adequately discussed and disposed of in the original opinion and will not attempt to repeat or enlarge upon what has already been said.
Assignment of error numbered 3 challenges our statement in the original opinion to the effect that we found no dispute of any facts upon which our decision was based, 'except as to the matter of undue influence.' Petitioner argues that since there was a dispute as to undue influence the entry of summary judgment was not proper.
Considerations of the trial court, on a motion for summary judgment, go beyond the pleadings, and the mere assertion of a claim such as undue influence is not sufficient to prevent entry of summary judgment. We have consistently held that allegations of a complaint are not sufficient to show the existence of a genuine issue of fact, where the alleged basis for relief is challenged by statements of fact in affidavits and other forms of evidence in support of a motion for summary judgment. Lieuallen v. Northern Utilities Company, Wyo., 368 P.2d 949, 951; Hinkle v. Siltamaki, Wyo., 361 P.2d 37, 37-38, 41.
As pointed out in Lieuallen, if allegations of the complaint are controverted by affidavits and other evidence tending to show the allegations are not true, it thereupon becomes incumbent upon plaintiff to set forth 'specific facts' in opposition, if plaintiff's contention (or allegations of the complaint) are to remain a genuine issue of fact for trial. Rule 56(e), W.R.C.P.
In the case at bar petitioner continues to insist that attorney William D. Redle had opportunity to influence the testatrix; that testatrix was susceptible to being influenced; and that undue influence could be 'inferred' from the provisions of the will itself.
We fail to find anything in the will admitted to probate from which undue influence could be inferred. As we said in In re Draper's Estate, Wyo., 374 P.2d 425, 431-432, it is not sufficient to show that a party benefited by a will had the motive and the opportunity to exert undue influence; but there must be evidence that he did exert it and did so control the actions of the testator that the instrument is not really the will of the testator.
Not only did contestant fail to come forward, in connection with the motion for summary judgment, with affidavits, testimony or other evidence tending to show specific facts relative to actions on the part of Redle which would constitute undue influence--or from which undue influence could be...
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