Witthoft v. Gathe

• Decision Date: 03 November 1923
• Citation: 38 Idaho 175,221 P. 124
• Parties: SOPHIA BARBARA MARGARETA WITTHOFT, Respondent, v. THEODORE H. GATHE, Appellant
• Court: Idaho Supreme Court

221 P. 124

38 Idaho 175

SOPHIA BARBARA MARGARETA WITTHOFT, Respondent, v. THEODORE H. GATHE, Appellant

Supreme Court of Idaho

November 3, 1923

WILLS - SPECIAL FINDINGS - TESTAMENTARY CAPACITY - UNDUE INFLUENCE-CONFLICTING EVIDENCE-RULE APPLICABLE TO WILL CONTESTS-NEW TRIAL-APPEAL AND ERROR-MOTION FOR JUDGMENT NON OBSTANTE VEREDICTO.

1. In a will contest, inconsistency between findings of want of testamentary capacity and of undue influence does not invalidate the judgment for contestant if either finding be supported by the evidence.

2. In a will contest, findings that the deceased was of unsound mind and also unduly influenced at the time of making the will are not inconsistent, the rule being that findings authorizing different judgments are inconsistent while findings authorizing the same judgment are not inconsistent.

3. The rules that all questions of the weight of evidence and the credibility of the witnesses are for the jury and the trial court, and that where the evidence is conflicting, but there is sufficient competent evidence, if uncontradicted, to support the verdict of the jury, the same will not be disturbed on appeal, are applicable to will contests.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. O. R. Baum, Judge.

Action to probate a will and a contest of such will. Judgment for contestant. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Peterson & Coffin and D. W. Standrod, for Appellant.

The testimony wholly fails to establish testamentary incapacity. (Alexander's Commentaries on Wills, pp. 439-442; Runkle v. Gates, 11 Ind. 95; In re Richardson's Will, 64 N.Y.S. 944; Langford's Admr. v. Mills, 189 Ky. 515, 225 S.W. 246; In re Guilbert's Estate, 46 Cal.App. 55, 188 P. 807; In re Little's Estate, etc., 46 Cal.App. 776 189 P. 818; Hoban v. Piquette, 52 Mich. 346, 17 N.W 797; Roche v. Mason, 185 N.Y. 128, 77 N.E. 1007; Wood v. Carpenter, 166 Mo. 465, 66 S.W. 172; Hill v. Fly (Tenn.), 52 S.W. 731; Todd v Todd, 221 Ill. 410, 77 N.E. 680; In re Casarotti's Estate, 184 Cal. 73, 192 P. 1085.)

The testimony wholly fails to show undue influence in the making of the will in question. (Pritzchard v. Henderson, 3 Del. 128, 50 A. 217; Thompson on Wills, sec. 530; Kustus v. Hazer, 269 Pa. 103, 112 A. 45.)

The special interrogatories submitted are inconsistent and antagonistic. (Gwin v. Gwin, 5 Idaho 271, 48 P. 295; Stirling v. Stirling, 64 Md. 139, 21 A. 273; 29 Am. & Eng. Ency. of Law, 104; Barr v. Sumner, 183 Ind. 99, 107 N.E. 674, 109 N.E. 193; In re Busham's Estate, 115 Misc. 588, 189 N.Y.S. 182; In re Dunn, 184 A.D. 386, 171 N.Y.S. 1056.)

Where special findings are contradictory new trial must be granted. (Kerns v. McKean, 65 Cal. 411, 4 P. 404; Sloss v. Allman, 64 Cal. 47, 30 P. 574; McBride v. Union P. Ry. Co., 3 Wyo. 247, 21 P. 687.)

C. O. Benting, D. C. McDougall, T. D. Jones and I. E. McDougall, for Respondent.

Where the evidence discloses that the testator did not have a sound and disposing mind at the time of signing the alleged will, the instrument is of no force as a will and must be denied probate. (C. S., secs. 7808, 7452; Alexander's Commentaries on Wills, par. 326.)

Or where the evidence discloses that the purported will was signed by the testator by reason of undue influence exercised upon him. (C. S., sec. 7452; Alexander's Commentaries on Wills, sec. 573.)

In the contest of a will, the weight of the evidence is for the jury, and where the evidence is conflicting the verdict of the jury and judgment of the trial court will not be disturbed by the appellate court, especially after the trial judge has held the evidence sufficient in passing upon a motion for a new trial. (In re Russell's Estate, 189 Cal. 759, 210 P. 249; Main v. Yandell, 110 Kan. 630, 204 P. 540; In re Jones' Estate, 59 Utah 99, 202 P. 206; Pedersen v. Moore, 32 Idaho 420, 184 P. 475; Duncanson v. Williams (Mo.), 242 S.W. 653; Deganhardt v. Joplin (Tex. Civ.), 239 S.W. 692; Lefever v. Stevenson (Mo.), 193 S.W. 840; In re Zobrist's Will, 179 N.Y.S. 425; In re Donahue's Estate, 115 Misc. 586, 188 N.Y.S. 760; In re Hinton's Will, 180 N.C. 206, 104 S.E. 341; Bokelman's Will v. Smith (Iowa), 159 N.W. 975; Turckheim v. Birkley, 287 Ill. 434, 122 N.E. 814.)

The special verdicts returned in this case support the judgment and are not inconsistent. (In re Williams' Estate, 52 Mont. 192, Ann. Cas. 1917E, 126, 156 P. 1087; Sharp v. Losee, 109 Kan. 211, 199 P. 94; In re Wiltsey's Estate, 135 Iowa 430, 109 N.W. 776; Hays v. Bowdoin, 159 Ala. 600, 49 So. 122; C. S., sec. 7452.)

The instructions given and refused cannot be reviewed in this case for the reason that they are not properly before the court. They are not incorporated in the reporter's transcript nor are they settled by a bill of exceptions. (Sweaney & Smith Co. v. St. Paul Ins. Co., 35 Idaho 303, 206 P. 178; C. S., secs. 7163, 7166, 7167.)

BUDGE, C. J. Dunn and William A. Lee, JJ., concur.

OPINION

BUDGE, C. J.

From the record in this case it appears that Theodore A. Gathe and Henry A. M. Witthoft became partners in the year 1901, which partnership continued until 1912, when a corporation was organized which took over the partnership property. The interests of the partners were thereafter represented by stock in the corporation. Prior to the formation of the corporation, about 1910, Witthoft became more or less indisposed and his health began to break. In the same year Witthoft and Gathe made wills, each becoming a beneficiary under the other's will. On May 22, 1913, Witthoft gave to his former partner, Gathe, a full and absolute power of attorney, which was never revoked. In the early part of 1914 Witthoft went to Kiel, Germany, and later entered a nerve clinic in that city where he received medical treatment. Thereafter, about the month of April, 1914, he returned to the United States and on March 17, 1915, he married respondent, Sophia Barbara Margareta Witthoft, with whom he lived until the date of his death on March 27, 1917. He left surviving him the respondent and a daughter aged fifteen months.

In the month of August, 1917, respondent filed her petition for letters of administration and in September, 1917, she was appointed administratrix of the estate of her deceased husband and in October, 1917, brought an action, as administratrix, in the district court, against appellant and others, for the purpose of obtaining possession of property held by them and to which they claimed ownership by reason of a certain letter referred to in the record as "the letter of explanation," which purports to make an assignment of stock in the corporation known as the Commercial Development and Investment Company, under the terms of which letter of explanation appellant was to receive twenty-five shares of the stock in said corporation standing in the name of the deceased, Witthoft. The final determination of this particular action, under stipulation of counsel, is to be governed by the disposition made of the instant case.

On the 5th day of December, 1917, approximately nine months after the death of Witthoft, appellant filed for probate a document purporting to be the last will and testament of Henry A. M. Witthoft. In the probate court respondent contested the application of appellant for probate of the alleged will. Upon a hearing had before that court the will was rejected. Thereafter an appeal was taken to the district court, which resulted in the will being again rejected. Prior to the entry of the judgment appellant moved the court for judgment non obstante veredicto, which motion was, by the court, overruled and judgment on the verdict was thereafter entered rejecting the will, from which judgment and from an order denying a motion for a new trial this appeal is prosecuted.

Appellant specifies and relies upon twenty-three assignments of error. The first fourteen errors assigned involve the action of the court in the giving and refusing to give certain instructions to the jury. These errors cannot be reviewed by this court for the reason that the instructions are not called for by the praecipe, they are not included in the reporter's transcript settled and allowed by the trial court, and are not included in the clerk's certificate to the clerk's transcript. (C. S., secs. 7163, 7166 and 7167; Sweaney & Smith Co. v. St. Paul Ins. Co., 35 Idaho 303, 206 P. 178; Stringer v. Redfield, 34 Idaho 378, 201 P. 714.)

The fifteenth assignment of error involves the action of the court in submitting to the jury certain interrogatories, which, with the answers of the jury, are as follows:

Interrogatory No. 1: "At the time of the execution of the will herein in question, was said Henry A. M. Witthoft acting under undue influence, as in these instructions defined?"

Answer: "Yes."

Interrogatory No. 2: "At the time of the execution of the will here in question, was said Henry A. M. Witthoft of sound mind?"

Answer: "No."

It is the contention of appellant that the above interrogatories submitted to the jury and their answers thereto are inconsistent, antagonistic and contradictory and therefore a new trial should be granted. In support of this contention appellant relies upon the case of Gwin v. Gwin, 5 Idaho 271, 48 P. 295. That case is not in point for the reason that the jury in that case found that the deceased, at the time of the making of the will, was competent to make it and also found that the deceased at the time of making said will was not of sound and disposing mind. These two findings are inconsistent and contradictory and the court properly held that a new trial should be granted for that reason. The distinction between the case at bar and the Gwin case is that in the latter the special findings would...