Wood v. Wood

Decision Date07 May 1917
Docket Number889
Citation25 Wyo. 26,164 P. 844
PartiesWOOD, ET AL. v. WOOD, ET AL
CourtWyoming Supreme Court

ERROR to District Court, Sheridan County; CARROLL H. PARMELEE Judge.

Petition by Daniel J. Wood, et al. for the probate of the will of Levi Wood, deceased. N. D. Wood, et al., contested the admission of the will to probate; from a decree for the proponents admitting the will to probate, contestants bring error.

Affirmed.

Burgess & Kutcher, for plaintiffs in error.

It was error to charge that the burden of proof rested upon contestants to establish the insanity of the testator and that unsoundness of mind must be established wth reasonable certainty by contestants. The burden of proof throughout the case was upon the proponents of the will, and it never shifted. (Sections 5394, 5418, 5442 and 5444.) The right to make a will is a creature of statute, and not a common law right and is restricted to persons accorded the right by statute. One presenting a will must show that the testator was sane before the will can be probated. (Sections 5418, 5444 and 5442, Comp. Stats. 1910.) The presumption of sanity does not obtain in the probate of a will; proof of execution does not dispense with necessity of proof of sanity, nor create a presumption of sanity. (Beazley v. Denison, 40 Tex. 416.) The weight of authority is that the burden of proof is upon the proponents of the will. (Wigmore Ev., Sec 2500; 40 Cyc. 1020; Crowninshield v. Crowninshield, 2 Gray, 524 (Mass.); Seebrock, et al., v. Fedowa, 46 N.W. 650 (Neb.); In re. Layman's Will, 42 N.W. 286 (Minn.); Steinkuehler v. Wempner, 81 N.E. 482 (Ind.); Maier v. Mansbach, 114 N.W. 65 (Mich.); McMechen v. McMechen, 17 W.Va. 685; Barber's Appeal, 27 A. 973 (Conn.); Rich v. Lemmon, 15 App Cas. 507 (D. of C.); Evans v. Arnold, 52 Ga. 169; Barnes v. Barnes, 66 Me. 286; Sheehan v. Kearney, 21 So. 41 (Miss.); Norton v. Paxton, 19 S.W. 807 (Mo.); Perkins v. Perkins, 39 N.H. 163; Chrisman v. Chrisman, 18 P. 6 (Ore.); Cases cited in Note 12, p. 1021, 40 Cyc.) Instruction No. 6 as to a presumption of sanity is in conflict with Section 5418 and Section 5442, Comp. Stats. 1910. (Robinson v. Adams, 62 Me. 369; Cilley v. Cilley, 34 Me. 162; Beaubien v. Cicatte, 8 Mich. 9; Martin v. Perkins, 56 Miss. 204; Beazley v. Denison, 40 Tex. 416.) Instructions Nos. 1 and 5 were erroneous as to the degree of proof required to establish insanity. (Anniston Mfg. Co. v. So. Ry. Co., 40 So. 965; Leggett v. Illinois Cent. R. Co., 72 Ill.App. 577; McBee v. Bowman, 89 Tenn. 132, 14 S.W. 481; Endowment Rank O. K. P. v. Steele, 63 S.W. 1126.) A preponderence of evidence is all that is required. (Search v. Miller, 1 N.W. 975 (Neb.); Burmingham Ry. Co. v. Moore, 42 So. 1024 (Ala.); Hall v. Wolf, 16 N.W. 710 (Ia.); 38 Cyc. 1755.) Instruction No. 19 was argumentative and erroneous. Instruction No. 27 is erroneous and argumentative. (Schofield v. Walker, 58 Mich. 96; Disbrow's Estate, 24 N.W. 624 (Mich.); Ormsley v. Webb, 33 L. Ed., p. 813.) Influence obtained by flattery is undue influence. (Words & Phrases, Vol. 8, p. 7169.)

La Fleiche & Diefenderfer and Metz & Sackett, for defendants in error.

Sections 5440, 5466, 5467 and 5468, Comp. Stats. 1910, govern contest of wills. (Cook v. Baldus, 157 P. 580.) Section 5440, Comp. Stats., was adopted from California with modifications. Judicial constructions of borrowed statutes are adopted as a part of the statute. (Crumrine v. Reynolds, 13 Wyo. 111, 78 P. 402.) Constructions subsequent to such adoption are not binding, but persuasive. (Coal Mining Co. v. State, 15 Wyo. 97, 87 P. 337, 984.) The rule of procedure in will contests under the California law is clearly set forth in the case of Latour's Estate, 74 P. 441. The procedure followed below is in conformity with the California rule. The contention of appellants that the burden of proof is at all times upon the proponents of a will is apparently an afterthought and not in accordance with the theory upon which the case was tried; there are some decisions, however, that support the principle. The California rule is that contestants must assume the burden of proof. (Estate of Dalrymple, 7 P. 906; In re. Burrell's Estate, 19 P. 880; In re. Doyle Estate, 73 Cal. 564, 15 P. 125; In re. Black's Estate, 64 P. 695, 132 Cal. 392; In re. Nelson's Estate, 132 Cal. 182, 64 P. 294; In re. Metz' Estate, 136 Cal. 558, 69 P. 294, 295; In re. McKenna's Estate, 77 P. 461; In re. McDevitt's Estate, 30 P. 101; Cullberg's Estate, 146 P. 888; MacCrellish's Estate, 167 Cal. 711, 141 P. 257; Panand v. Jones, 1 Cal. 488, 498.) It is also the rule in the District of Columbia and in Maryland. (Leach v. Burr, 23 S.Ct. 393; Higgins v. Carlton, 28 Md. 115, 92 Am. Dec. 666.) And in a number of other states. (In re. Hayes Estate, 135 P. 449; Hunt v. Phillips, 34 Wash. 362; Higgins v. Netherly, 30 Wash. 337, 70 P. 489; Hutson, et al. v. Huntley, et al., 72 Ohio State, 262, 74 N.E. 197; Runyan v. Price, et al., 15 Ohio State 1, 86 Am. Dec. 459; Franklin v. Price, et al., 15 Ohio State 1, 86 Am. Dec. 459; Franklin v. Boon, 37 Tex. (Civ. App.) 597; Estate of McKenna, 143 Cal. 580, 77 P. 461.) In Georgia the propounder is required to show testamentary capacty of the testator and that the will was made free and voluntary. (Credille v. Credille, 123 Ga. 673, 107 Am. St. Rep. 157; Evans v. Arnold, 52 Ga. 167; Welter v. Haversham, 60 Ga. 193; Eastis v. Montgomery, 95 Ala. 486, 36 Am. St. Rep. 227; Kaufiman v. Caughman, 49 So. Car. 169.) The same rule obtains in Illinois, Kentucky and Alabama. (Craig v. Southard, 162 Ill. 209, 44 N.E. 393; Carpenter v. Calvert, 83 Ill. 62; Wilbur v. Wilbur, 129 Ill. 392, 21 N.E. 1076; Milton v. Hunter, 13 Bush (Ky.) 163; Flood v. Pragoff, 79 Ky. 611; Fee v. Taylor, 83 Ky. 259; Bramwell v. Bramwell, 101 Ky. 72; Leeper v. Taylor, 47 Ala. 221; Cotton v. Ulmer, 45 Ala. 378; Daniel v. Hill, 52 Ala. 430; Kramer v. Weinert, 81 Ala. 414; Knox v. Knox, 95 Ala. 495.) Appellant's contention is not sustained by Sections 5394, 5418, 5442, 5444, Comp. Stats. 1910. Appellant is required to make an affirmative showing of prejudicial error. (Bank v. Henry, et al., 22 Wyo. 189.) Error without prejudice will not warrant reversal. (Kahn v. Traders Insurance Company, 4 Wyo. 419; Gustavensen v. State, 10 Wyo. 300, 325; Fillmore v. Union Pacific, 2 Wyo. 94, 108; Davis v. Lumber Co., 14 Wyo. 518; Kuhn v. McKay, 7 Wyo. 42; David v. Whitehead, et al., 13 Wyo. 189.) This is the general rule. (Usher v. Severance, 86 Vt. 523, 86 A. 741; Robichaud v. Maheux, 104 Me. 524, 72 A. 334; Ritchie v. Steger, 93 Neb. 63, 130 N.W. 838; McKain v. Camden Water, Light & Ice Co., 89 S.C. 378, 71 S.E. 949; Houston & T. C. R. Co. v. Loofs Tex. Civ. A. 160 S.W. 300.) There is a presumption of sanity. (MacCrellish's Estate, 167 Cal. 711, 141 P. 257.) Where there is a conflict of evidence on the question of soundness of mind, the verdict will not be set aside. (Motz's Will, 69 P. 294.) Instructions Nos. 5, 19 and 27 as to degrees of proof correctly state the law.

POTTER, CHIEF JUSTICE. BEARD, J., concurs. SCOTT, J., did not sit.

OPINION

POTTER, CHIEF JUSTICE.

This is a will contest. There was a verdict and judgment sustaining the will, and the case is here on error. Levi Wood, a resident of the county of Sheridan, in this state, died on the 7th day of November, 1914, at an advanced age, 86 years as we understand, leaving an estate in said county consisting of real and personal property, and a will dated and executed on December 30, 1902. That will was filed in the office of the clerk of the district court in said county, and a petition for its probate was filed therein by Daniel J. Wood, a son of the testator and named in said will as the executor. By the said will one-fourth of the decedent's estate was devised and bequeathed to his said son, Daniel J. Wood, one-fourth to his son, Thompson Wood, one-fourth to certain grandchildren named in the will, in equal shares; and one-fourth to certain other grandchildren therein named, in equal shares. The petition for the probate of the will alleged that at the time the will was executed the testator was of the age of 74 years or thereabouts, and was of sound and disposing mind, and not acting under restraint, duress, menace, fraud or undue influence, and in every respect competent, by last will, to dispose of all his estate. Two of the testator's sons, Neri D. Wood and Frank J. Wood, filed objections to the probate, alleging that the testator was of unsound mind and mentally incompetent to make the will when it was made and executed, and that it was executed as the result of undue influence on the part of Daniel J. Wood and his wife. Thereafter another son, George B. Wood, was allowed to become a party to said objections. Amended objections having been filed, an answer was filed by the proponent of the will, denying the averments of the contestants as to unsoundness of mind of the testator and undue influence and alleging that at the time the will was executed said testator was of sound mind and that the same was duly executed, attested and witnessed in the manner and form as therein recited, and as the same purports to have been executed and witnessed.

A jury trial was had upon the issues thus framed, resulting in a verdict for the proponent and against the contestants upon all the issues, and finding that the instrument offered for probate is the last will and testament of Levi Wood deceased. Special findings were returned with the verdict in answer to two questions submitted by the court as follows: "First: Was the testator, Levi Wood, of sound or unsound mind at the time he signed the will in question? Ans. Sound mind. Second: Was the will which was signed by Levi Wood, or any provision therein, the result of undue influence by Dan Wood or his...

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