24 Colo. App. 131 | Colo. Ct. App. | 1913
delivered the opinion of the court.
Action begun in Teller district court January 7, 1909. We .have read with painstaking care the entire abstract of record, seven hundred, pages. The record discloses a hotly contested controversy over the probating of a will, and we are not surprised to find the evidence decidedly conflicting upon the material issues. The law has imposed a duty upon the trial judge or jury of .determining all issues of facts. That duty was performed in this case by a lawful jury, which decided the issues in favor of the proponents of the will. The verdict of the jury and decree of the court were to the effect' that the paper or writing in controversy was the last will and testament of Prank J. Burnham, deceased.
It now becomes our duty to examine the record and ascertain therefrom whether or not any reversible error was committed by the trial court in the proceedings before it.
Appellants (contestors) in their petition allege that the writing was not the last will and testament of the testator; that at the time of its signing testator was in a dying condition, unconscious, irrational, and unable to know and understand the contents or purpbrt of the same; that he never became conscious or rational after the said writing was prepared and presented to him, and if he did sign such writing he did so by reason of persuasion, arguments, physical effort, and undue influence of other persons; that he was not at the time of sound mind and memory, and had not been of sound mind and memory for several years prior to that time.
Frank J. Burnham, the testator, left surviving him as sole heirs at law, a brother living in California and sister living in New Hampshire. The evidence tends to show that from early in 1902 up to. February 24, 1909, the testator had been living continuously with the Nevitt family at Florissant, Colorado, and during all that time had been treated by them as though he were a member thereof; that he was of an advanced age (68 years) and was seriously crippled by reason of an accident which had resulted in a broken leg; that for about nine'or ten months after he joined the family he used a cane in walking, and was incapacitated by reason of the accident from performing any physical labor of moment; that while living with the family he was ill a number of times, sometimes being confined to his bed; that during such illness his meals were provided for him and generally taken to his sick chamber by Mary Rebecca Nevitt, the devisee; that during all of the six years residence with the family he at all times was treated with kindness ■ and consideration by the various members thereof, was furnished by Mary Rebecca Nevitt and her husband with food, shelter and necessary clothing, and at times with modest amounts of money; that some time after joining the family testator volunteered to work for Mr. and Mrs. Nevitt (who were at that time conducting a hotel); that he cut and carried wood, carried water, went on errands, and performed other services of like nature in and about the hotel; that two or three months before testator’s
Counsel suggests that it was the duty of the testator to will his property to the brother or sister, instead of to a.stranger. "We cannot assent to this. There may exist in man a natural inclination to will his property to relatives rather than to strangers, but this inclination is frequently removed by circumstances surrounding the testator. It is common knowledge that the blood tie between brother and sister is not as binding as that between parent and child, or the tie between husband and wife. Even then a parent may lawfully disinherit his own child if he chooses, and a husband or wife may disinherit the other to the extent of one-half of all his or her estate. It is not an unreasonable presumption in the light of this record, that the testatop in executing this will may have been influenced by gratitude and appreciation in devising his property to appellee, Mary Rebecca Nevitt.
Ninety-nine assignments of error appear in the record. Appellants’ counsel contends that the trial court committed reversible error in permitting-Melvin, Daniel, Guy and Minnie Nevitt (Mrs. Grant) to testify at the trial on behalf of proponents, on the ground that they were interested witnesses under the statute. We think they were competent to testify under Sec. 4816, Mills’ Annotated Statutes. — Butler v. Phillips, 38 Colo., 378, 88 Pac., 480, 12 Ann. Cas., 204; White, Admr., v. Christopherson, 46 Colo., 46, 102 Pac., 747; In re Hatfield’s Will, 21 Colo. App., 443, 122 Pac., 63. In the latter case it was held that the wife of the legatee was a competent witness.
Appellants also complain of the action of the trial court in refusing, on its own motion, to allow the witness Kessel to answer the question-propounded on cross-examination, viz.: “Do you think that indicates a bright
Error is also -claimed by the admission in evidence of certain letters written by the testator to Guy P. Nevitt, his attorney, which letters were written between July 9, 1906, and testator’s death. The letters were competent evidence under the issues that testator had not been of sound mind and memory for several years prior to the time he signed the will, and that for several years prior thereto his mind and memory were so weak and unsound that he was not fit or competent to fairly, safely or properly care for or preserve his property or transact business. The jury were entitled to consider the contents of these letters concerning such issues for what they were worth as proving or disproving a weak and unsound mind, or the testator’s incompeteney to transact business, etc. — In re Shapter’s Estate, 35 Colo., 578, 85 Pac., 688, 6 L. R. A. (N. S.), 575, 117 Am. St., 216.
Under the 35th assignment of error appellants vigorously assert the invalidity of the will, on the ground that it was not attested in accordance with the statute, Sec. 4653, Mills’ Annotated Statutes, and Sec. 4664, Revised Supplement. If witnesses, when signing a will,
In the 62nd and 63rd assignments of error appellants claim that it was error in the court to exclude from evidence Exhibits 19 and 20, being letters purporting to have been written by F. B. Burnham, one of the contestors, to J. B. Severy. Objection was made on the grounds that the same were not sufficiently identified, were written by one of the parties to the suit, etc. We think the objections well taken. The witness Bobinson did not purport to testify that he knew the signature or handwriting of the author of the letters, or that they were written or signed by such author. As we read the record, proper identification was wanting. On the second ground they were inadmissible as self-serving statements made by one of the parties to the suit, such party being specifically disqualified by the statute. — Mills’ Annotated Statutes, • Sec. 4816; Butler v. Phillips, supra; In re Shapter’s Estate, supra.
We have carefully examined the record as to the rulings of the trial court in excluding from evidence the hypothetical questions propounded to the physicians. All such questions but one included substantially this language: “If one suffering from pneumonia lay in bed on his back from, noon or 1:30 p. m. with his eyes and mouth open, his face purple, his pulse about 145, gasping for breath, paying, no attention to anything or any per.son, except to answer a question when asked, and that condition continues until between 5:30 and 6:00 o’clock, what would you say, ’ ’ etc. There is no evidence to show
Appellants requested seventeen instructions to be given to the jury, all of which were refused, and error is predicated thereon. Of the instructions so refused, 1, 2, 4, 10 and 16 are abstract statements of law upon the question of insanity and insane delusions, and in s.o far as they purport to guide the jury in deciding the mental capacity of the testator they are not so helpful as given instructions numbered 5, 6, 9 and 10. The instructions so given pertain to the same subject-matter as those refused, and by their phraseology more clearly interpret the law with reference to the facts disclosed by the evidence. The instructions so given appear to have been carefully considered, and are supported by reputable authority.
Redfield on Wills, vol. 1, p. 121, paragraph 11; Trish et al. v. Newell et al., 62 Ill., 196, 14 Am. R., 79; Schneider
Twelve instructions were given by the court, and appellants assign error upon all thereof except the first three. Those numbered 5, 7, 9 and 11, however, are not
“The refusal of instructions, which, though containing correct propositions, could not, in view of all the facts developed by the evidence have prejudiced the party complaining, will not operate to reverse the case.” — Sec. 190, Yol. 1, Brickwood’s Sackett on Instructions.
“Upon looking at the instructions given, we find them to be consistent with each other. They must, there*146 fore, be considered together; and if, as a whole, they fully and fairly submitted the questions involved to the jury, we do not see that the defendant has any ground of complaint.” — Hindry v. McPhee, 11 Colo. App., 398, 53 Pac., 389.
To the same effect, Davis et al. v. Shepherd, 31 Colo., 141, 72 Pac., 57.
Appellants next complain that the court erred in not receiving oral testimony at the time the motion for new trial was under consideration. There was no error in such ruling. The supreme court in Schoolfield v. Brunton, 20 Colo., 139, 36 Pac., 1103, has settled the question by holding that the matter of receiving oral testimony in addition to the affidavits required by Sec. 217, Mills ’ Annotated Code, is within the discretion of the trial court. The record does not suggest an abuse of this discretion.
Under assignment .©f error number 99, appellants challenge the form an^F'Validity of the decree, but cite no authority to sustain their reasoning. We are unable
The record here shows, on the one hand, that the testator, at the time he made the will, had a brother and sister living in this country; that his sister possessed an abundance of love and affection for the testator, and the brother a kind and considerate feeling’ towards him; that some-years before his death they donated to the testator their interest in a certain ranch which he afterwards sold for some $2,000; hence, whatever feeling of hostility, if any, which the testator might have entertained against them, was unfounded. On the other hand, the evidence discloses a man of advanced age, seriously crippled and disabled from a broken leg, enflifejig into the family circle of the Nevitts at Florissant; that for many months after joining them he was not able to do any physical work of moment, and during such time was penniless, without home or habitation other than that provided by his benefactors; that a portion of such time he was ill, but received from them shelter, food and kind attention, particularly from the legatee, Mary Rebecca Nevitt; that for about six years he remained with them, and after they
We have endeavored to give this case most careful consideration, and have examined every assignment of error, but have noticed only, in this opinion, those we deem the most important. Upon a full consideration of the entire record we cannot say there has not been a fair and impartial trial. Neither do we discover anything in the record which justifies an inference that the trial judge was governed by improper motives, or displayed, at •the trial, any bias or prejudice, for or against, any of the parties or attorneys, or that the jury did not act honestly and impartially in rendering'their verdict. The judgment is affirmed.
The instructions given below are as follows:
3. It is provided by statute that every person, aged .twenty-one years, if a male, or eighteen years, if a female, being of sound mind and memory, shall have the power to devise all the estate, right, title
A will, to he valid, must he in writing and signed by the testator, or. hy some one in his presence and hy his direction, and attested in the presence of'the testator hy two or more credible witnesses. An attesting witness is one who subscribes his name to a will as a witness to its execution, at the request of the testator.
4. If Frank J. Burnham signed the instrument in question in the presence of Melvin L. Nevitt and May Horrigan, who were in the same room with the said Frank' J. Burnham and only a few feet from him, with the view between the-said Frank J. Burnham and’the-said Melvin L. Nevitt and May Horrigan uninterrupted, and the said witnesses at the time within the range of the vision of the said Frank J. Burnham;- and if the said Frank J; Burnham, taking into account his then condition- or state of health, and his then position, as shown by the evidence, either saw, or could have seen, if he had wished -to, and had looked in the proper direction, the said witnesses; and' enough of the act then being done by them, to know on .his- part' from what he
5. It is only requisite that the said Prank J. Burnham at the time of making his will should be of such sound mind and memory as to enable him to know and understand the business in which he is engaged. It is not necessary that he should be in the full possession of his reasoning faculties. It is only necessary that the testator should have mental capacity sufficient for the transaction of the ordinary affairs of life, and possessing these, though he may have been feeble in mind and body from sickness or old age, he had the legal right to dispose of his property Just as he pleased, without consulting either his family or acquaintances. If at the time he signed the paper in dispute, he had mind and memory sufficient to transact his ordinary business, and when he made the will he knew and understood the business he was engaged in, then you should find the said paper writing to be his will.
6. A person, in order to make a valid will, should be of sound • mind and disposing mind and memory. What is meant by soundness
7. A will proved or admitted to have been executed and attested, as prescribed by law, will be presumed to have been made by a person of sound mind; but if testimony is shown which counterbalances that presumption, the party seeking to support such will must establish by affirmative evidence-to the satisfaction of the jury that the testator was of sound mind when the will was executed.
Ordinarily, where a will is in proper form, signed by the testator,
8. Where undue influence is relied upon to set aside a will, the question to be decided is, did the testator make and execute the alleged will in all its provisions of his own free will and volition, so that it now expresses his own wishes and intentions, or was the testator constrained or induced through the undue influence, restraint, coercion or improper conduct of others, to act contrary to- his own desire and intentions regarding the disposition of his property, or any part of it? In order that one contesting a will may prevail, it is necessary to show by the evidence that undue influence was in fact exerted over the party making the will, and that it was successful in subverting and controlling the will of the party making the will. Both of these facts must be proven by the contestants by the weight of the evidence in order to defeat the will.
9. If said Frank J. Burnham, on the day he made the alleged will, was suffering on account of disease, or that his mental faculties were obscured by the disease from which he was suffering, still this would not necessarily prevent his having sufficient capacity to make a
10. An insane delusion is á fixed and settled belief in facts not existing, which ho rational person would believe. Such delusions may sometimes exist as to one or more subjects. To sustain the claim of the contestants that Frank J. Burnham was laboring under the insane delusion in regard to the relation and temper of his brother and sister toward himself, it is not sufficient to show that he had a suspicion to that effect, or that his suspicion was not well founded. Although he may have had groundless and unjust distrust with reference to the feeling of his brother and sister towards himself, yet such doubt does not establish a condition of lunacy, or the lack of testamentary capacity, unless it appears from a preponderance of the evidence that such distrust caused him to execute a will he would not otherwise have made. The right of the testator to dispose of his estate depends neither on the justice of his prejudices nor the soundness of his reasoning. He may do what he, will with his own, and if there
11. You are the judges of the credibility of the several witnesses who have appeared before you, and of the weight or importance to he given to their respective statements or evidence. In passing upon these matters you may take into consideration the interest, if any, the witnesses may have in the result of this trial, their conduct upon the .witness stand, their intelligence or want of intelligence, their candor or want of candor, their means of knowledge of the facts to which ■they have testified, any bias that they may have shown in their evidence, and from all the facts and circumstances occurring at the trial, determine which witnesses are the more worthy of credit and give credit accordingly, and give the evidence of each witness such weight as you shall deem it justly entitled to. If any witness has wilfully and corruptly testified falsely concerning any material matter in this case, you are at. liberty to disregard the whole or any portion of the evidence of such witness, except in so far as such evidence is corroborated by other credible evidence.
12. As to any argument, statement or objection made to the court, or to the other counsel by counsel of either party, or any remark, decision or' order made by the court, and not made to the jury for their consideration in the matter during the progress of this trial, it is not a matter for your consideration in this ease, and should not