Cook v. Bolduc

157 P. 580 | Wyo. | 1916

Lead Opinion

Beard, Justice.

Josiah Cook died on March 6, 1914, at the ) of fifty-six years. At the time of his death he was possessed of property of the value of $30,000 or $35,000. Pie .left surviving him Nina May Cook, his widow, and Anna Bolduc and Leila Beatrice Masonheimer, his adopted daughters. He left a will executed October 16, 1912, by the terms of which (after providing for the payment of his funeral expenses and his just debts) he devised and bequeathed to said Anna Bolduc the sum of one thousand dollars in cash. To C. A. Zaring a diamond ring; and to said Nina May Cook all the residue of his property. The will was offered for probate in the district court, and was contested by the daughters on the ground of undue influence alleged to have been exerted over the testator by his wife. The trial resulted in a finding and judgment that the will was procured by undue influence exerted by said Nina May Cook over the deceased, Josiah Cook, and that the same was not his last will and testament, and refusing to admit it to probate. From that finding and judgment Nina May Cook brings the case to this court alleging error.

When the matter came on for trial in the district court, the contestants demanded a jury trial, to which the proponent and contestee objected. The objection was overruled and the matter submitted to a jury which returned its verdict that the will was procured by undue influence which verdict was adopted by the court and the court also made its own finding to the same effect. The granting of a jury trial is assigned as error. There are also numerous assignments of error on the rulings of the court in admitting and in excluding evidence, and other matters. The principal ground, however, upon which a reversal of the judgment is sought is the overruling of the motions of contestee for a directed verdict and in the court’s refusal to admit the will to probate for the reason that the evidence was insufficient to support the contention that the will was procured by undue influence. Upon a full and careful examination of all of the evidence we are fully convinced that contestants have failed to present such a case as would warrant the rejection of the will in question as the will of the deceased. That being our conclusion on the merits of the case, the other assignments of error need not be considered. It appears that deceased was twice married, his first wife having died in August, 1909'. Tt was during the lifetime of his first wife that he adopted the contestants as his daughters, and both of them had left his home and were married prio.r to his marriage with plaintiff in error, which occurred in July, 1911; Mrs. Bolduc having been married December 31, 1908, and Mrs. Masonheimer left deceased’s home in January, 1910, and was married sometime thereafter. The evidence is to the effect that deceased had a paternal affection for both of these adopted daughters until á short time after Mrs. Masonheimer left his home and went to Mrs. Bolduc’s home in Minnesota, and that he was displeased with her marriage and for other reasons sufficient to explain why he disinherited her by his will. When he went to Mr. Zaring, his attorney, to have the will prepared he asked him if the will would be valid if he gave her nothing; and in other ways indicated to others his change of feeling toward her. After his death the will was found among other papers in his safe in his store, sealed in an envolope and endorsed “My last will, Josiah Cook,” in the hand writing of deceased. Among those papers was a sealed envelope bearing deceased’s business card and endorsed in his hand writing, “To be opened after my Death by C. A. Zaring. In case any question Is Raised concerning The validity of my will by the Mason-heimers George or Trixie.” (signed) “Josiah Cook.” (It appears that Mrs. Masonheimer was also called and known as Trixie.) This envelope was opened by Mr. Zaring when contestants filed an application for an extension of time to prepare and file a contest against the probate of the will, and contained letters which indicate why Mrs. Masonheimer was disinherited, if that were material. The evidence is to the effect that deceased was an habitual user of intoxicating liquor, but was a man of strong will power, was not easily influenced, and was at all times able to and did attend to his business, he being a merchant, and also dealt in reál estate. Evidence was admitted, over objection, that the first Mrs. Cook when she married deceased owned property of the value of from $10,000 to $20,000 and by her will left $500 to each of contestants and the balance to her husband, and it was claimed that these amounts had not been paid in full by deceased who was executor of the will. And there was evidence teiiding to show that on her death bed she requested him to leave that property to contestants and that he promised to do so. But this is not a suit on a contract to make a will, and it is probable the jury was misled by such testimony. A witness who was a clerk in the store testified that he heard Mrs. Cook say to her husband, “have a will made out, you don’t know what might happen, a person getting married a will should be made out the moment he got married, you don’t know what might happen.” This witness also testified that in October, 1912, Mr. Cook said to him, if Mr. Zaring come in tell him he would be back in a few minutes ; that'Mr. Zaring came and enquired for Mr. Cook and said to tell him he (Zaring) was waiting for him. That witness told Mrs. Cook Mr. Zaring wanted to see Mr. Cook, and that she said “Joe is having his will made out.” The witness is positively contradicted by Mr. Zaring who said no such occurrence took place; and it was further shown that witness was not working in the store in October, 1912. There is no other evidence in the record that Mrs. 'Cook knew a will had been made, that she ever saw it or knew of its contents until after the death of Mr. Cook. Mr. Zaring testified that she was not present when Mr. Cook gave him the data for preparing the will or when it was executed, and that she had never consulted him or talked to him about it until after Mr. Cook’s death. There is evidence of unfriendly feeling between contestants and contestee prior to the execution of the will, and there is evidence tending to show that this feeling on the part of contestee was engendered by the acts and conduct of contestants, and that this condition of affairs caused the deceased some distress of mind. We have not attempted to set out the entire evidence, as to do so would serve no useful purpose; but the above states substantially all of the facts upon which the chargé of undue influence was based. From a consideration of the entire evidence we have arrived at our conclusions. There is nothing in the evidence to disclose that Mrs. Cook at any time exercised a controlling influence over her husband, but on the contrary it appears that he was a man- who managed his own affairs in his own way. The question is not whether this will is such an one as a juror, the district court or this court is of the opinion the testator should have made under the circumstances; but was it the will of Josiah Cook at the time, and was it his desire that his property should be disposed of after his death as therein bequeathed and devised? Wills deliberately made by persons of sound mind are not to be lightly set aside. And the undue influence which will warrant doing so must be proven to be such as destroys the free agency and thereby substitutes the will of another for that of the testator. The subject is quite fully discussed and authorities cited in Rood on Wills, Sec. 175 et seq., and the rule of law on the subject is so well settled it is not deemed necessary to cite further authorities. It is seldom that this court feels it its duty to set aside the findings of a jury or the trial court on the evidence; but from a consideration of the entire record in this case we are forced to the conclusion that the evidence is so insufficient to sustain the verdict and finding of the court that the court should have directed a verdict in favor of' contestee and against contestants, and should have found that the charge of undue influence was not sustained, and should have admitted the will to- probate. We are convinced that the instrument offered for probate as the last will and testament of said Josiah Cook is in truth and fact his will and should be admitted to probate as such. •

The order and judgment of the district court is reversed and the cause remanded with directions to vacate the order and judgment heretofore entered and to enter an order admitting the will to probate.

Reversed and remanded with directions.

Potter, C. J., and Scott, J., concur.

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Rehearing

ON PETITION EOR REHEARING.

Beard, Justice.

Counsel for defendants in error have filed a petition for a rehearing in this case and urge two grounds therefor. First: the failure of the court to specifically state in its opinion that a motion to strike the bill of exceptions from the files and to dismiss the proceeding in error was denied; and, Second: that the evidence does not sustain the conclusion announced in the opinion. We should have stated in the . opinion that the motion to strike was denied. The cause was pending in the district court of Big Horn county, in the Fifth Judicial District, and on the judge of that district being disqualified the judge of another district was called in to try the case. After judgment was rendered a motion for a new trial was filed, and by consent of parties was heard and determined by the judge who tried the cause, at chambers in his own district. After the overruling of the motion for a new trial the plaintiff in error presented-a bill of exceptions to the judge who tried the cause, which was allowed and made part of the record and is so certified to this court by the clerk of the district court. The motion to strike the bill from the files is based on the ground that no order was made giving the plaintiff in error time within which to present the bill for allowance. It is not claimed that the bill was not presented for allowance within the time the court might have granted had time been asked for that purpose, and it was presented before the first day of the succeeding term; but the contention and only contention is that it was necessary to ask for and procure an order granting time. We think the case comes clearly within the provisions of- Sections 4463, 4464, 4465, 4466 and 4467, Compiled Statutes 1910, by the terms of which the judge is authorized at chambers and in vacation wherever he may be in the state to pass upon a motion for a new trial; and any party desiring to appeal from the decision so made shall have the right to do so without excepting to such order and decision; and shall have at least sixty days, and until the first day of the succeeding term should such day be more than sixty days distant, in which to present for allowance his bill of exceptions showing the errors complained of, without the making of any order by the court or judge allowing him such time. These provisions are made to apply to the judge of another district called in to try a case. The bill in this case having been presented strictly within the provisions of this statute and being such a case as is therein provided for, the motion to strike it from the files was denied.

The case is unlike Palmer v. State, 157 Pac. 695, cited by counsel. In that case no bill of exceptions was ever filed in this court, and the record did not disclose that one had ever been presented for allowance or allowed. In this case the bill was presented and allowed and the judge certified that it “was presented within the time provided by law,” which as we understand the statute was true.

Upon the other ground urged for a rehearing we have to say, that we gave to the evidence very full and careful consideration and were unanimously of the opinion that it was insufficient to sustain the contention that the will was procured by undue influence. Upon further consideration and consultation we are still of that opinion. The case was presented in an elaborate brief and fully argued orally, and we are convinced that little, if anything, could be added thereto by a reargument. A rehearing is denied.

Rehearing denied.

Potter, C. J., and Scott, J., concur.