*1 22642. No. Virginia Woodall, deceased, Freeman, of W. S.
Estate Kelley, John Jr., J. John C. Caveatrix Proponents. Smith, H. Gerald 704) (473 P.2d rehearing July Opinion as modified modified and 1970. Decided August 1970. denied *2 A. for and Tracy, Osgood, Thorvilson Julius Tracy, plaintiff in error. Hugh for all Ross, defendants J. error. pro appearing Young, Jr., also se.
John C.
En Banc. opinion Mr. delivered the Justice McWilliams Chief of the Court. principal is is a contest case and the will issue This ap- correctly interpreted
whether the trial court and plied This ofttimes re- 154-1-2. man’s statute” and hereinafter ferred to the “dead will as as be referred to such. leaving a last will testament
W. Freeman died and S. acting Young, one John Jr., which had been drawn C. by Young for Freeman. The will as as the drawn presence Young in the and was executed Freeman persons acting as two other who were witnesses thereto. Young named executor estate In the will was and the Kelley one itself was divided between one John J. an heir at law Smith, Gerald H. neither whom was Freeman. Kelley Young, as the Smith,
In due time Messrs. proponents, ginia probate. offered the aforesaid will for Vir- daughter (Freeman) and of the decedent
Woodall, as such an she law, heir at thereafter filed a caveat wherein
alleged, inter of the alia, that her father at the time purported execution was of his last will and testament memory; testa- not sound that he lacked mind and mentary capacity; that the aforesaid will was result of undue an Answer to In what was denominated influence. capacity “in his as executor Caveat, named in that ‘Last Will certain instrument denominated ” various Freeman,’ and Testament of W. S. denied allegations set forth in the caveat. by jury
Trial in a verdict that the afore- culminated *3 probate said will should be to admitted and Woodall judgment ad- this writ of error seeks reversal of the mitting probate. the will to Young
Upon objection, trial, was over strenuous permitted testify leading up the as to the events proffered execution of the circum will, as well as to the surrounding stances of the will the actual execution testifying Young permitted itself. In so was to relate various conversations he had had with the decedent. Woodall dead contends that this was in violation the agree. man’s statute. We Shapter’s
In our
In re
Estate,
view
P.
35 Colo.
85
578,
practical purposes dispositive
present
688, is for all
of the
controversy. In that
at-
one,
as in the instant
torney
prepared
who
was
executor
will
also named
in
that case it was
that the
man’s statute
held
dead
apply
does
in
contests;
will
that an executor named
“party”
ensuing
the will was a
contest;
to an
will
under
the dead man’s
com-
statute he was not a
petent
holding
adopted
witness.
thus
this court
minority
compelled
rule but stated
so
that it felt
to do
interpreting a
because Illinois case
similar
law
Shapter
ad-
was also to such
The
rule
been
effect.
has
Ass’n., 94
hered to
this court in Eder v. Methodist
Papish,
Brantner v.
109 Colo.
173,
Colo.
437,
P.2d
these
we are
We that the by enacting judiciary, changed has now law exception 1969a further man’s statute which to the dead specifically permits the executor named in a will to Supp., in a will contest. 1969 Perm. 154-1-2(9). right legislature clearly This the had the provides do. act the statute itself that the apply proceedings should commenced after the effec namely, April tive date of the indi statute, As 16, 1969. proceeding cated, instant tried was commenced and legislative before this enactment and the trial court’s ruling must of course be tested on the basis the law prior as it existed to the 1969 enactment. overruling objection Young’s
The trial heavily Risbry upon Swan, relied 124 Colo. expressing 567, 239 P. 2d 600, the trial court the view Risbry away indicated a “trend” the strict Shapter. regard rule announced In this the trial court’s misplaced. Risbry place, reliance was In the first was Secondly, not a will contest. administrator Risbry estate in the case was determined not to be party; adverse whereas in the instant case Woodall under assuredly party the circumstances most *4 is an adverse Young, Certainly Young, thought the executor. at least, response so the answer he filed to the caveat and participation ensuing his active in the will contest objection, he took stand, wherein then the witness over proceeded question Risbry himself. And in the by way warning, of we declared: by-line guide, possible “As a we wish to add presents quite comment that this case a unusual unique rather infre- situation, one which will doubtless quently care, should be had that arise. Great therefore, applied it be not factual other than under identical presented.” as here situation denying trial the motion for new trial Risbry ruling Eder the basis for shifted its supra. Ass’n., v. Methodist is in Eder it was It true that attorney competent held that the who drew a will awas prohibi in a witness will contest and was not within the tion of is to be noted the dead man’s statute. it attorney not that the in Eder was who drew the will Shapter Moreover, the named executor. Eder followed the rule and declared the executor named in the will not competent argues be witness. Counsel that attorney, person Young, executor, is not the same permitted and capacity. be in his former that he should argument This is too tenuous and the law Shapter, Colorado as executor announced where the also been not decedent, had permit for the does legalistic splitting personalities. such a Alternatively, argue proponents for counsel that the dead man’s is at least unconstitutional, applies Young. support as it No case law is cited in only of this assertion. And our search has disclosed authority bearing point, particular limited on all suggests constitutionality of which the dead generally man’s statute has heretofore been assumed. general In this connection it should be remembered parties disquali at the common law all in interest were statutory legislature by fied from our and that largely negated, though entirely, enactment has now not disqualification. seq. such et Further 154-1-1, general any more, the rule is that in the absence of express provision governing compe constitutional tency question persons of witnesses, the be what shall competent as witnesses on the trial of an issue fact
327 Transp. v.Co. policy. legislative Oklahoma question of a P.2d 946. 77, 226 Owens, 204 Okl. constitutionality of addressing itself to the case
One Security-First National man’s is Corso the dead 56. Cal.App.2d P.2d Angeles, 816, 342 171 Los Bank of following: appears the In that case Procedure, “Finally, urges of appellant if Civil that Code prohibits her 1880, subdivision 3, section as is unconstitutional this it the facts of under against of applied the Constitution and offends thereto, process due and the I, 13, section California, Article in as contained of Constitution clause the United States Appellant states thereto. Fourteenth Amendment the or California, been found either that, ‘No have cases application giving specific jurisdictions, of other type this.’ of principle or similar case to the same pro- argues appellant that these constitutional hearing,’ restriction require that a ‘fair the visions placed equal testimony upon appellant’s her herein denied present evidence’ protection ‘vital under the law to jury. the appellant’s claim of unconstitution- are satisfied
“We ality question be sustained. of statute in cannot the p. 219, it Law, 633, Section Cal.Jur.2d, “In 11 Const. right ‘Again, in the courts the the stated: immunity protected by privilege or is not a state legislature has state Amendment, and the Fourteenth testify, competent power who shall be declare regulate production state of evidence p. § 532, Law courts.’ And in 16 Constitutional C.J.S. legislature right following: ‘The has the find the we general competency witnesses and control testimony; subjects em- but a court cannot be their contrary competent party powered to make a witness general Turner, v. Estate of to the supra, law.’ Vonshina Cal.App.2d page page at P.2d 725 315 at supported sound the ‘statute is said public policy wisely adopted and was interests ” justice.’ judgment
The is reversed. Pringle Mr. Justice Day, Mr. Justice and Mr. Justice *6 Groves dissenting.
Mr. Justice Groves dissenting: great respect
I majority’s have for the disinclination long to overrule a established line of cases. my subject strong enough sentiments on the are I Shapter’s would overrule In re Estate, 35 Colo. following they P. 688 and the cases it insofar as hold prohibited that testifying. executor named in the will is interpretation particularly The harm of this graphic attorney here the named executor was the testator’s Ordinarily,
who drafted the will. prepares qualified anyone who a will is better than else speak as to material matters at issue a will contest. Day I am authorized to state that Mr. Justice Mr. Pringle Justice in this join dissent.