48 P. 295 | Idaho | 1897
A written document purporting to be the last will and testament of Samuel E. Gwin, deceased, by which he bequeathed substantially all of his estate and property to his wife, Minnie Gwin, and appointed her executrix thereof, without bond, was presented to the probate court of Cassia county for probate. Prior to the day set for hearing said matter, Frank P. Gwin, son of the deceased, filed written grounds of opposition to the admission of said will to probate. The grounds of the contest, as set forth in said written opposition or complaint, are as follows: 1. That the deceased, at the time of making said pretended will, was incompetent to make said will or any will; 2. That said pretended will is not the will of said deceased; 3. That, at the time of the alleged signing of the pretended will, said deceased was laboring under and had an insane delusion as to the contestant; 4. That, at the time of the alleged signing of said pretended will, said
It appears from the transcript that Samuel R. Gwin, the deceased, left the state of California in 1872, with three children,
It is contended by the appellant that there is an irreconcilable conflict between the special findings of the jury on the special issues submitted, and for that reason the court erred in entering judgment on said verdict, and that, as said verdict finds two inconsistent material facts, it is void, and cannot be the foundation for a legal judgment. Under the first special issue submitted, the jury found that the deceased, at the time of making the will in question, was competent to make the
It is very apparent that the main reliance of contestant was based upon the fifth special issue submitted to the jury, to wit, that, at the time of making the will in question, deceased was under duress and undue influence. The finding on that issue
In support of that issue the contestant introduced the depositions of Horace Hawes, Esq., who drew said will and signed it as a subscribing witness. Said Hawes had been employed by the deceased as an attorney at law at different -times from 1888 to 1893, and had charge of some important suits for him. At the time said will was signed said witness was of the opinion that the testator was mentally competent to dispose of his property by will or deed, but some years afterward he changed his mind as to testator’s competency. A few quotations from his testimony will suffice. He deposed: “Although I did not consider Mr. Gwin physically sound, or as able mentally as he had been, I think he understood what he was doing.” “I consider the will was made wholly under the influence of Mrs. Gwin.” He at first deposed that Mrs. Gwin was present when the will was signed, but later stated, “to the best of my memory.” In his second deposition, taken May 13, 1895, over five years after said will was executed, he deposes that Mr. and Mrs. Gwin came to his office, and requested him to draw a will whereby the bulk of his property should be left to Mrs. Gwin. He de
The contestant introduced the deposition of Earnest Mans-fieldt, which shows: That said deponent first became acquainted with the deceased on July 35, 1893. That he was employed by the testator as a laborer, and was quite intimate with him. That the deceased complained of his wife, Mrs. Gwin, to deponent. That he said she was extravagant; that she had separated him from his children; that he had made a will in her favor, but that he would change it and leave the largest part of his estate to his children. That he accused his wife of stealing a finger ring and a will that he had executed; that she would not allow his boys to come near him; that she was afraid, if he had his children near him, she would not get anything; that, if she behaved herself as a good wife, he probably would do what was right; that she was a drunkard; that all she was good for was to misuse him because he would not turn his property over to her; that she was in Idaho, and he wished she would stay there. That deponent had a quarrel with Mr. Gwin, and he thought Gwin was a little weak in the mind. That he' had seen Mr. and Mrs Gwin together, and had never seen her treat him cruelly, “except her using profane language.” The record shows that witness Mansfieldt attempted to extort money from Mrs. Gwin under the pretense that he had in his possession a will made by Mr. Gwin. He wrote Mrs. Gwin two letters over the name of “Mickie Drake.” The first one he closed with the following suggestion: “Now, do what you please, and be wise.” In the second letter he says: “I herewith tell you once more I have those papers, and that settles it. Now, if you do not agree with me, I will represent them' where you would not like to have them.” Thus it is shown that witness Mansfieldt had another occupation than that of working fruit, and that his wife (witness Bertha Mansfieldt) was cognizant of that fact.
Contestant also introduced the deposition of B. J. Waugh, which shows that the deponent first became acquainted with Mr. Gwin in July, 1892; that said Waugh first met Mrs. Gwin in August or September, 1893, when Mr. Gwin was quite sick; that he had a long conversation with deceased, in which he spoke very bitterly against his wife and very kind of his children. The witness details at length the declarations made, or claimed to have been made, by the deceased at that time, which we do not deem it necessary to set forth here. Such declarations were not made in the presence of Mrs. Gwin, and are merely hearsay. The witness deposes: That, on the nest day -after having the conversation above referred to, he went to see Mr. Gwin, and in the meantime Mrs. Gwin had arrived; also, Mr. March, the son in law of Mr. Gwin. That very little was said on that visit, and as he left the house he stopped in the
Herman H. Albers, a witness for contestant, testified to declarations claimed to have been made to him by Mr. Gwin in 1891 and 1892 — among them, that deceased stated he was afraid that the house would be burned by Mrs. Gwin because he would not do what she wanted him to; that he called witness’ attention to some matches which he claimed Mrs. Gwin had left there, and said that he had heard some one there the-night before, and was afraid of being burned out. The witness admitted that Mrs. Gwin was in Idaho at the time referred to. Later, witness was not on speaking terms with Mr. Gwin. The record contains letters written by this witness to the probate judge of Cassia county and to Mrs. Gwin that revealed his true character and the utter worthlessness of his testimony, provided the declarations of deceased, made long after the making of said will, were competent to impeach it, which they are not.
Other witnesses testified to declarations claimed to have been made by Mr. Gwin in regard to his feelings toward the con-testee and his children. The declarations of deceased, as testified to by the various witnesses, were admitted, over the objections of contestee, to establish the issue of undue influence, and were improperly admitted.
It appears from the transcript that the deceased had made a certain deed whereby he conveyed certain land to the contestee, and deposited the same with Horace Hawes, Esq., of San Francisco, Cal., and that on January 19, 1893, Mrs. Gwin wired said Hawes to forward the deed to her, and signed the name of “S. R. Gwin” to the telegram. The deed was forwarded as requested, and Hawes thereupon brought suit against Gwin for $1,000, claimed to be due for legal services. Mr.. Gwin then wrote to said Hawes in regard to said suit, and Hawes replied on January 31, 1894, to which last-mentioned letter Gwin replied under date of February 3, 1894, in which letter he states that Hawes’ letters explained the mystery about
There is no direct evidence in support of the findings of undue influence. Certain declarations of the testator, made months, and some of them years, subsequent to the making of feaid will, were admitted, over the objections of contestee, in support of that issue. The rule is well established that such •declarations are incompetent to show either that undue influence was exercised, or that it affected the testator’s actions, ■except as such declarations may illustrate his mental state •and give a picture of the condition of his mind at the time such declarations were made. (Calkins’ Estate, 112 Cal. 296, 44 Pac. 579; Cudney v. Cudney, 68 N. Y. 149; In re Hess’ Will, 48 Minn. 504, 31 Am. St. Rep. 665, 51 N. W. 614; Leslie v. McMurtry, 60 Ark. 301, 30 S. W. 33; Shailer v. Bum-stead, 99 Mass. 112; Crocker v. Chase’s Estate, 57 Vt. 413; Herster v. Herster, 122 Pa. St. 239, 9 Am. St. Rep. 95, 16 Atl. 342; Guild v. Hall, 127 Ill. 523, 20 N. E. 665.) In Calkins’ Estate, supra, in referring to subsequent declarations of testatrix as evidence, the court says: “But to the extent that they purported to be declarations of the acts of others, or of her own acts, they were but matters of hearsay, merely,
We find in the record twenty-eight specifications of error in regard to the admission of evidence, and have considered each, but do not think it necessary to pass upon each separately, as they refer in the main to the admission of what was claimed to be declarations of the testator made one, two, three and four years after the execution of said will. However, some of the specifications of error refer to the admission of the
The giving and refusing to give certain instructions to the jury are assigned as error. The court refused to give the following instruction asked by appellant: “The jury in this ease-are instructed that the plaintiff has failed to introduce evidence sufficient to justify a verdict in his favor, and you must find a verdict for defendant.” The court erred in its refusal to give that instruction. The evidence is not sufficient to-sustain a verdict for the plaintiff. At most, it is only sufficient to raise a suspicion in his favor. In Calkins’ Estate, supra, it is said: “In order to justify the submission of any question of fact to a jury, the proof must be sufficient to raise-more'than a mere conjecture or surmise that the fact is as alleged. It must be such that a rational, well-constructed mind can reasonably draw from it the conclusion that the fact exists, and when the evidence is not sufficient to justify such-inference the court should refuse to submit the question to the-jury.” In the case at bar the evidence was not sufficient to-justify the conclusion that the material allegations of the-complaint were true, and the court ought to have directed the-jury to find a verdict for the contestee. In our view of this case, it is unnecessary for us to pass upon the exceptions to-the instructions, the ground of exceptions being that there was no evidence before the jury warranting the giving of said instructions. Instructions must be applicable to.the evidence,, and, as there was no evidence before the jury authorizing a. verdict in favor of the contestant upon the issues made, it was error to give the instructions complained of. An instruction defining an abstract proposition of law, where there is no evidence in the case to which such instruction is applicable, only serves to befog and mislead the jury, and should not be given. (Calkins’ Estate, supra.) In that case the court says: “A • court should adapt its instructions to the evidence which is to-be considered by the jury, and, instead of giving to them definitions of abstract propositions of law, should so connect its
The order of the court below denying a new trial was error, and must be set aside and a new trial granted, and it is so ordered. On account of the condition of the transcript as first presented to this court, the respondent will not be required to pay the cost of the same. Other costs of this appeal are awarded to appellant.