*2 GRAY, McINTYRE, and Before PARK- ER, JJ. opinion- .Mr. GRAY delivered Justice
of the court. Morton, A. longtime Robert resident Cheyenne, Wyoming, February died and was survived Robert Morton J. nephews and Charles R. only legal Following his á heirs. death purported May will dated was. as, probate by Reynolds offered M. S. therein, the executor named and in due- pro- course instrument admitted bate as the last will testament of said decedent. 2-83, Within the time fixed W.S. nephews, hereinafter called disinherited, had been filed' who
their seeking to ad- have the order mitting probate the will to aside the' set Reynolds. letters issued to M. S. revoked. claim set contestants was forth in- separate
four The first ah- counts. count presenting that a that strike us and belief those matters leged on information important questions case, bene- .subsequent naming contestants as large formally exe- turn will eliminate to a extent ficiaries or devisees had superseded necessity separate each and discussion cuted the decedent and had *3 will; posses- every complain. in ruling of contestants the 1960 that such will was Reynolds; had and that sion of M. S. One in questions of the most bothersome n notbeen the produced. In this connection the case the contention of subsequent will record discloses that such no presented theories, a under different that de- found, far we can was ever and so granted new trial must for the reason part has claim termine that of contestants’ that were entitled to and did not receive third The second and been abandoned. a trial of all the the of material issues in counts, alleged together, in sub- considered disposing case. of this contention we handwriting of in the that two letters stance limit our consideration the framed to issues petition, dated decedent attached to the by petition proponents’ the and the answers 18,1961, 27,1963, respec- July December and the thereto inasmuch as those matters form holographic tively, a will which constituted complaints. premise basic for contestants’ revoked the 1960 or alternative have forth the set above sub revoking a that the letters codicil constituted grounds upon stance of which contest the part least to the extent in the 1960 will “at the ants relied to sustain their claim that specific bequests to that are therein made” part. will in was invalid in whole or alleged, The count the contestants. fourth might agree clari While well that some we alternative, of the the that at the date in helpful, it our fication would have been decedent of the 1960 will the execution liberally con view the when competency a will legal to make last lacked strued, issues, primary the tendered two and testament. first of which was the 1960 will Reynolds, The proponents, The M. S. in part by been the whole or revoked Cheyenne, Presbyterian of Church First subsequent holographic instru described sepa- Wyoming, and Emilio filed by argument ments. some is made denying contestants’ answers essence rate proponents the not that such issue is claims; the alleged 1960 will was that the contest, disagree. a material we by dece- only instrument left chal question it was a Without matter that dent; prior date of the “validity lenged of subsistence” had been de- the testator letters described Estate, Wyo. Stringer’s re 1960 will. In incompetent guardian had been and a clared 2-83, 786, 789. See also person and estate. When appointed for his Camatsos, v. W.S.1957; Bearman each trial and after came on for the matter 91, 95. The 231, 385 S.W.2d Tenn. presented parties their evidence issue, the al primary alleged in second rested, proponents moved for ternative, incom that decedent ground that con- verdict on directed petent The to the 1960 will. issues execute present sufficient evi- to had failed testants pro by so were controverted tendered proof. of their burden to dence sustain contestants, to ponents agree and we judgment entered granted and motion least, the issues at that such were this extent con- judgment the accordingly. From trial. when the came on for case appeal. testants however, reason, not which is For some readily pre- apparent advanced from the have been record —no Many claimed errors procedural relating separate trial having held no trial by pursuant con- having those been ordered evidentiary rulings. While the issues consideration, W.R.C.P., provisions 42(b), of Rule received all tentions dispose of provides separate can trial concluded has been this incompatible attention to court directing our trial issues deemed appeal —the dependent upon to limit and limit issues either undertook did the other in the in- proposed in the trial case to the trial of matter or that dis case competency. position That much is conceded in prejudice would result decision,, proponents. justice parties. Yet at the conclusion of That course, make, the trial court evidence directed is ours to Cottier Sul livan, finding “generally return verdict against proponent-defendants plain- apprehensions think it is aided of the. court, record, “be apparent the 1960 will not tiff-contestants” from the only interdependent not set revoked.” On the that the were aside or basis issues not verdict, try together might judgment was entered non- but to undertake them *4 suiting jury prejudice.: the contestants. confuse a in well result parties. to of the all hold that this was error. The
We of material issue claimed revocation brings That us to the next broad' trial never tried. It is function of the the question of whether or not the trial court initially in a have court case such as we here directing pro in erred a verdict for the de to determine the law and the to ponents compe on ultimate the issue of the termine the Buckman v. United Mine facts. tency the of decedent to execute I960' the America, Wyo. P.2d of 80 339 Workers will, discussing and in question this we shall' 398, 402, rehearing 342 denied P.2d subsidiary also make reference to certain That, however, com does not furnish the questions by the raised contestants. plete answer contestants’ to contention this, principal contention of contestants in they are to trial the entitled a new of all of regard is there sub was sufficient in be de issues the’ case. As will later presented by stantial evidence them re to veloped, have concluded that the con quire of the jury» submission matter to the testants did a fair trial receive on That, course, of analysis will entail some of issue; incompetency underlying and the doing the evidence. keep In so we in mind question is, Can the made be error cured prevailing rule that on a directed ver ordering partial of a new trial on at taking dict the close of the of evidence revocation issues? given consideration bewill to all evidence think can and that together this should favorable to the We jurisdiction legitimate be done. We have of the case reasonable inferences appeal may for is a which reason be deduced therefrom. In re Draper’s Estate, judgment Wyo., of nonsuit. The circumstance In re presented, it, Estate, wé view falls Lane’s within the scope 72(h), W.R.C.P., pro of Rule 363-364.
vides as follows: point out also that no there is judgment in “Where is reversed ready formula for disposing phase of this relating only error is to issue which of a will great contest. To a extent out way dependent proper its trial in no come dependent upon of each case is any on issue found have other or issues to present. pre facts circumstances tried, partial properly been new have, course, cases of set vious forth may prejudice in- be without concerned,
justice guides the- parties to of the certain must be observed may be the cause remanded for the trial determining of trier the facts the ulti upon of issue alone which the error question testamentary capac factual mate of was committed.” ity; helpful may and it be to in a state general way must 'be is a elements essential to show conceded there relationship capacity, of we- primary between the most two issues Wills, recognized, Page invalidity the contestants’ and what claim of the says “finally agreed upon” persuaded the 1960 has we are not Wills, By way Page general most information rec- substance courts. 12.21, ord pp. (1960), 606-608 states: discloses that at the time testator exe- (cid:127).§ years cuted the 1960 age. “* * * will he must have sufficient Testator His many years year wife of died in the strength mind and mem- clearness 1956 and children. The no wife 'ory, know, prompt- without general, - left surviving relatives to certain property ing, nature and extent bequests $1,000 whom the testator made dispose, and nature of which he is about to each; and, above, only legal as stated perform, (cid:127)of the act which he about nephew-con- heirs of the testator were the identity persons :and the names and testants, who were not mentioned in objects bounty, of his who By and who were disinherited. the will He his relation them. must .-and towards bequeathed proponent testator also memory '.have sufficient to un- mind acquaint- Emilio become who had facts, derstand all of these and to com- ed with the performed -prehend in their these elements relation many him, $5,000, services for the sum of toeach other, charge, negative and a purpose which testator said for the form, capacity lacking if testator *5 paying beneficiary’s off mortgage on the facts, is not able to know all of these Presbyterian home. The Church, First ^erroneous, capacity lacks if since he he which belonged n isunable testator’s wife con- and one to understand of them. lifetime, tributed during her was named as appreciate He must be able to rela- residuary legatee. ap- devisee and another, tions of these to one and factors praised value of testator’s estate was '(cid:127)to recollect he has the decision which $55,473, $40,000 sum of n .formed.” of which was as- signed properties to certain business It is also the in a will rule contest testator, orally writing in before and that upon the burden contestants to and after the execution had show a preponderance of the evidence expressed often an intention to leave to :the claimed incapacity unless contestants. ' develops previous incompetency that ;a sufficiently testator is admitted or shown. Incompetency Testimony of Faragher’s Estate, In re Wyo., 367 P.2d contestant, Robert testified J. 972, 976; Estate, re Lane’s only that he was the son testator’s brother rehearing denied 60 P.2d Salmon, Idaho; and lived in that testator 360; Wood, Wyo. Wood v. 164 P. used to visit but after them in Idaho 844, was witness didn’t “believe” testator In their categorized brief contestants have travel; “mentally and able to physically” ;the upon evidence rely as fol- that in his wife and his 1959 he and lows: Cheyenne, Wyo- brother in visited testator “(a) incompetency. Evidence ming; “slipping they could see was testator physically every forgetful and getting more (b) disposition Unusual of evidence as year,” “mostly physi- but difficulty his was basis of consideration. around; cal” in that tes- getting (c) involving appoint- Circumstances tator had written he to come to Ida- wanted guardian ment of a as a basis for summer ho so the witness came here jury consideration. able; after con- of 1963to see if he but (d) Evidence of other wills as evidence of the church and sulting with Dr. Pattison require jury sufficient to consider- McShane, physician, it Dr. testator’s ation.” able; decided and in their visits he was not forget with testator “he he want- seemed We shall substantially endeavor to follow pattern. that go.” ed to get- and cally, voiding public, “was called Emilio shape”; poor sanitary that he hos- 43(b), ting in party under Rule as an adverse April 20, at staying pitalized testator
W.R.C.P.,
that testator was
testified
good”;
“his mental condition was
became “sick”
that time
at his home
he
when
was a “condition
hospital
he
that arteriosclerosis
visited
was taken to
about,
system”
circulatory
and while
day.
cross he
every
aging
On
him there
brain,
always “happy” and
the results are variable
affects
that testator was
said
May
change”
“abnormal
1960 he
observed no
“alright” and in
he
his mind was
age”;
“for
his
con-
in testator
a man
change in testator’s mental
noticed no
belligerent
occasion testator would become
dition.
he
home but
go
because wanted to
at
the Pioneer
Melvin
owner of
Condron,
cooperative
very
he
gave
times
Hotel
from the fall of
where testator lived
“just
no trouble and
a normal aging
this was
tes-
April
1958 to
testified
when
process”;
April
that between
and October
always neat and
tator
he was
moved there
1960 there was some noticeable deteriora-
began
change
careful of his
but this
dress
tion in testator’s mental condition
not
out
go
he
the fall of
would
change,
reported
a sudden
and it
pants
come
his
soiled
back with
to him
nurses
testator was
it;
public
and did not realize
voiding
writing
promiscuously
checks
and without
pants
witness would send
apparent reason and “I felt he was
able
not
objected
cleaners but
that “some-
physically
affairs,
to take care of his
I
body
them;
he
been a
will steal”
might
felt
using
judg-
he
not be
the best
good
completely
player but
lost
checker
;
arranged
ment”
Reyn-
he
with M. S.
ability;
“just
that he
troubled
was.
*6
olds,
attorney
and the scrivener of the
money”
whether
forget
and
about
would
guardian appointed
1960
to have a
paid
easy
he had
his rent and was an
mark
testator —to which further
reference will
on one or
two occasions to
wiles of un-
be made —and that
primary
he
scrupulous persons;
phys-
that testator was
peti-
source
stated
information
in the
ically unable
to climb stairs unassisted
;
tion and
physical
that one of the
character-
reason;
during
moved for that
this
that
creating
istics of aging
usually instability
is
period
undergone
complete
testator had
balance,
some hazard with
“and the char-
change
personality, “physically
and for-
acteristic
aging
usually
of mental
mani-
getfulness both.” On cross
witness
fested
upsets
poor judg-
emotional
stated the
testator
a “wonderful busi-
ment.” On cross the doctor testified that
last;
ness man and keen man”
up testator’s mental condition at the
he
time
that
property
he
except
knew what
he owned
hospital
normal”;
entered the
fairly
“was
he was mistaken about another business
patients
though
even
giving some in-
property
previously
which he had
deeded
may yet
dication of senility
have “ordi-
brother;
January
his wife’s
that about
narily good judgment
ability
to handle
1960 the witness became concerned over
their affairs,
go
along through life
physical
testator’s
condition
his
but
mind
pretty well”; and
gave
opinion
he
it as his
was still operating alright;
up
and that
that testator could
make
dis-
until that time
testator
maintained him-
position of his property May 12,
1960.
self very well, although “I am sure he lost
On redirect the doctor
he did
said
not think
grasp money
[his]
fall.”
any change
there was
in testator’s testamen-
Dr. K. McShane,
L.
family phy-
testator’s
tary capacity from the time he entered the
sician since 1946, said
taking
testator was
hospital until
discharge,
his
which was on
some medication for diabetes and arterio-
1, 1961.
June
year
sclerosis
1959;
in the
spring of 1960 testator
taking
was not
Jensen,
his
manager
Walter
Cheyenne
taking
medicine or
physi-
care of
Bureau,
himself
Credit
the tenant of one of testa-
fragmentary
properties,
indefinite,
tor’s business
testified that he
and in our
1927;
opinion
apprise
known
testator since
were insufficient
January
just
since
trial court
portions
1958 he had seen him almost
what
n daily;
general
attempting
that testator’s
was were
condition
to offer.
contest-
n good
argue
ruling
in 1958 but there
deterio-
ants claim and
here that
was some
such
early
prejudicial error,
physical
ration in his
condition and
not think
do
so.
deal”;
good
1960 testator “had failed a
support
arguments
of their
con
past
wasn’t as alert as he had been in the
well-recognized
testants advance the
rule
you
day
.and “would tell
one
one
thing
hospital
records when
relevant to
day
probably
you
the next
would
tell
he
generally
issues of a case are
admissible
n something
else”;
contrary
that he
be
would
under the Uniform Business Records as
n one
day
“very
good
and in a
mood” the
inclusive,
1-173,
Evidence
1-170 to
§§
Act —
next;
having
that testator was
with
trouble
proper
W.S.1957 — after a
foundation has
“bodily
keep
his
functions” and would not
Lewis, Alaska,
been laid. Zerbinos v.
clean;
April May
himself
and that
889;
886,
Weis,
P.2d
v.Weis
147 Ohio St.
orthe
early part
asked him
testator
416,
668;
72 N.E.2d
169 A.L.R.
attorney,
about contacting an
other than
Mayor
Dowsett,
196,
400 P.2d
Or.
Reynolds, to draft a
cross-
will for him. On
247;
234,
Liddington,
Young v.
50 Wash.2d
examination
period
during
he said that
78,
765;
Joseph
309 P.2d
H.
v. W.
acquaintance
his
(cid:127)of
he
testator
Day
Hospital,
Groves Latter
Saints
7 Utah
quite
attentive to business and
conscious
330, 332-333;
2d
2d
10 Utah
account,
income,
money.
his bank
and his
Evidence
§
C.J.S.
'The witness reiterated that
testator had
(b) p.
quarrel
1033. We have no
with that
forgetful
become
but that was of “minor
rule
not mean that all the
does
importance”
when testator was taken to
ipso
material contained therein
ad
facto
hospital
general physical
because of his
acts,
missible.
relate to
The entries must
(cid:127)condition;
seemed to
under-
be
occurrences,
diag
or events relevant to the
going
gradual
process
aging
that could
patient’s
nosis and treatment of a
condition.
expected
age;
of a man of his
and that
See
above and 32
Evi
authorities
C.J.S.
nothing
he noticed
of a serious nature about
728(c), pp.
dence
condition, although
testator’s mental
he had
*7
(cid:127)slipped
“physically
mentally”
proper
a lot
Here we
a
foundation
be-
think
laid,
May
keeping
foregoing
tween the
he
was
and in
with the
time
first
him and
knew
12,
gone
we have
to
trouble to search
some
Undoubtedly
through
there
such record.
testimony
foregoing
addition to the
which,
properly
were
had
entries
it seems advisable here to make reference
tendered,
For
have been admitted.
should
documentary
to some
evidence.
con-
1960,
April 23,
example,
entry
made
on
testants offered in evidence bound
a
volume by
nurse, reported
that testator was bel
hospital
of the
record of testator’s treat-
ligerent;
wanting
go
clothes on
to
his
period April 20,
ment there
for
home;
hospital
threatened to
sue
1,1961,
pages.
consisting
nurse;
to
of
some
attendants;
threatened to kill the
purpose
It
showing
very profane;
day
was offered for the
and a
or so later
of
was
general
also
history
course and
of the in-
call the
There were
police.
tried to
firmity
days
testator
and treatment of the testator. The
entries in the first few
courtsustained an
“confused,”
objection
“lethargic,”
exhibit
and was
onthe
However,
incompetent
ground that was
be
“weaker and more malaise.”
through
Thereupon
May
running
ginning
immaterial.
the contestants
on
May
proof
undertook to make offers
certain
the critical time
1960—there
of
of
here —
alert,”
portions
record,
say
were entries that testator was “more
to
least
days
nature,
clearly,”
good
general
“talking
such offers were
more
were was
complaints,”
nights,
voiced “no
Unnatural Will
in the halls.
It also re-
up walking
purposes
For
we
com-
of discussion
will
Dr.
cords visitations
McShane
points
bine the
contestants’
of
claimed
day
day
before and the
after the execution
disposition
unusual
of the 1960 will and
the will.
we will take these mat-
of
wills,
evidence
of other
obvious
here,
purposes
ters into consideration
reasons we confine
will.
we do not hold that the court erred in ex-
exception
The 1957 will with one
made
cluding the exhibit which was offered as
bequests to the same relatives of testator’s
a whole and
a vast amount
which contained
deceased wife
as did
1960 will.
It also
of immaterial and cumulative matter.
It
Morton,,
bequest
made the same
to Florence
separate
job
was not the
the trial court to
bequest
mother of
and this
the wheat
the chaff.
was deleted in the 1960
which no doubt
explained by
can be
the fact
that Mrs.
handwriting
Certain
letters
hospital
Morton was then in the
afflicted!
the testator —the first of which was written
with cancer.
It
February
also devised the business-
which it could
1961—from
properties
which,
nephews
be
forgotten
inferred that
testator had
seen, was also deleted from
will.
the 1960
terms of his
in evidence.
also
Both wills named the
church as
Keeping in mind that
fur
some
residuary
legatee.
devisee and
The claim
ther reference to the
will be made
evidence
change
contestants is directed at the
below,
separate headings
under
disposition
properties.
business
foregoing
pres
think the
constitutes a fair
On the basis of the
will and the
entation from a voluminous
record of
above,
declarations of the testator mentioned
evidence
and with
apparently
considered under
one
them
made
near the time
according
heading
analysis
1960 will
being
here
Our
discussed.
agree
we will
that a consistent
is,
testimony
particularly
of it
when the
purpose
on the
of testator to leave the
is scrutinized
contestants’ witnesses
properties
business
to the contestants was
cross-examination,
in keeping with their
only explanation
indicated. The
offered
that at best it
more than
tends
show no
by proponents
Reynolds’'
for the deletion was
condition,
poor physical
testator was
testimony that
testator
in the conference
forgetful, untidy
and unclean about
preceding
drafting
of the 1960 will1
person,
past, contrary
not as alert as in the
had said that the
enough
“had
occasion, suspicious,
belligerent
and he
going
wasn’t
to leave them
difficulty
encountered
minor
some
more.” The record also discloses that
matters,
money
general
and in
under
friendly
was on
terms with con
going
gradual aging process
keeping
testants but at the same time their visits-
matters, collectively
age.
with his
Such
infrequent
were
really
and there was no
*8
more,
or alone and without
do not establish
close association between them.
incompetency
make a
In
mental
will.
Estate,
444,
Wyo.
re Nelson’s
266 P.2d
72
subject
The
matter here has been
238, 244;
Estate, Fla.,
In
66
fully
re Wilmott’s
rather
previous
discussed in
cases
1399;
465, 467,
So.2d
A.L.R.2d
In re
Estate,
40
of this court.
In re
80
Merrill’s
Estate,
72,
Wyo. 276,
506,
Heazle’s
74 Idaho
257 P.2d
509;
341 P.2d
In re Nelson’s
556, 558;
Ky. 812,
Tye
Tye,
Estate,
246;
supra,
v.
312
229
In
266 P.2d at
re
Schmitt,
975;
973,
Estate,
332,
S.W.2d
Wyo.
McGrail v.
181
63
Johnston’s
Mo.,
1;
Roelofsz,
611, 615-616;
357
A.L.R.3d
S.W.2d
9
v.
Branson
Estate,
226,
Phillip’s
101,
re
589,
15
112 52
Wis.2d
70 P.2d
595. From those
591, 595;
Wills,
12.27,
unnatural,
N.W.2d
Page
1
on
cases it is clear that an
unreason-
§
pp.
able,
(1960).
627-629
unjust disposition
of a testator’s
circumstance, together
Incompetent.
property
writing
is a
That he is
checks
circumstances,
that must he con
in large
everybody
amounts to
and is
testamentary-
question
the
unable to take care
the
sidered on
small amount
capacity. Support
rents,
furnished
has,
therein is also
business he
to receive
here
argument
pay
the will
for contestants’
bills.”
contrary to
in that it
was unnatural
accept
argument
While we
the
Nevertheless,
expressed
testator’s
views.
proffered
documentary evidence should
question.
Con
we need not decide
not have been excluded under the circum
fact, standing
that such
testants concede
present
stances here
on
basis
alone,
establish testamen
is insufficient to
objection made, we think it was cumulative
Estate,
Doty’s
tary incapacity, citing In re
ruling
prejudicial
therefore
was not
823;
747,
In re
Cal.App.2d
201 P.2d
Furthermore,
petition
error.
its
306,
Estate,
66 P.2d
104 Mont.
Cissel’s
testimony
face
and the
disclose that
105,
Collins,
Collins
110 Ohio St.
v.
proceedings
primarily
man
related
Wills,
; Page
561,
N.E.
tator mental the evidence shown in the record comprehend pertaining basic elements es- competency or incom- making petency sential of the 1960 will A. Robert at the time previously May 12, been admitted and which his will dated executed. judge probate. record, the trial hold that On the basis of the GRAY Justice properly determined that contestants prima has concluded a facie case incom- tried and petency not met their burden on the issue was not made out contest- directing ants, did err in thus not a verdict on and that a directed verdict for the phase proponents of the contest. proper. of the will was record, On the basis of the I think same However, holding that a view of our prima incompetency facie case of partial granted new trial must be out; incompetency made that the issue of relating issues to revocation of the 1960 jury; should have been submitted to the judgment will be modified with that a directed verdict should not reopen directions to the case further granted against the contestants. proceedings in opinion. accordance with this I concur in the conclusion that this case In all respects judgment is af- should be remanded to the district court firmed. partial for a new on the issue of rev- Judgment affirmed as modified. the May ocation of 1960 will.