212 P. 1040 | Nev. | 1923
This was a contest of the will of Denis Hegarty, deceased, prior to probate. The grounds of the contest were the mental incapacity of the deceased to execute a will and the alleged undue influence upon the mind of the testator by Catherine Coleman, a sister and the sole beneficiary of the testator’s bounty. The contest
This appeal is taken from an order denying contestants’ motion made for a new trial, on the grounds that the court’s decision was contrary to the evidence and is against law. We observe from the brief of counsel that the issue raised by the contestants as to the testator’s mental incapacity to execute a will is not insisted upon on this appeal, thus narrowing the issue to that of the alleged undue influence exercised upon the mind of the testator by Catherine Coleman, who is the beneficiary, executrix, and proponent of the will for probate.
Denis Hegarty, a bachelor, 62 years of age, a native of Ireland, came to the United States more than thirty years ago and located at Reno, where, through frugal industry, he acquired property in Reno and Sparks, Nevada, consisting of real and personal property of the estimated value of $24,000 at the time of his death, which occurred at the Franklin Hospital, in San Francisco, on the 21st day of January, 1920. His will was duly and legally executed on the 15th day of January, 1920, while he was a patient in that institution. The second clause of the instrument reads:
“I devise and bequeath to Catherine Coleman, my sister, all my property both real and personal, mixed and wheresoever located.”
The last clause of the instrument reads:
“I hereby nominate and appoint Catherine Coleman the executrix of this last will and testament, to serve without any bond being required of her, and hereby revoke all former wills by me made.”
The testator left surviving three brothers and four sisters, including said Catherine Coleman. The testator’s relations with his brothers and sisters were at all times friendly and affectionate. His sister, Catherine Coleman, had once lived for a few months in Reno, but for the past twenty-one years had resided in San Francisco. She occasionally visited the deceased in Reno,
In the case of Abel v. Hitt, 30 Nev. 93, 93 Pac. 227, the will of the testatrix was invalidated on the ground that the evidence was sufficient to show that the testatrix was mentally incompetent to execute a will, and that the testatrix, in making her will, acted under undue influence. While the court in that case did not attempt or pretend to lay down any rule as to what in
In this case it is conceded, or must be conceded, that there is no direct evidence of undue influence, and no evidence at all of such, other than the inferences to be drawn from the following facts: First, the opportunity for its exercise; secondly, that the instrument makes the proponent of the will the sole beneficiary of the testator’s bounty; and, third, that the will is unnatural.
As to the first proposition, it is well settled that mere possession of influence and the opportunity and motive to exercise it are not sufficient; it must appear, either directly or by justifiable inference from the facts proved, that the influence was exercised so as to destroy the free agency of the testator and control the disposition of the property under the will. In Re Purcell’s Estate, 164 Cal. 300, 128 Pac. 932; Comm. on Wills, Alexander, sec. 593.
As to the second proposition, it is equally well settled that, unless the influence of the beneficiary be unduly exercised, it is- not material that the beneficiary was interested in the will, or had better opportunity for solicitation or persuasion than the contestants. Comm, on Wills, Alexander, sec. 593, and authorities collated in note. Upon these authorities, read in connection with the particular facts in this case, we are of the opinion that the inferences to be drawn from the opportunity for exercising undue influence on the part of the beneficiary, and the circumstances that the will made Catherine Coleman the sole beneficiary of the testator’s bounty, are wholly insufficient to support the charge of undue influence.
The third proposition, that the will is unnatural,- is worthy of fuller discussion. There are cases holding that an unequal or unnatural disposition of an estate does not create a presumption of undue influence.
In the present case it appears that, in the course of the preparation of the will, the testator, in reply to a question propounded by its drafter, stated that he had other relatives in Ireland. He was then asked, “What do you want to do with the relatives in Ireland?” His reply was, “To hell with the relatives in Ireland.” Prior to the execution of the will, the testator was on friendly and affectionate terms with his surviving brothers and sisters in Ireland, and it must be conceded that the sudden change of his mental attitude toward them stands in the record unexplained.
But the will cannot be impeached because the disposition of the property appears to us to be unreasonable, or the sudden change of the testator’s feelings toward his relatives unaccountable. If the evidence in any case, when viewed from a standpoint most favorable to the contestants, does not show undue influence as defined by law, the will is not to be invalidated merely because of suspicion, or because it does not conform to ideas of propriety. In Re Lavinburg’s Estate, 161 Cal. 536, 119 Pac. 915; In Re Kilborn’s Estate, 162 Cal. 4, 120 Pac. 762. The evidence discloses that at the time he made his will the testator was possessed of vigorous intellect. Being ’ capable and without restraint, it was his privilege to give or to withhold his bounty, as he might elect.
It is argued that the influence resulting from Mrs. Coleman’s kindnesses and attentions, taken in connection with her relationship, poisoned the mind of the
As the evidence in this case fails to establish undue influence, as defined by law, we are impelled to affirm the order denying and overruling the contestant’s motion for a new trial.
It is so ordered.