*1 gеner injured herself. The court held that entering a mere when
ally speaking licensee In the of the Matter ESTATE of premises whatever there assumes risk Alfred B. WATERS. premises. may be in the condition of WATERS, Appellant (Proponent), Valda Brown, In Hamilton v. 157 W.Va. v. (1974), plaintiff took a shortcut S.E.2d HOLKAN, al., Appellees Janet C. et on a over path property defendant’s (Contestants). stream a foot led him across a small via bridge. crossing footbridge, con No. 5429. gave way causing crete fall in slab him to Supreme Wyoming. Court injured. the stream and be The owner nev permission anyone er to use the June though path bridge, it apparently in common use. The court held: “ permissive premises, by ‘Mere use
express implied authority ordinarily only
creates a license.’ As to [Citation.] licensee, impose upon law does not obligation
the owner of an against dangers
provide which arise out existing premises condition of the goes as
inasmuch the licensee subject all
premises dangers at-
tending (Cita- entry. [Citations.]” original.)
tions omitted in
Appellant Mrs. Yalowizer was a
trespasser and at the most a licensee and
not entitled to as relief a matter of law undisputed
under the facts of this case.
Summary judgment appellee for prop
er. the light disposition, of our there appearing to be no wilful and wanton con 6 by appellee,
duct we do not consider
questions presented.
Affirmed. meaning 6. The usual consequences of wilful amounting and wanton mis ence to a will intentionally ingness conduct that the actor has done shall follow. Prosser Torts of an (4th 1971), 34, act p. unreasonable character in disre Ed. Wilful and wanton gard a risk known him negligence or so obvious that conduct not in the strict sense intent, great must have been aware it and so it since involves not inadvertence. Dan Brown, to make obvious that harm would follow. It culovich usually accompanied by a conscious indiffer *2 Was
1. the evidence sufficient to sustain jury’s verdict the testator duress, mеnace, fraud, acted under undue influence.
2. Were court’s instructions the trial complete. correct and 20, Alfred Waters was married on March 1935, mother, to the appellees’ Evelyn. Evelyn Alfred and Waters were divorced in 1940, year in but that same Evelyn Waters family returned to the home where together lived until June 1965. marriage by A second Alfred Waters took 1965, place in which resulted in divorce in time, By drinking 1969. this had become a problem for Mr. Waters and was first no- Holkan, daughter, ticed his Janet in 1961.
Alfred Waters married a third time in in By 1970 and was divorced drinking major time had become a problem hospitalization for Mr. Waters and was re- quired on numerous occasions. Between Sharratt, Wheatland, Bryan Sue 1969 and the his time of death on October Davidson, Cheyenne, Urbigkit & White- 15, 1978, drinking problem Watеr’s had be- head, C., signed brief appellant. P. serious, possibly come even the cause appeared oral argument Mr. in for Sharratt death. appellant. When Alfred Waters was committed to Fagan Fagan, James W. Fagan & Wyoming Hospital February State in Clapp, Casper, signed ap- the brief and 1974, Holkan, daughter, ap- Janet his was peared oral argument appellees. in for pointed guardian of his estate. Upon his ROSE, J., RAPER, Before C. THOMAS August release in medical records ROONEY, JJ., BROWN, D. J.* indicated that Mr. Waters were to contin- drinking, recover, ue his chances be- BROWN, Justice. functional, life, to manage come decedent, Appellant, widow of offered Waters, however, very poor. were re- Mr. probate. Ap- the will Alfred for Waters drinking day sumed he was released pellees, decedent’s daughters, contested hospital. from the contending the testator did acquainted Mr. Waters became possess testamentary capacity at the time pellant, he Valda Waters June 1975 when he acting executed the will and was duress, menace, under influ- going fraud or undue to the Mental Health Center against ence. The appellees Wheatland, found Wyoming. November testamentary the issue of but capacity, began proceedings Mr. Waters to terminate found that under acting testator guardianship. Valda was an Waters menace, duress, fraud or undue influence at and, participant active paid fact for a the time executed the will. We affirm. major part of expenses prоceed- appeal ings are: guardianship. issues to terminate the Mr. Judge argument. oral District time of Justice court, 26, of this effective March hospitalized January Waters was inferred.” Cited with approval in In re just prior hearing for terminating Merrill’s Wyo.
the guardianship so that he would be “dried
out” before the hearing.
Additionally,
Am.Jur.2d,
in 79
*3
Appellant
proponent
will,
of the
Val-
614,
p.
proof
the
necessary
burden of
for a
Waters,
Waters,
da
married Alfred B.
finding of undue influence has been set
4, 1976,
February
about a week after the
forth as follows:
guardianship.
termination of the
March
On
“Direct evidence is not essential
to the
18, 1976,
later,
about six weeks
Alfred
proof of fraud or undue influence invali
signed
will, leaving
Waters
his
all
his
will,
dating a
and a
ground
contest on the
disinheriting
to his wife and
of fraud or undue influence may be
daughters.
two
weighed successfully on circumstantial
evidence, the contestant being entitled to
Sufficiency of the Evidence
the benefit of all inferences
may
Appellant challenges the sufficiency
be reasonably
legitimately
derived
jury’s finding
of the
of undue influence in
* *
n .”
from established facts.
respects: 1)
three
the verdict is inconsistent
“ * * * A combination of weakened men-
trial;
presented
2)
with the evidence
at
the
tality and
bequests
unnatural
will war-
verdict
supported by
the evidence
rant the submission of the issue of undue
trial;
presented
3)
the verdict
* *
influence
jury.
to the
*.” 79 Am.
contrary
great
to the
weight of the evi
Jur.2d, Wills, 487, p. 619.
§
agree.
dence. We cannot
“The
proof
burden of
on the issue of
The standard of review
considering
when
influence,
undue
which burden most
question
the
of the sufficiency of the evi-
say
contestant,
courts
upon
rests
the
support
jury
dence to
a
verdict is well es-
carried,
general,
by preponderance
tablished.
begin by
We must
assuming
”**
the
Am.Jur.2d,
evidence.
79
that the evidence supporting the prevailing
Wills, 480, p. 614.
§
party is true leaving out of consideration
conflicting
evidence. This evidence
“Most of the
support
authorities
the view
must
given
also be
every favorable infer-
that a presumption of undue influence
ence that may
fairly
be
drawn. Further-
arises upon showing
that one who drew
more, we do not evaluate the evidence but
will,
or was otherwise active directly
rather determine if there was substantial
in preparing
execution,
it or procuring its
could hаve
obtains under the will a substantial bene-
Booth,
based its decision. Brittain v.
Wyo.,
fit, to which he has no
claim,
natural
or a
that Mr. Waters was from the Instructions alcohol; ravages of he was confused and in a Appellant contends the trial condition, been weakened and had in that court give erred when it refused to her prior condition timе some execution offered instruction Number This 4.1 in Appellant of the will. furnished the testa- required struction convincing clear and evi live, place provided tor with a for some dence support a finding of undue influ expenses living of his other finan- ence. again Once we cannot agree. Appellant cial also assistance. furnished This Court previously has determined the with though decedent alcohol even she quantum proof necessary of will in contest dangers knew of the if Mr. involved Waters cases. The proof burden of addition, continued to consume alcohol. by preponderance contestant show a of throughout period, this Mr. Waters contin- the evidence testator was so influ- require frequent ued to hospitalization. enсed not others a free The jury heard testimony considerable agent making Wood, the will. v. Wood respect to Mr. Water’s lack of testa- Wyo. 26, 25 (1917). P. 844 however, mentary capacity. jury, The A proof higher standard prepon- of than testimony think this sufficient to find derance of required the evidence is not of a that Mr. lacked testamentary capac- Waters every deed or will contestant for claim the ity. jury, nevertheless, properly could contestant makes. Once certain circum- testimony consider as it insofar showed established, stances are the contestant is no mentality, weakened thus rendered longer saddled with a “clear proof” stan- susceptible testator to undue influence. 79 remaining Brug Case, dard under issues. v. Am.Jur.2d, Wills, 480, p. supra. (1979). P.2d The attоrney prepared testator’s Case, In Brug supra, will this court af- appellant, was first contacted firmed the court’s Valda lower decision favor of Appellant accompanied Waters. also Mr. Waters to the office contestant. at bar the attorney’s to have case the will surrounding drawn. circumstances Apparently attorney the execution of who drew the the will will never talked to Mr. were such that the contestants were, except appellant. case, Waters presence as we Brug said “No therefore, It would longer be fair to say, that the proof’ saddled with ‘clear standard testator dependent was completely simple under remaining prepon- issues.” A Instruction No. 4: 1. convincing “What is meant clear аnd evi- degree proof your dence is that which in convincing “Clear and of undue in- required mind a firm belief creates or conviction.” fluence is to set aside the Will of Alfred B. Waters. of the evidence is sufficient for the Counsel derance for contestee assumes finding influence. of undue merely requested because a instruc tion is correct as an abstract proposition further said:
We it prejudicial give law it. “*** proof clear of sus there [O]nee That is not the law. The court * * * [Citation.] circumstances, simple pre picious should, course, instruct the jury on the support a of the evidence ponderance applicable basic fundamental rules finding of undue influence. [Citations.]” issue, particularly requested facts in Case, supra, p. Brаg v. do so. requests But for in [Citation.] go beyond point structions which preponderance A of the evidence under footing. stand a different supports finding Unless the the circumstances properly comply refusal to prejudicial undue influence and the trial court therewith is give appellant’s refused to Instruction rights affects the substantial complaining party, it cannot be held to be Appellant further contends that ” * * * reversible error. Branson v. judge was error for the trial to refuse to Roelofz, Wyo. give proposed l,2 2,3 her Instructions and 3.4 This previously court has held that it is not give error to refuse party’s offered Review of Instructions and 11 that legally instructions that are correct if these *5 given by were the trial court shows that legal principles adequately by covered appellant’s 1, 2, offered Instructions and 3 given by instructions were adequately were covered. Instruction No. 7 court. As this Court stated in Jeffers v. provided: Offe, 450, Wyo., (1979): 598 P.2d 451 “You are person instructed that a pos- “ * * * well-recognized is a rule of [I]t sessing requisites of testamentary ca- law that no reversible error is committed pacity executing at the time of his Will is by a give court’s refusal to an instruction incapacitated not making by from a Will legally even where it appli correct and illness, age old although these are case, cable to the issues in the where proper matters or factors to be considered given embody other instructions substan determining whether testamentary ca- tially the propositions requested same pacity guard jealous- existed. The courts in the refused instruction. [Citations.]” ly right persons of all of sound and think that the court was [W]e disposing mind and memory to make justified in rejecting the instructions Wills. includes right change This to since the matters with which dealt by making the Will new Wills at time adequately were by covered other in time, and from time to and the last Will * * structions. It is well settled that a by any person made which revokes all party is not prejudiced by refusal of in former possessing made while structions by when the matter is covered testamentary capacity, is the Will which given. ones which are Za [Citations.]” is valid.” Lines, netti Logan, Bus Inc. v. Wyo., 400 482, (1965).
P.2d
provided:
Instruction No. 11
Instruction No. 1:
doing
undue influence which will warrant
so
proven
destroys
must be
party
to be
“It is not
such as
sufficient
to show that a
agency
thereby
by
free
оp-
benefited
substitutes
the will
Will had the motive and
portunity
influence,
to
of another
for that of
exert undue
but there
the Testator.”
must be evidence that she did exert it and did
4.Instruction
No. 3:
Testator,
so control
the actions of the
really
the instrument
is not
the will of the
showing
susceptibility
“The mere
to undue
Testator.”
Will,
influence is not sufficient to invalidate a
susceptibility
but such
must be connected
Instruction No. 2:
with evidence with actual undue influence
deliberately
by persons
“Wills
made
of sound
exercised
the Testator.”
aside,
lightly
mind are not to be
set
and the
improperly
that a Will
ence was
brought
“You are instructed
bear upon
606(b),
by
any juror.”
procured
undue influence
not
Rule
W.R.E.5
probate.
admitted to
Affirmed.
con-
“Undue influence consists
acts or
duct
which the mind of the testatоr is
ROONEY, Justice, dissenting.
person.
overcome
the will
another
This will may have been executed while
influence,
general
brought
“Mere
the testator
undue
was under
influence of
act,
testamentary
un-
bear on
Is not
(hereinafter
appellant
wife),
referred to as
un-
due influence.
In order to constitute
but the
evidence of
undue influence
influence,
directly
be used
due
must
does not exist in the record. Accordingly, I
procure the Will.
must amount
It
unwilling
am
previ-
to reverse the standard
destroying
agency
free
coercion
ously
set
in previous holdings
this court
testator, substituting for his own another
found,
law,
as a
often
matter of
person’s
compelling
the testator
undue influence did
exist in situations
disposition
would
to make
not other-
in which the
thereof
far
more
wise havе made.”
persuasive
than exists
this case.
adequately explained
Estate,
These instructions
Wyo.,
(1964),
Wilson’s
P.2d 805
cert,
law;
therefore,
applicable
trial
Wyoming
denied on reh. from
399 P.2d
judge
refusing
give appel-
did not err in
(1965);
In
Estate
Carey, Wyo.,
re
lant’s offered instructions.
(1972);
Estate,
1. Wife testified: “A. 1 loved him. happened get What if he didn’t help “Q. *7 everything to I I tried him. I did drink? keep drinking, to could think of stop him from to * * * expect “A. I don’t know. I he would shake him. I worked him. with cramps everyone ****** and have and stuff like else they something does if to don’t have drink. Waters, having Mrs. Brownie was whеn “Q. drink, you “I don’t see. I don’t know what problems that we have alcoholism you through. go here, you talked about occasions did on some wondering 1 am the effect was “Q. what you great that his need feel was so that belligerent him. Would he and diffi- bring become request- him needed to alcohol cult to handle? you buy bring ed to or him? yet Yes, drinking person “A. I have never bought seen a “A. I him alcohol. belligerent get you who isn’t when don’t it. And I take it that felt that this “Q. goes? he an Would tend to become irascible and almost act kindness as far as that “Q. No, you try stop him “A. it wasn’t. he would need a difficult would from When drink, cussed, badly, drinking? he would feel but I cried, bawled, stompted, way and I and I I He could “A. be that whether he was good. not, drinking people and it done no He still had [sic] do.” or other a lot of havе a drink no I do. All matter what could was, predeceased tender-loving subscribing 2. I The third witness the keep care there couldn’t drinking. him from testator-husband. you experienced So in effect about “Q. thing family same experienced, his had members of you? didn’t that for There is no evidence whatsoever at unusual her to accompany him to the place time and the will was executed lawyer’s keeps office when he the appoint- testator-husband was under the influence ment. This is not a case in intoxicants, he drinking, had been or is testator directed to the lawyer of the drinking his habits entered into the beneficiary by beneficiary, as was In re disposition property made Estate of Carey, supra. It is not even Rather, manner or fashion. the evidence beneficiary case where the and testator se- directly contrary. the lawyer listings lected from in the tele- phone directory, Draper’s as was re Es-
2. The wife provided testator-husband tate, Rather, supra.3 lawyer place with a to live and him drew financial inwill case legal assistance. It is difficult this had done some understand can work majority previous how refer to evi- for testator-husband on occa- being as dence of nature an exercise of sions. He concerning testified as follows something It undue influence. is one past relationship his with testator-husband: spouse normally spouse. does for the other “Q. you explain And could how you majority opinion quotations contains came know him and approximately from 79 Am.Jur.2d 437 and §§ when? 487 which hаve reference to consideration Well, friend, “A. he was an old-time he bequests of unnatural or devises in wills. father, and his of my family. suppose I I Any suggestion bequests or devises to customer, met him in the bank as a bank unnatural, wife in this will unreason- friend, sometime. I think I had known unjust entirely misplaced. able or Testa- least, him as I back say, years look appellant’s tor was If husband. there ago then, from now. I am sure before inference of undue influence from the mere too, but at least disposition fact of property one’s to his “Q. And after you that time in did wife, will are certainly going contests have opportunities also or occasions when multiply. spouse forego Must a providing you any legal work for him? his or place together her mate with a to live Yes, “A. I did. with financial assistance to avoid the “Q. And generally what was the nature charge of undue when influence the mate legal work? disposes of her Well, “[A], might I think there have spouse by will? things, been some minor but about required frequent Testator-husband represented approximately, I him in hospitalization. Again, the manner Glendo, the sale of his ranch at and at any bearing this fact has on undue represented approximately 1972 I him in compre- influence wife difficult the sale of some lots owned the Glendo pertinent hend. This fact could be to com- Company Dam Development in Glendo.” instances, but, petency already in some He attorney testified that also was for noted, found testator-husband to previous of wife’s husband and competent. Again, forego must оne fre- esfate believed she was executrix of that estate. hospitalization quent of his or her spouse to *8 charge avoid of undue influence when He that testified testator-husband spouse disposes such or her property his concerning disposition directions of his spouse by to will? property: “Q. you And with him discuss appointment The wife made the with time, Brownie, with the terms that lawyer up to draw will of testator- he was you would want in this will that husband, accompanied and she him to the going prepare? were to lawyer’s purpose. office for It is not appointment Yes, unusual for a to make an wife “A. I him what he in asked wanted lawyer husband, with a for her and it is not his will.
3. Undue influence was not found in either of these two cases.
“Q.
expressed
And what was it that he
for summary judgment,
affidavits,
you?
testimony or other evidence tending to
specific
show
leaving
“A. He wanted a will drawn
his
facts relative to actions on
part
property to his wife.
of Redle which would constitute
undue influence —or from which undue
“Q.
give
any
right,
you
All
and did
influence could be inferred —but even
express directions as far as his two natu-
now
suggestion
there is no
daughters?
anything
ral
which Redle did toward the testatrix
trying
“A.
In the conversation —I am
which would constitute evidence that he
precise
looking
years
in
back four
did in
fact exert undue influence
ago
made it clear to me that he
—he
(Emphasis
original.)
testatrix.”
wife,
In re
property
wanted the
left to his
Estate, supra,
Wilson’s
anship competent has been held to be from word Mr. Waters and Brownie proceeding in a as determine the him, everybody called will, wanted showing of a a me validity him, to draw a will for I had no pointment guardian doubts in of a does make not my own mind as to the prima out a facie clearheadedness incompetency, case of capacity, and mental but I presumptions of nevertheless insanity, raises no and knew that he had been in Evanston has often been held to be entitled little before, long too so I went Wills, over to call weight. ed., or Page no See picked Dr. 805; Allison. I Dr. ed., 70; Allison. I real- Thompson on § ly thought at the he time was the family generally and see 94 C.J.S. Wills §§ physician 64; of the Waters. To the best of 57 AmJur. Wills §§ “ ‘ ** * my knowledge still that’s true. So to having guardian An order my confirm own no had doubts appointed not necessarily would be in- —I opinion, on my but nevertheless under the testamentary capacity consistent with Allison, I circumstances to Dr. talked guardianship only because indicate why then I Waters, after met with Mr. inability manage property or ’* * * course, Dr. Allison was selected as a wit- business affairs. 36 Tex.L. ness to the will.” Rev. He testified had talked to Dr. Alli- “Most of the cases to which reference is son drafting before the will: made in these are authorities limited they provide “Q. assistance since re- Do you remember what the nature dealing late to cases with wards who ad- of the conversation was? difficulties, have had mittedly mental I paraphrase “A. would have my having sometimes been be found to in- Allison, own words. I went to see Dr. cases, sane. Even in such courts have going indicated to him that I was to draw very adjudi- been to say careful that the or going to be asked to draw a will cation a guardianship insanity mat- you for Brownie Waters and remember ter is not one which can carried over things important. are I went ahead into finding validity as to the of a and said as far as I can see he has no ” ** will. problem. is okay, In think he but I real- Carey, supra. See Estate of ago, ize he was in Evanston month you family I think physician, potential The problem guardian- from the I appreciate your opinion would as to ship recognized by was testator-husband’s you opin- what think of Brownie attorney. He testified: properly ion to write that will. “Q. And who selected the witnesses that “Q. And you get indication from perform were to that function that day? Dr. Allison that hе capacity in a Well, “A. I certainly suggested to execute his will? Brownie when might he asked me who just “A. Dr. I Allison seemed to feel as witnesses, good suggested I both Mr. Isa- opinion, say did. All I can in his bell and Dr. Allison. actually picked He mine, problem. there was witnesses, no I suggested but them. doing, Brownie knew what he was and he “Q. your And what were reasons for problem see writing could no about selecting those particular witnesses? will.” “A. Mr. Isabell was a friend of Mr. mine,
Waters as well aas friend of majority opinion emphasizes busi- that its ness associate of mine. He holding had dealt on all based four evidentia- *10 480 But, skimpy togeth- in it. taken facts relied in this case for
ry items set forth
er,
sufficient as a
purpose
applying
proposition
I
are not
of
believe
undue influence.
matter of lаw to establish
suffice.
“
furnishing
place
of a
to live
Certainly, the
‘It
true that all evidence favorable to
to a
financial assistance
husband
and
motion
party
adverse to the
must be
hospitalization cannot add
requires frequent
regarded by
disposition
the court in the
weight
in favor of undue influence.
much
thereof and also all reasonable inferences
weigh
these items should
anything,
If
may
be deduced therefrom. Bat
Calling
lawyer
a
for an
the other side.
the inferences must be reasonable and
husband and accom-
appointment for one’s
legitimate. They cannot be strained or
lawyer’s
for the
panying him to the
office
conjecture
mere
or surmise.
the result of
will,
making
coupled
with oc-
purpose of
’ ”
* * *
added.)
(Emphasis
Drap-
In re
casionally furnishing
beverag-
him alcoholic
Estate,
427,
supra,
quot-
P.2d at
er’s
374
are ex-
knowing
es
that he is an alcoholic
Estate,
ing
supra,
from In re Lane’s
tremely flimsy
questionable
and
items
P.2d at 363.
which to find undue influence.
absolutely
I submit
there was
no
1916,
this court set forth its view rela-
evidence of undue influence
wife over
tive to undue influence:
inferring
testator-husband and that
such
question
The
is not whether this
from the fact that she
him occasional
juror,
as a
the district
will is such
one
beverages, knowing
alcoholic
him to be an
court,
of the
or this court is
alcoholic; the fact that she called his law-
made under the cir
testator should have
yer
appointment
for an
to make a will and
cumstances; but was it the will of Josiah
office;
accompanied
lawyer’s
him to the
Cook at the time and was it his desire
from the fact
she
furnished him a
property
disposed
that his
should be
help;
home and financial
and from the fact
bequeathed
after his death as therein
required frequent hospitalization—
by per
deliberately
devised? Wills
made
taking
together
all these facts
not fair
lightly
sons of sound mind are not to be
—is
and reasonable but amounts to a strained
aside,
set
and the undue influence which
conjecture
premised
result
and surmise.
doing
proven
will warrant
so must be
destroys
agency
the free
be
Finally,
foregoing
negate
would
thereby substitutes
the will of another
reasoning
majority opinion
concern-
n * *
”
(Em
for that of the testator.
ing
application
and the
instructions
added.)
Bolduc,
phasis
Wyo.
Cook v.
Case,
language
Brug
this case of
580, 581-582,
281, 291,
p.
rеh. denied
(1979).
Wyo.,
dence.
I would reverse. SLAUGHTER, Appellant
David
(Defendant), Wyoming, Appellee
The STATE of (Plaintiff). Schilling, Appellate Counsel, Michael H. Wyoming Public Program, Defender and No. 5439. Hackl, Sylvia Lee Defender, Asst. Public Supreme of Wyoming. Court Wyoming Public Program, signed Defender the brief on appellant. Sylvia behalf of Lee June Hackl, Cheyenne, appeared in oral argu-
ment. Gen.,
John D: Troughton, Atty. Gerald A. Stack, Gen., Deputy Atty. Criminal Divi- sion, Johnson, Atty. Allen C. Sr. Asst. Gen., signed the brief appellee. on behalf of Johnson, Gen., Allen Atty. C. Asst. Sr. peared in argument. oral RAPER, J., ROSE, C. Before BROWN, THOMAS, JJ. ROONEY RAPER, Justice.
Appellant escape pursu- was convicted of 6-8-301, W.S.1977, ant Cum.Supp. § appeal challenges 1980.1 On his convic- First, tion on two bases. he contends that his conduct failed constitute the crime of jail escape county from a as defined in 6-8-301, supra, since he was not detained county jail in a when he extricated himself Therefore, from police custody. appellant argues judge that the trial in denying erred acquittal, motions for dismissal and instructing defendant did physically county jail have 6-8-301, W.S.1977, jail, Cum.Supp.1980: escapes jail county Section from the shall be imprisoned penitentiary “Any not to exceed person imprisoned any or confined (3) years, county three fined not more than five hun- jail Wyoming pur- within the state ($500.00), trial, dred dollars or both.” awaiting suant to or sentence while lawfully any county held in manner in