Matter of Estate of Wheadon

carry discretion in such matters in order to sions law judgment entered expedition. on its business with reasonable thereon. We do not perceive wherein the plaintiff could any way be in prejudiced by change The motion for of venue the procedure followed. plaintiff refers to was filed him jury trial on issue of domicile. The On the basis of what has been said herein basis stated therefor was that because it is our conclusion plaintiff has defendant a lifetime had been resident and ample been afforded opportunity try to any area, in that was well known whereas the present any issues and to evidence he de- plaintiff California, was an outsider from will; sired to contest this and that he has there would be a bias in favor of de failed demonstrate that the trial court oppor fendant. procedure Trial affords an has abused its discretion or that he has been jurors tunity question and determine bias unfairly treated any these already reason; prejudice any and the trial long protracted too proceedings. proceed jury does not until an impartial is Affirmed. Costs to defendant (respon- obtained. The law is well established dent). enabling interest of the court to justice, efficiently carry processes on ELLETT, J.,C. and WILKINS and change large of venue rests JJ., HALL, concur. ly judgment ruling in his there upset clearly ap not be unless it MAUGHAN, J., concurs result. pears that he abused his discretion.2 For the rule to place be otherwise would litigants effectively

hands of a means of

sabotaging proceedings. allega plaintiff

tions of the referred im to above

press nothing more general ap us as than

prehensions upon conjecture; based in the light

when considered of the rules just not see trial stated we do Matter of the ESTATE of Har- refusing court abused discretion in WHEADON, vard L. Deceased. grant plaintiff’s motion for of ven ue. PIERCY, Jensen Iris and Ellen point: being final Plaintiff’s as Appellants, Plaintiffs and deprived by jury jury of trial because the v. used at the on the issue trial of domicile George WHEADON, Wheadon, John designated “advisory jury” as an is Tilbury, Bertha Defendants and transcript likewise merit. No without Respondents. that trial here brought and we therefore proceedings assume that the therein were No. 15329. regular and that determination made Supreme Court Utah. competent supported by and sufficient plaintiff evidence.3 It is noted that May sought appeal, per neither intermediate 72(b), U.R.C.P., gave mitted Rule preserve right

notice of a desire

appeal interlocutory judgment, from this 73(a).

permitted by Rule event the adopted findings

trial court of fact of jury conclu- as his own based his Tibbetts, Sawyers Sawyers, & 2. Chamblee v. Stocks Utah, v. Utah 2d 558 P.2d 607. 342, 344 P.2d 980.

MAUGHAN, Justice: This case deals whether a should be admitted to probate, under the laws of the Probate they Code as existed before the enactment of the Utah Uniform Probate Code in 1977. (hereinafter appellants The referred to as petitioners) petitioned the court below to admit the will probate, and respondents (hereinafter objectors) referred to object- ed to the petition, and asked in their own petition that decedent’s pass by intestacy laws of Utah. The matter was tried to a jury, at the close of all the evidence, the trial court directed verdict objectors, in favor of and ordered the estate according intestacy distributed to the laws. reverse, We and remand for trial. Costs to appellants. statutory All references are to Annotated, Utah Code decedent, Wheadon, Harvard L. April married, 1976. He was never and left no issue. He was survived by the Wheadon, Wheadon, objectors, George John Tilbury, Bertha W. who are his broth- surviving ers and sister. Also him were the petitioners, Iris Jensen and Ellen Piercy, Wheadon, daughters who are the of Melvin the decedent’s brother who died in 1971. May Decedent executed a will on all personal which left and real property to his named him executor of the estate. The parties dispute do not the contents of the proved by which were a conformed copy kept by The exe- lawyer. adequately proved, cution of the will was parties stipulated to the decedent’s capacity mental to make a valid will. Dece- Dahl, lawyer, dent’s Mr. testified he re- membered the execution of decedent’s kept orig- but not whether the decedent However, inal at that Mr. Dahl’s Garfield, Brent Spackman, J. Johnson & give at that time was to practice usual Walsh, plain- City, Lake David S. Salt office rec- client the and his appellants. tiffs and original. kept ords did not indicate event, apparently no one who testi- Nebeker, L. James Quinney & Ray, will after at trial ever saw decedent’s Lewis, Lewis, fied Wilde, Kay M. Jensen & Salt respondents. its execution. City, for defendants Lake about two weeks after recently Melvin died without a will and she and died, lawyer Wheadon decedent called his problems discussed the it created. stated he wished to name a new execu- She testified very decedent indicated it was tor, since Melvin had February died. On important to have everyone and that 19, 1971, decedent executed a codicil in Mr. asked, “Harvard, should have one. She do naming Dahl’s office Burton Judy and Sue you have a responded, “Yes, will?” He it’s Bateman, neigh- who had been decedent’s safety deposit 11, box.” April On bors, as executrixes. The codicil made no 1976, days death, three before decedent’s changes will, other to the and the decedent Judy Burton took him to the hospital, expressed no dissatisfaction to Mr. Dahl undergo where he was to surgery. After the distribution of a hearing news bulletin on the radio original will. Decedent Mr. Dahl asked to Hughes Howard had died and no will had codicil, original keep the and dece- found, been decedent disgust that dent retained was copy, a found in someone with such wealth would not have safety his deposit his box after death. his affairs Oakeson, in order. To Darlene neighbor another friend and who was death, diligent a mar- After decedent’s search Judy ried to Burton’s in- made, decedent of his house was and also Mr. of dicated March of 1976 that he upset safety deposit Dahl’s office. The box was stepfather that her husband’s opened, copy of the codicil was died without will, leaving a and he found. Mr. Dahl found the conformed of- stated his affairs were in order. copy morning fice will. On trial, copy (normally tissue to A well-established presumption of testator) also was found. The law exists as follows: when it is shown the found, will was never no and evidence ex- testator amade will of which posses he had tending destroyed, ists to show it was sion, to, or access but that it could not be merely lost. found at his presumes the law record, appears From a review of the it destroyed himself, testator with the in Harvard L. was aware Wheadon tent revoking it. This presumption can having importance wisely a will. He be rebutted sufficient evidence as was attorney prepare help contacted an to and done in In re Frandsen.1 Such evidence properly him execute his in 1955. In may testator, include declarations of the 1971, when his brother named which indicate his state of mind regarding executor, died, again he contacted his attor- will, importance of his or his attitude ney by executing executors toward beneficiaries named in the will.2 Leake, an codicil. Lawrence old friend of Considerable evidence decedent, exists decedent, twice, testified at least tending record presump order, get told him to affairs destroyed tion decedent his will animus re- you your “state tell where estate is vocandi. We have noted decedent going.” Ray Joyce Shephard, and made who statements to people regarding five were and im neighbors decedent’s friends for portance having life, having or of years last five of his stated one’s “affairs in order.” affidavit them These included decedent told several times state he ments made one month anyone had a will and that who did not before he died to Burton, Judy Judy he was foolish. who was dece- Burton that had a neighbor years, dent’s stated she and Darlene Oakeson that his affairs were in order, decedent had a conversation about wills in in the context of a discussion about March, 1976, approximately going one month be- wills. As he the hospital, Judy’s stepfather later, fore decedent died. had where he three days gave Will, Estate, 156, In re Frandsen’s re Bristol’s 50 Utah 167 P. 362 23 Cal.2d 143 P.2d Enz, Enz, (1917); Colo.App. (1943); 1, supra. In re Estate of In re Estate of note . 515 P.2d 1133 arises, problem affairs were A more difficult now by his comments his impression comments, In addition to such relating in order. statutory language to the in the returning to promptly actions in Probate Code which deals with lost or de execute a codicil after attorney stroyed point majority wills. On this does died, executor who was the named brother agree. Section 75-3-26 states: diligent decedent was in the illustrate proved No will shall be as a lost or affecting the will. matters attending destroyed proved unless the same is only changed the executor That the codicil to have been in at the time of provi- the other expressly reaffirmed testator, the death of the or is shown to that in the will indicates sions of have been the same about still felt testator, lifetime of the nor unless its as in of his estate disposition provisions clearly distinctly are In view of his will existed at that proved by least two credible witnesses. attitudes, destroyed his had he it Objectors petitioners intent to revoke contend the have will with the will, would have contacted likely of the failed to establish the existence will, to execute a different attorney again “In at the time of decedent’s death. exist- destroy the notify him to at least or ence,” they argue, paper means the codicil, kept. which Mr. Dahl of the physi- which the will was written must be produced. They state that if these cally Melvin, were Decedent and close, together merely lived that the will must be in and words mean very apparently Piercy was law, Petitioner Ellen many years. contemplation existence decedent for house with in the same words, raised shown to have been then the “or is during she testified that years; about ten lifetime the of fa- like a second time, “decedent was surplusage, testator” would be since a the testimony regarding only me.” The ther to destroyed if fraudulently will could not be petition- decedent toward feelings of any ill produced. the document need not be buy some tried was that decedent ers assert the words “in exist- Petitioners them, which home from adjacent to his land existence, or, the legal mean ence” must Melvin in and from had inherited they in the testator’s life- will was unrevoked disappointed because decedent of They physical state if existence evi- the land. No not sell him they would then this section required, document is the indicating any presented dence at all which contradicts the statutes of the code with his of decedent dissatisfaction ways out the in which a specifically spell showing decedent exists no evidence and argue will be revoked.3 Petitioners can the one executed than any will other made by only the statute allows revocation since addition, evidence was no in 1955. by instrument or de- testamentary another feeling between bad to show presented revoke, will the intent to struction with nor, excep- and decedent revoked, in this case was never of decedent above, be- mentioned incident tion of the exists and no no such instrument because Also, as petitioners. and decedent tween in- destroyed the will proof exists will alive, he believed long he was tending physical to revoke it. If govern existence, it would and that inwas 75-3- required under section of the will is of his estate. the distribution 74-1-19 states: 3. Section burned, torn, cancelled, being (2) By oblit- any part no written . . . destroyed, and for with the intent erated or thereof, altered otherwise be revoked or can same, by revoking purpose of than: himself, by person in his some testator writing (1) By or other a written by presence his direction. declaring or al- such revocation the testator with the same formalities executed teration by be executed such a will should with which testator; 26, then will of Turning the decedent hand, cannot case we conclude probated, and manifest unfairness results the words “in existence” statute valid, since the dece- should be meaning unrevoked will which construed as “in legal By doing existence.” govern say dent intended to have so we do not distribu- necessary all that is probate a lost tion do will cannot so. under old is to pre- code arguments appeal, Both have sumption of proponent revocation. The parties briefs of the illustrate that both are will comply must still with section supported cases in states with similar 75-3-26, 75-3-25, and with together which statutory provisions. com- It is difficult to proof require proper execution of the cases, however, pare the because thereof, the validity contents differences, statutory various be- thereof at least two credible witnesses. cause of the factual distinctions in the This promote construction continue to Evidently cases. attempt the courts con- 75-3-26, the purpose of avoiding while an strue similar statutes in a manner which unfair result which would arise under a prevent parties unfairness in- interpretation. strict We feel this view is volved, may explain why which the deci- agreeable more with the intent of section sions are to harmonize. difficult 74-1-19, clearly provides a lost or an purpose pre- accidentally destroyed of section 75-3-26 is to will is nevertheless spurious being probated. vent wills from valid unrevoked. thereof, construing language in-we Our construction sup statute finds mind, keep purpose

tend to while at port several other states which have rendering the same time a construction problem. with wrestled The Minnesota is fair and reasonable. This court stated in Supreme legal Court concluded that exist 4 In re Will: Frandsen’s ence was all was necessary under stat Utah’s, utes similar to In re regarded the statute is Havel’s Estate.5 The court a remedial, concluded interpreta and hence be a different should would, effect, tion add a new ap- fair and reasonable construction and scheme, revoke will under the statutory is, plication. That purpose if the whole since a valid but will not could be subserved, of the can statute be probated, legislature and the not did intend court, justice, may in furtherance of well such a result. give provisions a its fair even a liber- al construction rather than narrow and The Appeals New York Court of has one, when strict to do so would be unfair by slightly reached same result differ- unjust. means, ent under same In statute. In Will,6 re Fox’ the testator’s will was de- case, made a testatrix will stroyed in Germany by Allied bombs. will later became insane. The was shown with Faced the literal language the stat- time to be in existence she became making ute such an accidently destroyed insane, death, not at her some but fifteen unqualified probate, will for the court con- held, This years purposes later. court strued the “fraudulently destroyed” words compliance with what is now section meaning simply will was either acci- 75-3-26, the death of the testator was dentally lost or was destroyed without the death,” “mental time of her knowledge testator’s The consent. therefore the time had thus been “fraudulently de- her The court thus what “death.” reached stroyed,” was admitted to probate. just by it considered the fair and result liberally interpreting the word Supreme “death” The Colorado Court considered statute. its under statute which is simi supra p. 4. Note 6. 9 N.Y.2d 214 N.Y.S.2d 174 N.E.2d (N.Y., 1961). 156 Minn. 194 N.W. Utah’s, language lar to but does contain not Court regarded to be as indicating how the destruction, dealing with fraudulent issue of fact should be resolved. re Eder’s Estate.7 The court noted: law, Under our the trial court does not And a validly pub- once made and comment on credibility evidence, lished, will, although remains a the writ- upon the effect thereof. It it, ing, the best evidence of in the absence that, thought except to indicate that there revoke, destroyed. of intent to be lost or is sufficient evidence to raise a jury ques- considered, Thus the word “existence” in tion, this opinion Court’s should respect that our statute has to do with the will of the same standard and leave determination of testator as manifested his intent that credibility of the evidence and the ef- writing the terms of the shall be carried fect thereof to the fact-trier. out on his death. There good is no reason opinion main correctly states that a testator should be to have decreed where the possession testator had of the intestate, wishes, and his solemnly com- will and it cannot be found after his writing, mitted to the loss defeated presumption it; there is a that he revoked is, all, merely or destruction of what but that this presumption can be rebutted best, only, and not the evidence of his by “sufficient evidence.” desires.8 “presumption” The term is but descrip- Acknowledging contrary, authorities to the tive process of a of reasoning in determin- we yet promotes nevertheless feel our view ing facts. It means that from showing statute, purposes but lead to facts, of the existence of certain viewed in more fair results than would a narrow in- light of common experience, sense and terpretation language. it is reasonable to pre- assume that WILKINS, J., concurs. exists;1 sumed fact and that it should be so CROCKETT, J., concurs with specially found to exist unless sufficient countervail- by separate opinion. comments ing evidence is adduced that reasonable might contrary, minds find to the in which HALL, J., in the views concurs case dispute there is a for the fact-trier to CROCKETT, concurring opinion in the J. judging resolve on the basis of where the ELLETT, J., by separate opin- C. dissents greater probability of truth lies.2 ion. It is view that in ease this there is the CROCKETT, (concurring specially Justice revocation; presumption of and that there comments): with evidence, contrary is which fact-trier (court believe, in remanding jury) may I concur this case for a trial but is nec- not propositions: believe, that agree essarily required to these is sufficient to dispute in material issues of fact agree there is a I presumption. with expressed which must be resolved in order to deter- the view opinion the main that mine whether the will in was the it is not absolutely necessary that there be existing physical production valid and will of Harvard L. Whea- of such a will.3 There death; that it presumption anything don at time of his is also a shown given was therefore error for the trial court to to be in at a time continues jury. take the case from the But I think it to exist contrary unless the is shown. The improper for the of this fact-trier can properly would be decision also consider that 173, (1934). presumption.” Wigmore, Evidence, (3rd P.2d 631 sive Ed.) 7. 94 Colo. 29 2492; deprecating Sec. also the idea of Colo, 634, 182, p. pp. 94 29 P.2d at 635. 8. Jones, presumptions, absolute see discussion Evidence, (2d Ed.) Commentaries on Sec. 42. Am.Jur.2d, Evidence, 1. See 29 Sec. P. 194. Will, 3.See re Frandsen’s Footnote Main Commonwealth, 172 2 2. See Miller v. Va. Opinion. 343; Wigmore S.E.2d states that “In strict- ness, thing there cannot be such a conclu- along presumption, presumption with after his there arises a presumption to, together revocation above referred with that during his destroyed lifetime he it.1 of the other all circumstances shown The statute2 in force effect at the in determining greater whether case time of the death of the testator and at probability of truth is that decedent had time petition probate the lost will a will the time of his death than that he read: it. But I do not had revoked think be proved No shall as a regarded case be evidence this should destroyed unless proved the same is finding compelling Court as to have been in existence at the time of there was such a valid in existence. testator, the death of the isor shown to opinion that an should My opportunity have been in the fully present to both sides to their testator, lifetime nor unless its and, arguments evidence and their without provisions are clearly distinctly thereon, as to prejudgment directive proved by at least two credible witnesses. (or jury fact-trier) trial court permit proof There was no in this case to resolve the critical issue above stated. fraudulently will was destroyed during the lifetime the testator. HALL, J., concurs in the views It seems clear me that the trial court CROCKETT, concurring opinion of J. ruled correctly holding there could ELLETT, (dissenting): probate Chief Justice be no I non-existent will. ruling would affirm its and award costs to jury It would seem that a could infer that the respondent.. days decedent had a will three before days death. does not three for a It take destroy or to his mind man

will. a man made a will

When is shown that kept possession, or which he to, access and it cannot be at or

had found Will, U.C.A., 1953, In re Utah 167 P. Frandsen’s 75-3-26.

Case Details

Case Name: Matter of Estate of Wheadon

Court Name: Utah Supreme Court

Date Published: May 11, 1978

Citation: 579 P.2d 930

Docket Number: 15329

Court Abbreviation: Utah