27 Colo. App. 104 | Colo. Ct. App. | 1915
delivered the opinion of the court.
Plaintiff in error filed his caveat in the County Court of Jefferson county against the probate of the will of August N. Thelander. The contestor was a nephew of the testator. So far as appears by the record, the entire estate of the testator was bequeathed to a nephew residing in Jefferson county, and another person whose relationship is not disclosed, thereby disinheriting a brother residing in Sweden, and a number of nieces and nephews of the testator, all of whom, with the exception of the contestor, were, nonresidents of the state, and, most of them, of the United States. From the judgment of the County Court sustaining the will, an appeal was taken to the District Court, where a verdict was returned and judgment rendered in favor of the proponents of the will.
No part of the evidence is preserved in the bill of exceptions, which contains only the instructions given, objections thereto, rulings on the objections, and exceptions reserved. The only errors assigned are to the giving of instructions numbered 16 and 17 over the objection of the plaintiff in error. The contention made is that the instructions named relate to the precise issues involved, are erroneous under any phase of the case, or any conceivable state of the evidence,' and, therefore, a conclusive presumption arises that the alleged errors were prejudicial, and the judgment must necessarily be reversed.-
In the instant case, twenty-nine separate instructions were given, apparently covering.every conceivable phase of the case, and, as a whole, correctly advised the jury upon the law applicable thereto, so far as disclosed by the record here. The issues made include the question of mental incapacity of the testator to make a will, and the exercise of undue influence in procuring its execution. The sixteenth instruction is crude in grammatical construction, without suitable punctuation, vague, and, perhaps, ambiguous in meaning. It states, in subtance, that the laws of Colorado permit a person of lawful age to dispose of his property by will as he pleases, and that unless want of mental capacity in, or the exercise of undue influence upon, the testator, is shown by other clear and convincing evidence, the fact that preference was given by the testator to a niece or a nephew, o.r even to a stranger, thereby disinheriting brothers and sisters, or even children, would create no suspicion as to the mental capacity of the testator, nor that undue influence had been practiced upon him; and that such disposition, however unreasonable, should not be considered by the jury in arriving at its verdict as to the validity of the will. We think the interpretation we have given to the instruction is the meaning that it would convey to a jury. Taken by itself, this instruction is not an accurate statement of the law, as it appears to withdraw from the the jury the right to con
“For aught that appears, there was no conflict in the testimony. Without an opportunity to examine it, it is impossible for use to know whether there was or not. It, may have been so conclusive as to preclude any verdict but the one which was returned; and if so, the language of the instruction is not very material.”
The first sentence of the seventeenth instruction, taken alone seems to justify the strictures made upon it by counsel, but, as explained by other parts of the same instruction, it cannot be regarded as harmful.
The judgment will be affirmed.
Affirmed.