There is only one ground set forth in the petition of the defendant in error for a rehearing and withdrawal of our opinion, that merits consideration and that only — paradoxical as it may seem — because of its entire lack of merit, though urged by the writer with apparent confidence in its potency. Our decision is based upon the proposition that the matter sought to be litigated herein, namely, the mental capacity of the deceased Thomas E. James, is res judicata, and made so by our affirmance of the nullifying judgment of the district court in cause *Page 164 No. 8644 on the docket of this court, reported in 64 Colorado 133, 170 Pac. 285. The point sought to be made here by defendant in error is that the judgment in that case was based solely upon the finding of the jury, which was approved by the trial court, that Thomas E. James, the decedent, was insane only at the time of executing the paper writing offered for probate as a will, and not at any other time during the period of six years immediately preceding that time, which period would include the time when the bill of sale and the deeds in question in this case were executed. Assuming with counsel that the record in case No. 8644 is before us, let us examine this contention. The verdict of the jury in that case is that the instrument purporting to be the last will and testament of Thomas E. James is not his last will. The court submitted to the jury for answer the two following questions: 1. "Was Thomas E. James, the decedent, at the time of executing the paper writing here offered for probate, of sound mind and memory? Answer: No. 2. Was Thomas E. James, the decedent, unduly influenced at orbefore the time of executing the paper writing here offered for probate, by William H. James or some member of his family? Answer: Yes." The general verdict and special answers are consistent. The court entered the judgment nullifying the will upon this verdict, and special findings, of the jury that the instrument was not the will of Thomas. As proof or justification of the assertion in this petition for rehearing, counsel calls our attention to instruction number 8 given by the court in case 8644 wherein the jury were instructed that they must base their finding "as to the mental capacity of Thomas E. James and as to alleged undue influence exercised over him solely at the time he executed the writing offered as his last will and testament, and not at any other time whatsoever. Evidence relating to his condition of mind and to undue or other influence claimed to have been exercised over him, at any time other than when he was executing said instrument, has been admitted for the sole *Page 165 and only purpose of enabling you to better determine what his mental condition was, and what, if any, influence was unduly or otherwise exercised over him at said particular time." The instruction concluded with the statement that if on the day he, Thomas, executed the paper he was mentally competent to make it and was not acting under undue influence, the jury should return a verdict for the proponent regardless of his mental condition at any other time.
While in this instruction 8 the court did instruct the jury that their verdict must be based on their finding as to the mental capacity of Thomas solely at the time he executed the paper, and not at any other time, yet the court in this instruction referred to instruction number 10 wherein the court told the jury that the evidence which was admitted at the hearing as to such mental incapacity theretofore, and at all times during a period of six years immediately before the will was executed, was admitted for the purpose of enabling them better to determine what the mental condition of Thomas was, and what, if any, influence was exerted over him at the particular time he signed the instrument. We must presume the jury obeyed the order of court in this instruction and since it found that Thomas was insane when he signed the document offered for probate, it is a fair and just conclusion that the finding was, at least in part, based upon the jury's implied further finding that at other times, as alleged in the complaint, and denied in the answer, Thomas was also insane; and that such finding entered into and in part formed the basis of the particular finding of the jury that he was insane on the day he signed the will. That is, the jury must have concluded, and so found, from the evidence, as to the mental incapacity of Thomas for six years immediately preceding the time of the execution of the will as well as at that time, that during all this period he had not the mental capacity to make a will. We say, therefore, this record in case No. 8644 conclusively shows that the issue of insanity when the *Page 166 will was made, and for six years prior thereto, not only was tendered by the pleadings, but was actually litigated by the court's special permission, and the jury obeyed the instruction and considered the evidence introduced on such issue, and decided in favor of the caveator as one element going to show that Thomas was insane during all this period of time down to and including the moment the will was signed.
As matter of fact and law, the answer of the jury to this special interrogatory submitted by the court that Thomas was insane at the time he signed the will, is entirely consistent with the implied finding it also made, and with the verdict, and which is supported by the evidence, that he was also insane for a long time prior thereto, and this implied finding enabled the jury better to determine his mental state down to and including the time the alleged will was actually signed. A finding that he was sane during the preceding six year period would be inconsistent with a finding that at the very moment of signing the will he was insane. In the Croke case, supra, Judge Burke said: "Questions once litigated and determined may not be raised by the same parties in a subsequent action. `If the matter in question is controverted by the pleadings it will be conclusively presumed to have been litigated.'" Citing Irrigation District v. Ditch Co.,67 Colo. 336, 184 Pac. 382. Applying this doctrine, we say that the issue as to the mental capacity of Thomas James, the alleged testator, included not only the time he made the will, but the six years immediately prior thereto. It was tendered by the caveat and controverted by the answer of Thomas thereto. Much evidence responsive to that issue covering the period of six years before the will was signed, was produced. The court told the jury they might consider it for the purpose of enabling them the better to determine the mental condition of Thomas at the very moment he signed the alleged will. We may, therefore, rightly presume, both as a problem in logic *Page 167 and as matter of fact and law, that the jury obeyed the instruction of the court and passed upon all the issues of fact as tendered by the parties.
The jury not only made answers to the two special interrogatories above mentioned, but also found in their verdict proper that the instrument purporting to be the last will and testament of Thomas is not his last will. This verdict, separate and distinct from the two special findings, is enough upon which to base the assertion that the jury found, and intended to find, that during a period of six years before the will was signed Thomas did not, during any portion of the time, have the mental capacity to make it.
There is no merit in this petition for rehearing and it is accordingly denied.
MR. CHIEF JUSTICE WHITFORD, MR. JUSTICE ADAMS and MR. JUSTICE BUTLER concur.