I do not agree with the conclusion of law announced by the majority opinion herein, but in my judgment the question therein decided is not properly before us in this appeal, and I therefore base my dissent principally upon the fact that the opinion decides the case on a theory presented for the first time in this court, and is therefore in conflict with an unbroken line of decisions heretofore handed down by this court.
This proceeding involves a contest over the probate of the will of Rita Smith. The will was duly admitted to probate in the county court of Osage county, and appealed to the district court of Osage county, and trial de novo was had and judgment was rendered again admitting the will to probate, and it is from this judgment that this appeal is prosecuted.
In the trial of the case considerable testimony was introduced in an effort to establish that the will was executed by the testator under duress, force, threats of violence, and undue influence, same being the grounds relied on by contestants for denying probate of the will. After hearing the evidence and argument of counsel the trial court announced his findings as follows:
"The Court: Let the record show, counsel in this case on both sides waive further argument and agree that the court should decide the case at this time.
"Gentlemen, of course there is quite a conflict of testimony in this case, as I view it; the testimony on behalf of the proponent of this will and the witnesses who propose it is that this will is executed with the same formality that any will is ordinarily executed with; that the will, according to Mr. Johnson, who wrote the will was discussed with the parties making the will at length for a period of some weeks or two before the will was finally drafted. At the time of the execution of the will, the two witnesses who subscribed the will testified that this will was presented to them, and that they were requested to sign it as witnesses. One of those witnesses is a brother of Mr. Johnson, who at this time admits that he is interested in the result of this litigation. The other witness is a representative of the Osage agency in that district, a man whose duty it is to care for the interest of the Indian and look after their interests, to report any misconduct, or any trouble to the superintendent. Then we have the testimony of at least two other witnesses, may be more, two or three other witnesses anyway, to the effect that Smith had undue influence upon his wife in procuring her signature to this will. We have the further testimony of Mollie Burkhart to the effect that she and Bill Smith's family — Bill Smith and his wife — had some difference while they were out in Colorado. That testimony was leaving out Mollie Burkhart. I think the *Page 224 law always favors the upholding of wills, the solemn declarations of persons at a time when they are thinking of the disposition of their property at the time of their death; and in all I think that this testimony offered here on behalf of the proponent of the will amply supports the will, and it will be the order of this court that the will be admitted to probate.
"Mr. Files: Will the court make the finding in this to the effect that she was not acting under duress when this will was executed and that no coercion was used?
"The Court: The court will find that this will was executed by her of her own free will and accord, and that no coercion was used to procure the signing of the will.
"The court finds that further, from the fact that the will was in existence for a period of at least 18 months prior to the death of these parties, and that no attempt was made, according to the evidence in this case, to revoke the will, or to draw a new will, and that is very strong evidence to my mind of the fact that this will was executed by her of her own free will and accord, without any duress or threats being used on the part of Bill Smith.
"Mr. Holcombe: Your honor reserved ruling on the demurrer. You have not passed on our demurrer, on the testimony of the plaintiff in support of the will."
This judgment was rendered on June 25, 1926, and motion for new trial was thereafter filed and overruled and the appeal filed herein on December 28, 1926. Thereafter, on April 15, 1927, plaintiffs in error filed brief herein in support of their appeal, and we find on page 5 therein, in their statement of the case, the following language:
"In due time and in proper form the appellants herein filed their objections contesting the said will on the ground of fraud, undue influence, lack of mental capacity, etc."
Again, from page 27 of said brief, under the heading of "Assignment of Error," we quote, as follows:
"Contestants' motion for new trial was filed within due time and contained, as one of its grounds, that the judgment of the trial court was contrary to and not supported by the evidence. We, therefore, present in this appeal but the one assignment, to wit: The judgment of the court is contrary to and not supported by the evidence."
Again, from page 27, under heading "Argument and Citation of Authorities," we quote as follows:
"This being an equity case, it is the duty of this court to either affirm the judgment rendered by the trial court or reverse this cause and render judgment upon the record. Wepresent but one assignment of error. In presenting this assignment, several principles of law must be considered and the evidence contained in the record analyzed and applied to the same."
We quote these paragraphs from plaintiffs in error's brief for the purpose of showing the only assignment on which this action was briefed and presented to this court and as being conclusive, in our judgment, as to the theory upon which the case was tried in the court below. The record clearly discloses that the only grounds relied on in the court below for contesting the will were "fraud, undue influence, lack of mental capacity, etc.," as herein quoted from plaintiffs in error's original brief. The only assignment on which the plaintiffs in error seek a reversal is that the judgment of the court is contrary to and not supported by the evidence. On June 21, 1927, defendants in error filed their brief in answer to brief of plaintiffs in error and in support of the judgment rendered in the court below.
This cause was thereafter, on April 3, 1928, orally argued before the court, and then, for the first time, either here or in the court below, the alleged invalidity of the will on the ground that it was a mutual or reciprocal will and if void as to one party to it, is void as to both, was asserted and relied on by counsel in the oral argument, and four days thereafter a short supplemental brief was filed by plaintiffs in error, citing the Illinois case of Martin v. Helms, 149 N.E. 770, upon which, and the cases therein cited, the majority opinion is based.
We have thus specifically set forth the facts as above to show clearly the theory upon which this case was tried and decided in the trial court and originally briefed in this court, and to further show clearly just when the theory upon which the case was decided here was first presented to this court, for it is this state of facts as shown by the record, which clearly, in my judgment, brings the majority opinion in direct conflict with the cases herein cited. Counsel for plaintiffs in error did not contend that the theory suggested upon oral argument and in the supplemental brief filed four days thereafter had ever theretofore been suggested in this case, and nowhere in the record or briefs is it suggested that the trial court erred upon this proposition, except in the oral argument here and supplemental brief filed thereafter, as heretofore pointed out. *Page 225
The rule heretofore announced by this court and consistently followed is found in the early case of Bouton v. Carson,51 Okla. 579, 152 P. 131, the third paragraph of the syllabus being as follows:
"A party cannot try his case in the trial court on one theory, and then ask a reversal of the judgment in this court on a theory not presented to the trial court and not raised by the pleadings."
This rule has been reaffirmed by this court in the following cases: Wallace v. Blassingame, 53 Okla. 198, 155 P. 1143; Primous v. Wertz, 65 Okla. 7, 162 P. 481; Board of Com'rs v. Henderson, 66 Okla. 282, 168 P. 1007; Edwards v. Phillips,70 Okla. 9, 172 P. 949; Collings v. Industrial Sav. Soc.,94 Okla. 271, 221 P. 1036; Adams v. Berry-Beal Co., 99 Okla. 86,225 P. 927; Smith v. Gooding, 100 Okla. 230, 229 P. 269; Goldstandt v. Goldstandt, 102 Okla. 218, 228 P. 770; Fast v. Gilbert, 102 Okla. 245, 229 P. 275; Price v. Preston,103 Okla. 47, 229 P. 437; Polson v. Revard, 104 Okla. 279,232 P. 435; Josey Oil Co. v. Board Co. Com'rs, 107 Okla. 266,231 P. 272; Stapleton Motor Co. v. Coley, 107 Okla. 269,232 P. 28; Cole v. Kinch, 134 Okla. 262, 272 P. 1017.
In Goldstandt v. Goldstandt, supra, the second paragraph of the syllabus is as follows:
" 'Where a defendant relies upon a certain defense in the trial court, he will not be permitted to shift his ground of defense on appeal so as to present other defenses not presented nor relied upon in the trial court." Duffy v. Scientific American Compiling Dept., 30 Okla. 742, 120 P. 1088.' "
And in the body of the opinion, the court said:
"The lower court must be given an opportunity to function in regard to the theories of both plaintiff and defendant, as was said by this court in Gunn v. Jones, 66 Okla. 321,169 P. 895:
" 'A party bringing or defending an action is required to frame his pleadings in accord with some definite or certain theory, and the relief to which he claims to be entitled must be in accord therewith. On appeal he is bound by the position and theory assumed, and on which the case was heard in the trial court.'
"In the case of Duffy v. Scientific American Compiling Dept.,30 Okla. 742, 120 P. 1088, this court said:
" 'Where a defendant relies upon a certain defense in the trial court, he will not be permitted to shift his ground of defense on appeal so as present other defenses not presented nor relied upon in the trial court.'
"The fact that the defendant in the court below, by cross-examination of the plaintiff's witnesses, elicited some statements which might relate to the new theory presented here will not bring him from under the ban of the rule, when his pleadings in the lower court were filed in writing and clearly do not include the new theory advanced here. It is not fair to the lower court nor to a litigant's adversary that he be permitted to conceal during the trial in the lower court the theory of law on which he relies for a defense and bring his adversary here with great delay and expense to contest a theory not disclosed in the lower court. Litigation takes on a serious aspect in the lower court. This court on appeal is concerned primarily in correcting erroneous conclusions of the lower court made on matters to it presented."
In Re Smith's Estate, 125 Okla. 104, 256 P. 725, an appeal involving appointment of administrator of the same estate involved here, this court said in the opinion:
"It is well settled that a change of theory on appeal will not be permitted."
In Re Nichols' Will, 64 Okla. 241, 166 P. 1087, it was held that an objection that the court was not legally in session during the trial made for the first time in this court should be denied. In that case the proponents of the will objected at all times to the court's jurisdiction, but no objection was urged that the court was not legally in session, and in the body of the opinion we find this language:
"It is difficult to escape the conclusion that the objection now made is an afterthought. It is not the policy of the courts to permit parties to speculate on the outcome of a trial, and afterwards on appeal raise for the first time the question that the court was not legally convened."
Likewise, it is not the policy of the courts to permit litigants to submit their cases to the trial court on one theory, and then, after an adverse decision has been rendered, present an entirely new theory in this court and seek a reversal on a theory not even presented or suggested in the court below.
In cases appealed to this court it sits as a court of review to review and correct errors occurring in the court below, and in order to reverse a case we must find there has been some error on the part of the trial court, and it is manifestly unfair to the trial court and indeed an anomaly to say that the trial court has erred on a proposition not presented to it and upon which it had no *Page 226 opportunity to pass and which original counsel in the case had neither suggested in the trial of the case nor in this court in the original brief filed herein, but which was raised for the first time on oral argument in this court by new counsel who did not even appear in the court below. As was said In re Nichol's Will, supra, we cannot escape the conclusion that the contention now made is only an afterthought.
Such procedure is contrary to, and in condict with, the rule of this court which is well settled by the cases herein cited, and we can see no good reason for departing from same in this case, but in my judgment a proper respect for the established rules of procedure and practice should impel us to follow same and to reaffirm the doctrine so often announced and grounded, as it is, in both reason and justice.
The majority opinion having disposed of the case on the theory that the will was mutual and reciprocal, and holding it was void as to one of the parties and it was therefore void as to both, did not consider or pass upon the sole proposition urged in the original brief for reversal, to wit, the alleged insufficiency of the evidence to support the judgment.
I have carefully reviewed the entire record which plaintiffs in error very properly urge it is our duty to do in cases of this kind, and I am of the opinion that the judgment of the court is not clearly against the weight of the evidence. In Baldridge v. Zigler, 103 Okla. 219, 229 P. 831, the rule was announced in the second paragraph of the syllabus as follows:
"In an equitable action the findings of the trial court should be sustained unless it appears that his findings are clearly against the weight of the evidence. The findings of the trial court should be strongly persuasive and should not be set aside unless this court can say in equity and in good faith that the conclusion reached by the trial court is clearly against the weight of the evidence."
On the authority of this case and numerous others to the same effect, this case should, in my judgment, be affirmed.
Mr. Justice PHELPS and Mr. Justice LESTER authorize me to announce that they concur in the views herein expressed.