Kelsey v. Cameron

LA PRADE, Justice

(dissenting in part, concurring in part).

I concur in the disposition of the. “second appeal”.

I cannot agree with the evaluation of the testimony in this case made by the majority in the “first appeal”, and therefore I dissent in the disposition made of this appeal and directing that the will be admitted to probate. If there is any rule of law that this court presumably adheres to it is that the judgment of the trial court, based on the verdict of a jury, will not be disturbed on appeal if there is any reasonable evidence in the record to sustain it. Valley Nat. Bank of Phoenix v. Carrow, 71 Ariz. 87, 223 P.2d 912; Chester v. Chester, 69 Ariz. 104, 210 P.2d 331.

Another hard and fast rule is that in reviewing a judgment of the trial court, based on a verdict of the jury, the evidence will be viewed by this court in the strongest manner in behalf of the prevailing party. A few of the cases announcing this ruling are: Robles v. Preciado, 52 Ariz. 113, 79 P.2d 504; Salt River Valley Water Users’ Ass’n v. Cornum, 49 Ariz. 1, 63 P.2d 639; Musgrave v. Southern Pacific Co., 49 Ariz. 512, 68 P.2d 202.

In- the case of Ghiz v. Millett, 71 Ariz. 161, 224 P.2d 650, 651, we stated:

“This court may not weigh evidence to determine its preponderance upon a disputed question of fact, but is concerned only with whether facts do exist which might reasonably support the judgment, and if they do, the judgment must be sustained. Dunseath v. Tucson Golf & Country Club, 51 Ariz. 14, 74 P.2d 43; Painter v. Freije, 65 Ariz. 153, 176 P.2d 690; Hillman v. Busselle, 66 Ariz. 139, 185 P.2d 311.” For additional cases see 2 Arizona Digest, Appeal and Error, ^ 1002.

It is also a well-settled rule in this jurisdiction that the judgment and verdict must be upheld when based upon competent testimony or upon reasonable inferences to be drawn from testimony of probative facts. Atchison, T. & S. F. Ry. Co. v. Hicks, 64 Ariz. 15, 165 P.2d 167, 172. In this case Justice Morgan, speaking for the court, said:

*264“We might have come to a different conclusion, but this court and the trial court where the case was submitted to the jury are not the triers of the facts.”

The foregoing rules are elementary and have been stated and restated. There is no occasion to restate the reasons back of these rules for we have decided hundreds of cases wherein the reasons for the rules have been expounded at length. On June 30, 1952, this court, in the case of Wilson v. Flaccus, 74 Ariz. 197, 245 P.2d 962, which involved a judgment founded on contradictory evidence, stated:

“This court has said times without number that the trial court who had the opportunity to see, listen and gauge the demeanor of the witnesses on the stand is the best judge of conflicting testimony.”

As far as I am concerned a litigant has nothing to gain and will gain nothing by an appeal to this court from a verdict and judgment based on contradictory testimony and reasonably supported by the testimony, unless the same is physically impossible or patently untrue. Motors Ins. Corp. v. Rhoton, 72 Ariz. 416, 236 P.2d 739. The difference of opinion of the judges in this case arises not from the law and rales applicable but from an evaluation of the testimony.

Two interrogatories were submitted to the jury. They are, first, “At the time the will was made was Emma M. O’Connor of unsound and undisposing mind and mentally incapable of making a will?” The answer was yes. The second interrogatory reads, “Was the execution of said purported will procured through undue influence exercised over the testatrix, Emma M. O’Connor, by the defendant, Harry W. Kelsey, or anyone acting in consent with him?” The answer was yes. The jury unanimously concurred on each of the interrogatories. The judgment of the trial court set the will aside and adjudged that (1) Emma M. O’Connor was of unsound and undisposing mind and mentally incapable of making a will, and (2) the execution of the will was procured by undue influence exercised by the opponent of the will and the sole beneficiary thereunder.

Is there any testimony in the record that reasonably tends to support the verdict and judgment, that is reasonably sufficient to support the verdict and judgment ? If there is, under the oft-repeated statements of this court the verdict and judgment must be sustained. The majority say, “There is no testimony of insanity of deceased of such broad character as to establish mental incompetence generally.” The jury and the trial judge said there was.

Now let us look at just some of the factual situation that was developed before the jury. The will was made on December 16, 1947. At that time Mrs. O’Connor was approximately 80 years of age and had physically wasted away to practically nothing, less than 100 lbs. (in health she was a large woman). She was bedridden and had *265been since the early part of December, 1947. There was evidence from witnesses with whom she had been intimately associated that for many months prior thereto she was incapable of attending to any business or entering into any contract or agreement or writing a will. For months prior to the execution of the will she had been suffering from delusions and hallucinations. Two days before she executed the will she did not recognize her nephew, Virgil Walker, with whom she was well acquainted. She had to be told who he was. One of the witnesses, peculiarly fitted to know whereof she spoke, testified that for some time prior to the making of the will she had the mind of and acted like a baby, cried like a baby and wanted to be petted, and she was totally incompetent to execute business of any kind and in the opinion of the witness had no sufficient mind to make a will.

Within a few minutes after executing the will, as reported in the majority opinion, she suffered and experienced one of her numerous delusions about her dead husband being present.

This case was tried in Nogales, Arizona, the home of Mrs. O’Connor. Her long-time friend and legal counsel, Mr. Duane Bird, had interviewed her two days before this will was made. He declined to draw a will for her and testified that in his judgment she was incompetent to make a will. He appeared as a witness, and his general reputation for honesty and integrity and his character were well known to all of the jurors.

I am not saying that the jury reached the right verdict or that the judgment based on the verdict should have been reached. Nor did the jury by its verdict or the court by its judgment find that the property was not justly and equitably disposed of by the will. But it did find that at the time the will was executed Mrs. O’Connor was mentally incompetent to^ make any will and that she had been subjected to undue influence.

In view of all the circumstances the jury was entitled to draw the reasonable inference that Mr. Kelsey was bent on having the will drawn. Not being able to secure the services of Mr. Bird, Mrs. O’Connor’s friend and counsellor, he secured the services of Mr. Barry. Mr. Barry drew the will without first interviewing the testatrix and the will contained the terms “dictated by Mr. Kelsey”. The attesting witnesses were secured by Mr. Kelsey.

Now let us see what happened moments before the actual signing of the will. Mr. Barry testified that Mrs. O’Connor read the will aloud. He said:

“* * * I told her that Mr. Kelsey had informed me she wanted to make a will and he stated she was to leave everything to him, and I asked her if she could read it, that I had the will with me, and she took the will and she looked at it, and said, ‘Do you want me to read it aloud?’ and I said, ‘Yes, that *266would be a good idea,’ and she began to read it clearly and distinctly. I was rathér surprised she could read so well, and she began to read until she came down to the first clause, and she halted after reading it.
“Q. Will you read the first clause so that the jury will know? A. (Reads) ‘Having in mind that my deceased husband William A. O’Connor, on many occasions expressed á wish that at the time of my death all property then owned by me should go to Harry W. Kelsey, who was the husband of my deceased sister, Nellie Walker Kelsey, and who has always been kind and good to me, I give, devise and bequeath all that I die possessed of to said Harry W. Kelsey.’
“Q. What did she say after she read that ? A. She stopped when she came to that clause which referred to the leaving of the property to Harry Kelsey and said, ‘I don’t understand that. I don’t remember that. You know I have a sister Nellie.’ And then I said to her, ‘Don’t you know that your sister Nellie has been dead for many years?’ And she said, ‘No, I do not.’ I said, ‘Oh yes, she has. I can get her death certificate for you from Phoenix in a few days.’ She said, ‘But I don’t want to put you to that trouble.’ I said, ‘Don’t you remember she had an unusual disease called pellagra, and that she died many years ago?’ and she said, ‘Yes, I think I remember now. She was the wife of Harry W. Kelsey, as it says here. Ever since the death of Mr. O’Connor, Mr. Kelsey has been like a brother to me. I remember now Mr. O’Connor said everything should go to Mr. Kelsey because we owed a lot to him. He was very good to us. My husband said it would not amount to much, anyway.’ ”

I propound these questions: might not the jury-reasonably have believed the witness when he testified the testatrix said she “didn’t understand” the phrase that gave her property to Harry Kelsey and believed that the answer represented the true state of mind of the testatrix? At that very moment the testatrix did not remember that her deceased sister, Nellie, had been dead for many years. The witness, Mr. Barry, had to argue with her and convince her of the fact that her sister was dead, and he offered to prove it and to get a death certificate for her. Mr. Barry then testified that he said to the testatrix:

“I certainly would not want to influence his widow to do anything she didn’t want to do. Now you can keep this will and read it over, and if it is not what you want to do, don’t sign it, but while I don’t want to urge you to make your will I would suggest that you do so. If this will is not satisfactory, tell me what you want, to whom you wish your property to go, or call in *267some other lawyer and have him prepare a will according to your wishes.”

What was the response ? She said, “I don’t understand anything about business. My husband always took care of anything.” Isn’t it a reasonable inference that at that moment Mr. Barry was “up a stump”? What did he do or say? He asked Mrs. O’Connor, “Do you want to talk to Harry ?” He did not wait for an answer but went out of the room and got Mr. Kelsey to go in and talk to her.

According to Mr. Barry, Mr. Kelsey went in, closed the door and stayed closeted alone with Mrs. O’Connor for ten minutes. Mr. Kelsey had been her long-time friend and confidant and the only man who could direct her or get her to comply with his wishes or the wishes of her friends. The evidence was that his presence alone was always sufficient to secure compliance from Mrs. O’Connor. What happened when Mr. Kelsey locked himself up in the room with Mrs. O’Connor?- No one knows but Mr. Kelsey. He testified she had the will in her hand and she said, “Do you want me to sign this?” and he said, “Emma, have you read it?” She said, “Yes,” and he said, “Go ahead and sign it.” He did not testify that the testatrix said, “I want to sign it.” The testatrix said, “Do you want me to sign it?” and then he said, “Yes.”

Mr. Kelsey was the sole beneficiary of the will. Contrary to the statements of the majority opinion the disposition of the property is not in compliance with all of her so-called “oft and many-times-repeated desire”, the testimony from some of the witnesses being that the testatrix had often said that she was going to leave the property to “Kelse and Edith” (being Mr. Kelsey and his wife, Edith). Mr. Kelsey dictated the terms of the will and neglected or on purpose left out his wife. By the terms of the will the property therein demised became his separate property.

The will further did not carry out the “oft-repeated” intentions of Mrs. O’Con-nor. From the witnesses it appears that Mrs. O’Connor had stated many times that she wanted Mrs. Milliken to distribute to some of her friends such articles as an old picture, an old vase and an old relic. Mrs. O’Connor repeatedly said she was going to leave a $1,000 bond to her niece, Mae Walker; that she wanted Mae Walker to have some of her personal things; that she wanted a diamond ring to go to Madeline Kelsey; that Virgie Walker was to have a certain ring and that Mrs. Milliken was to have certain pieces of her personal effects.

It does not occur to me that the majority opinion is bolstered in the least by saying that the executed will accomplishes what Mrs. O’Connor had always intended. According to the testimony the will does not fully accomplish what she intended. In any event this argument is all beside the point. The question is, did the testatrix have testamentary capacity at the time she executed the will, and, is the will the product of un*268due influence exerted upon the mind of the testatrix ?

I am of the opinion that there was ample testimony, as I evaluate it, from which the jury and judge could have concluded that Mrs. O’Connor was without testamentary capacity and had been subjected to undue influence. It is not the province of this court to weigh the evidence to determine its preponderance upon disputed questions of fact. . Its only concern is whether evidentiary facts do exist which might reasonably support the judgment, and if they do the judgment must be sustained; that is, if we are to follow the oft-repeated rule of this court, for different inferences as to the ultimate facts may be drawn from evidential facts and inferences drawn by the trial court must be accepted by the Supreme Court of Appeal. Daily Mines Company v. Control Mines, Inc., 59 Ariz. 138, 124 P.2d 324; Kenton v. Wood, 56 Ariz. 325, 107 P.2d 380.

Mr. Kelsey testified at length and his appearance, demeanor, attitude and desires were fully gone into and subjected to inquiry. Did the jury put any credence in testimony that he believed Mrs. O’Connor was of sound and disposing mind? The Hon. Judge Gordon Farley, Judge of the Superior Court of Santa Cruz County, Arizona, testified that during the summer of 1947 Mr. Kelsey came to him and wanted him to use his influence with Virgil Walker (nephew of Mrs. O’Connor) to persuade Virgil to get the members of the Walker family to make a contract of some kind with him so he would get the O’Connor home. The Judge further testified, “I queried him as to why he didn’t negotiate directly with Mrs. O’Connor about it, and he stated to me at that time that she was not competent to make any arrangement”.

The Kelseys moved in with- Mrs. O’Con-nor during the last week in August, 1947, and subsequent to this event Mr. Kelsey again went to Judge Farley and discussed with the Judge the possibility of having a guardian appointed for Mrs. O’Connor. At this time he told the Judge that Mrs. O’Con-nor was mentally incompetent and unable to take care of her affairs herself. Mind you, this was four months before the will was executed and from which time Mrs. O’Connor continued rapidly to fail physically and mentally. Judge Farley further testified that at this conversation Mr. Kelsey requested him to use his influence to keep Gladys Cameron (niece of Mrs. O’Connor) from visting Mrs. O’Connor, his reasons being that she aggravated Mrs. O’Connor and, quoting Kelsey, “Mrs. O’Connor was not competent” and he “gestured in this manner (indicates)” indicating, as he supposed, that she had loose wheels in her head.

The effect of the prevailing majority opinion is that contestants failed to make a case to go to the jury; that the trial judge was in error in failing to recognize this *269want of proof; and was also in error in not rendering judgment for the proponent of the will and admitting it to probate.

As I evaluate the legal sufficiency of the evidence to sustain the verdict and judgment, it was more than ample. Viewing the legal sufficiency of the evidence as I do, I am of the opinion that the judgment of the trial court should be sustained.

DE CONCINI, J., joins in Judge LA PRADE’S dissent.