In re the Estate of Gordon ( 1916 )

By the Court,

McCarran, J.:

William J. Gordon died on July 15, 1915. He was survived by a widow and by a minor heir, William J. Gordon, Jr. In an instrument purporting to be his last will and testament, after making small bequests of money to his wife, to his infant son, William J. Gordon, Jr., and to each of his sisters, he bequeathed the rest, residue, and remainder of his estate, of every kind and character, to one Mary T. Dougherty. An application to have this will probated resulted in a contest, at the inception of which the court appointed attorneys to represent the absent minor heir. The widow was represented in her individual capacity by other counsel.

The record in this case is voluminous. It will, however, we think, suffice to determine the principal point in the case upon a consideration of three propositions considered by the trial court, and upon which that court, as a final conclusion, refused to admit the will to probate:

“First, did the deceased possess testamentary capacity at the time it is testified that he discussed the making of the will with the draftsman, some time prior to the date he was taken ill ?

“Second, did the testator know, at the time it is testified to that the testator signed the will, that it was the instrument he discussed with the draftsman, or ordered him to prepare?

“Third, is the signature of the will the signature of the testator ?

1. We shall approach the last proposition first, and in doing so we deem it sufficient to quote the words of the trial court, wherein we find presented a fair resume of the evidence. He says:

“The evidence tends to show that at the time of the alleged signing of the will the testator could hardly see; was seriously ill and very nervous; that in first attempting to sign the will, while propped up in bed, he made the sprawl, and upon one of the witnesses remarking that the signature was not very good, or words to that effect, the testator said, T am too nervous,’ and requested one of the witnesses to steady his hand; that thereupon, and as testator was propped up in bed, the instrument in front of him on the magazine or cardboard, one of the witnesses proceeded to assist the testator to write his name in the manner following: He put his arm completely around the back of the testator, who held the pen, and in that position, with the witness guiding the hand' of the testator, the legible signature William J. Gordon was made.” ' .

The court determined that the signature thus made was rendered invalid, but with this conclusion we are not in accord. Our statute (Stats. 1915, p. 36) provides:

“No will * * * shall be valid, unless it be in writing, and signed by the testator, or by some person in his presence, and by his express direction, and attested by at least two competent witnesses, subscribing their names to the will in the presence of the testator.”

That a signature to a last will and testament is not rendered invalid by reason of another having aided the hand of the testator is supported by a line of eminent authorities. (In Re Miller’s Estate, 37 Mont. 545, 97 Pac. 935; Vines v. Clingfost, 21 Ark. 309; Craighead v. Martin, 25 Minn. 41; Fritz v. Turner, 46 N. J. Eq. 515, 22 Atl. 125; Sheehan v. Kearney, 82 Miss. 688, 21 South. 41, 35 L. R. A. 102; Jarman bn Wills, pp. 106-111.)

In order for this rule to apply, it must appear that the testator, at the time of requesting or receiving the aid in the signing of the instrument, had the present volition to affix the signature, and was aware and fully cognizant of the details of the instrument of will or testament to which he, by the aid of the other, was affixing his signature. The fact that the signature of the testator was made in the manner indicated by the record here would not of itself invalidate that signature. Hence we must decide- — and we do this in the light of a harmonious line of authorities — -that if the testator in this instance possessed testamentary capacity, was acting under no undue influence, realized the full force and effect of each and every one .of the provisions of the will that he was signing, then the signature, in the manner in which it was made, as described by the trial judge, was a valid signature.

2, 3. We now take up the second question considered by the trial court, namely: Did the testator know, at the time at which his aided signature was made, that the instrument he was then signing contained the provisions as to the distribution of his estate which he formerly discussed with the draftsman, or ordered him to prepare? The record in this case presents a series of events in the later life of the testator, as well as a condition of mind and body, which must not be overlooked in arriving at a conclusion as to the proper answer to be made to this question.

The trial court which heard the evidence, saw the witnesses, and had opportunity to observe their manner, conduct, and demeanor, had presented to it, as the record discloses, two sharply conflicting lines of evidence. The testimony of Dr. Hartzell, the physician who attended the decedent during his last illness, the testimony of Roy W. Stoddard, the attorney for the deceased and the draftsman of his will, as well as the testimony of the witness S. R. Tippett, each of the last-named witnesses being most reputable attorneys of splendid integrity, all tends strongly to establish that at the time of the signing of this instrument the deceased, Gordon, was of sound and disposing mind, and was fully aware of what he was doing. On the other hand, the record establishes a condition attendant in the testator, as well as surrounding circumstances, all of which, to say the least, appeared to lead to the catastrophe in his career relieved only by death. The deceased, up to a few months prior to the time of his death had resided in the Eastern States; he came to Nevada for the purpose of securing a divorce; he came here in company with the proponent of this will, the principal beneficiary under the instrument, Mary D. Dougherty, and her aunt, Mrs. Kramer; his wife, from whom he had been estranged, and six-year-old boy were in the Eastern States.

Prior to his coming to this state deceased had been in poor health, and his mental condition is described by his sister, Mrs. Pelton, where, in her deposition, she relates:

“Q. Will you describe your brother’s physical condition as you saw it on that day (February 20, 1914) ? A. He was very sick; he was losing his sight; he could hardly see.

“Q. As regards your brother’s ability to move, to walk freely, what was his appearance ? A. It was very difficult for him to walk; he walked with a stick and was led to the door by some man. I don’t know whether it was a nurse; he did not say. Some one was taking care of him.”

On being further interrogated, she testified:

“Q. Did you talk with your brother at that time, Mrs. Pelton? A. I did.

“Q. For how long were you in conversation with him? A. About an hour.-

“Q. As regards his coherence and ability to speak intelligently, what can you say? A. He could not speak intelligently; he could not make two sentences go together.

“Q. Now as regards his mental capacity, as shown by his conversation at that time, will you state what your opinion is ? A. I do not think he was capable of doing anything; he did not know what he was doing.

“Q. As compared with his mental condition of prior years, Mrs. Pelton, can you make any comparison? A. None whatever, because he hardly knew me.

“Q. Can you state whether he seemed stronger or weaker mentally than in previous years? A. Very much weaker.

“Q. Can you state whether or not he seemed to be under the immediate influence of say liquor at the time ? A. He appeared to be under the influence of something. I do not know whether it was drugs or liquor.

“Q. Did you see your brother again before he went West, Mrs. Pelton. A. Never.”

In answer to further inquiry, we find as follows:

“Q. In reference to personal facts in your relations with your brother, was he accurate and clear in regard to his statements? A. Not at all.

“Q. And as to inferences of your brother upon such facts stated, was he rational in his statement of such opinions,, or otherwise ? A. Certainly not rational.”

The testimony of the witness, Mary D. Hartzell, who prior to her marriage to Dr. Reine K. Hartzell on July 27, following the death of Gordon, was Mary D. Dougherty, and the party who, with her aunt, accompanied the deceased from Philadelphia to the city of Reno, is in part as follows:

“Q. Do you know what his (Gordon) primary object was in coming to Reno ? A. He came on account of his health and to obtain a divorce.

“Q. Obtain a divorce? Before he left the East and came out here, did you or did you not have consultations with him with reference to his obtaining a divorce? A. Frequently.

“Q. In the presence of other people? A. Yes.

“Q. Sometimes in the absence of other people? A. I suppose so; I don’t remember.

“Q. Who accompanied Mr. Gordon when he left the East and came to Reno? A. Mrs. Kramer, my aimt, and myself.

“Q. I wish you would state to the court, if you are able to say it, Mrs. Hartzell, why you accompanied Mr. Gordon to Reno? A. Because he was very ill; he had no one else to come with him, so he asked me if I would come, and I said if I could get Mrs. Kramer to come with me, I might lie able to do so; so I came with him.”

On further inquiry the witness testified:

“Q. I wish you would state to the court, Mrs. Hartzell, whether there was any agreement or understanding, express or implied, between you and Mr. Gordon, before you left the East, that in the event he could obtain a divorce that you would become married. A. There was.

“Q. What? A. There was.

“Q. That agreement or understanding was before you left the East, if I understand you correctly? A. It was.”

Gordon, as appears from the record, arrived in- Reno some time in the latter part of February or the first part of March, 1915. It appears that the decedent was more or less continuously under a doctor’s care from the time of his arrival in Reno until his death; but it was not until the 20th of June, 1915, that he became confined to his room and to his bed. At that time, and from that date forward, he appears to have been continuously under the care of Dr. Reine K. Hartzell and three trained nurses. The testimony of Dr. Hartzell discloses a course of treatment attendant with the administration of most powerful drugs and medicines. The charts kept by the trained nurses, and admitted in evidence in this case in the trial court, disclose the mental as well as the physical condition of the decedent during the time from the 20th day of June until the 30th day of the same month, on which latter day the instrument here in question was signed. These charts disclose, among other things, the following notations made by the attendant nurses:

June 20, between the hours of 12 p. m. and 3 : 20 a. m.: “Irrational.”

June 21, 2 a. m.: “Talking irrationally.”

June 22, 12 a. m.: “Rambling.”

June 23, 3: 30 to 5: 45 a. m.: “Talking irrationally.”

June 23, 6: 15 to 7: 30 p. m.: “Talking irrationally.”

June 24, 1: 45 a. m.: “Talking irrationally.”

June 24, 7 a. m.: “Talking irrationally.”

June 25, 1 a. m. to 3 a. m.: “Restless, irrational.” '

June 25, 1 a. m. to 6 a. m.: “Very irrational and talked continuously.”

June 25, 6 p. m.: “Irrational all day.”

June 26, 2 a. m. to 6 a. m.: “Very irrational.” “Irrational from 2 to 6 a. m.”

June 27, 4 a. m.: “Irrational.”

June 28, 3: 45 a. m.: “Talking irrationally.”

June 28, 5:30 to 6 p. m: “Very irrational all day.”

June 30, 6 a. m.: “Very irrational.”

It was between the hours of 5: 30 and 6 p. m. of June 30 that the will here in question was signed. There is no notation in the clinical chart of that day as to Gordon’s condition at or about the hour at which the will was signed. Indeed, there is no notation of the doctor’s visit, or of the visit of the party at that hour, although notations of the doctor’s visits on other occasions, and at other hours of the same day, are much in evidence in the charts.

The testimony of Attorney Stoddard bears evidence of the affection held by the deceased for his six-year-old boy. The testimony of Mrs. Hartzell makes reference to this as well. In the copy of a letter written by Gordon to a party in the East, of date April 15, we find the following :

“As per our conversation you can see by my address that I have started a Nevada residence. •

“As to William, I will do as I said I would, but would like to have it arranged so that I could see him occasionally.

“I am getting a divorce on the grounds of desertion, which you know is true. If I had not been so ill for the past eight months, as you know, I would not have taken this step. I think you understand the situation thoroughly.

“Trusting that you and yours and dear little William are well, I am. * * * ”

In another letter to the same party, on April 27, the following appears:

“Your letter received as to my affairs and business relations and different connections, really I have nothing more to say. As per our conversation of recent date, please remember I will do as I have said as to William, also I will get a divorce after I have resided here six months. If you wish to contest any point of course, I am always willing to meet you as a gentleman.”

The question before the lower court was as to the testamentary capacity of the deceased at the time at which he signed the instrument in which he practically disinherited his infant son. The condition of the testator on this occasion was a fact to be arrived at and determined. This court, as well as other courts .of review, have repeatedly said that where, on a question vital to the issue, there is a substantial conflict in the evidence, the determination of the trial court will not be disturbed if the same is supported by substantial evidence. To say that there is no conflict of evidence here, to say that the decision of the lower court was not supported by substantial evidence, would be to disregard entirely the mental condition of the testator as indicated by the testimony and as evidenced by the clinical charts made by the trained nurses, who, as we must assume, used the terms found there advisedly. The physical weakness, and indeed the mental condition, of the decedent, was evidenced in no small degree by the pitiable scrawl found in the will, made by his own hand.

With a weakened physical and mental condition which the record shows extended at least as far back as February 20 treated internally, hypodermically, intravenously with medicines of which in almost every instance arsenic was a component factor, he passed through successive days, from June 20 to June 30 when those in charge noted his conduct at intervals as “irrational.” On the last-named date the deceased performed an act which, to say the least, had all of the elements of being unnatural, wherein he eliminated his infant son from substantial participation in his estate. In view of all this, as borne out by the record, we are unable to say that the decision of the trial court, wherein it determined that at the time of the signing of the will the testator did not know what he was signing, was not supported by substantial evidence.

It is not for us to say whether, if the matter was before us in the first instance, we would have arrived at the same decision as was arrived at by the lower court. The question before us as it is presented here on review, is whether there is in the record substantial evidence to support the deteiunination of that court, in view of what we perceive to be a substantial conflict.

Counsel for appellant .assign error to the action of the lower court in appointing certain attorneys to supersede others in representing the minor heir. If error, it was such as could scarcely be. considered prejudicial to the interests of appellant in the matter so far as it has proceeded. We do not assume to determine the propriety of the action. The error, if such it be, might be properly considered if the matter involved the question of the allowance of fees, or other matters of similar import.

The order of the lower court in refusing to admit the will to probate must, as we view it, be affirmed.

It is so ordered.