Battle v. Mason , 1955 Okla. LEXIS 625 ( 1955 )

WILLIAMS, Vice Chief Justice.

This appeal concerns a will contest. C. F. Meadors executed the will in question on May 5, 1950. Testator died on January 13, 1952, and on February 5, 1952, said will was admitted to -probate by the County Court of Oklahoma County. On June 30, 1952, testator’s two daughters by his first-marriage, Magnolia Mason and Maude Hurst, filed their petition in contest of said will, and on February 9, 1953, filed their amendment thereto. ■ On March 17, 1953, the county court denied the contest and refused to revoke the -probate of said will. Contestants thereupon took an appeal to the district court, and the district court, after a trial de novo, reversed the county court and ordered probate of said will revoked. Proponents have in due course perfected their appeal to this court.

. As their first proposition of error, proponents urge that the county court and the district court on appeal had no jurisdiction of the will contest on account of insufficiency of the petition in contest and lack of filing of a sufficient such petition within the time allowed by statute. The question was presented to the county court by motions to strike the entire contest, which were overruled. The same motions were presented to the district court at the commencement of the trial de novo, and again overruled, and proponents’ objection to the jurisdiction of the court, based on the same grounds, was also overruled.

Our statutes provide two methods of contesting a will. 58 O.S.1951 § 41, provides for contest prior to probate and 58 O.S.1951 § 61, provides for contest after probate. The latter section, pursuant to which this contest was instituted, reads as follows:

“When a will has been admitted to probate, any person interested therein may at any time within one year after such probate, contest the same or the validity of the will. For that purpose he must file in the court in which the will was proved a sworn petition in writing containing his allegations, that evidence discovered since the probate of the will, the material facts of which must be set forth, shows :

“1. That a will of a later date than the one proved by the decedent, revoking or changing the former will, has been discovered, and is offered; or,

“2. That some jurisdictional fact was wanting in the former probate; or,

“3. That the testator was not competent, free from duress, menace, fraud, or undue influence when the will allowed was made; or,

“4. That the former will was not duly executed and attested.”

The original petition in contest, filed on June 30, 1952, merely shows that on a certain date the will of decedent was admitted to probate and that contestants are the only children of decedent, following which are five allegations of grounds of contest and a prayer that the probate of said will be set aside. Such petition contained no allegation that evidence discovered since the probate of the will showed any of the grounds for contest relied on nor did such petition set forth the material facts of any such evidence. It is even doubtful that such petition could properly be called a sworn petition. Such petition is signed at the end by contestants and there is attached thereto what appears to be a verification. Such verification is in the usual form and is prepared for both contestants, but does not appear to have been signed by either of them, although the jurat of the notary public which follows recites that it was subscribed and sworn to before such notary public. In any event, regardless of whether such petition is or is not sworn to as required by statute, it is otherwise fatally deficient as above pointed out, so that it was not sufficient to confer jurisdiction upon either the county or district courts. In re Impunnubbee’s Estate, 49 Okl. 161, 152 P. 346. The syllabus in that case is as follows:

“In a proceeding to contest the validity of a will, after the same has been admitted to probate, instituted in the county court pursuant to section 6219, Rev.Laws 1910, by ‘any person interested therein/ upon any of the grounds of contest provided by section 6210, Rev.Laws 1910, it is mandatory upon such person to ‘file in the court in which the will was proved a sworn petition in writing containing his allegations, that evidence discovered since the probate of the will, the material facts of which must be. set forth/ shows the existence of the statutory ground or grounds for contest relied upon to avoid the deed.”

The instrument filed by contestants on February 9, 1953, is denominated by them as an amendment to the petition in contest filed on June 30, 1952. Proponents contend that it is actually a new contest filed without permission of the court and after the time allowed by law for filing a contest had expired and is therefore not sufficient to invoke the jurisdiction of the court. The instrument in question, although denominated an amendment, is actually complete in itself and reiterates all the grounds for contest contained in the original petition in contest but in considerably more detail. It contains an allegation that evidence in support of such grounds was discovered by contestants after the will was admitted to probate and is properly verified. Such instrument is in compliance with all the statutory requirements for a petition in contest after probate except that it was not filed within the time allowed by law and it does not set forth the material facts of the evidence discovered after probate. We are of the opinion, however, that it is immaterial whether the same be considered an amendment or a new contest, or whether the same was filed with or without authority of the court, since the identical situation was before this court in the case of Voght v. Hall, 203 Okl. 670, 225 P.2d 822, 823, and such case is decisive here. In that case contestants filed within the time allowed by law a petition in contest after probate which was deficient in the same respects as the one in the case at bar, and then after the time allowed by law attempted, with permission of the court, to amend such petition so as to eliminate the deficiencies therein. The county court overruled proponents’ motion to strike such contest but the district court reversed and contestants appealed to this court.. In affirming the district court’s judgment, this court said, in the body of the opinion:

“Under the statute, 58 O.S.1941, § 61, the.contesting petition must be filed within one year after the probate. The will herein was probated on November 14, 1946. The petition was filed on the last day of the limitation period, November 14, 1947.- The statute provides that the contestant must ‘file in the court in which the will was proved a sworn petition in writing containing his allegations, that evidence discovered since the probate of the will, the material facts of which must be set forth’. The petition s,o filed was not sworn to and did not contain an averment that the evidence relied on was discovered since the probate of the will. On November 17, the third day following the filing of the petition, the County Court permitted contestants to attach to the petition a written verification thereof. The court found that the verification had been previously prepared therefor but through inadvertence was not attached to nor filed with the petition, and ordered that the amendment was to be effective as of the date the petition was filed. And, on overruling the motion to dismiss, the court, by order, permitted contestants to further amend the petition by supplying the omitted averment above mentioned.

“The judgment of the District Court is correct. Any question of the want of jurisdiction in the County Court to entertain the petition is foreclosed by the holding in In re Impunnubbee’s Estate, 49 Okl. 161, 152 P. 346, wherein it is held: ‘In a proceeding to contest the validity of a will, after the same has been admitted to probate, instituted in the county court pursuant to section 6219, Rev.Laws 1910, by “any person interested therein,” upon any of the grounds of contest provided by section 6210, Rev.Laws 1910, it is mandatory upon such person to “file in the court'in which the will was proved a sworn petition in writing containing his allegations, that evidence- discovered since the probate of the will, the material facts of which must be set forth,” shows the existence of the statutory ground or grounds for contest relied upon to avoid the deed.’

“The petition therein was sworn to but contained no allegations of facts other than the statutory grounds of contest. The court there said: ‘Whilst this petition is verified by the contestant, there is no effort to comply with the part of the statute which provides that the contestant “must file in the court in which the will was -proved a sworn petition ill writing containing his allegations, that evidence discovered since the probate of the will, the material facts of which must be set forth,” shows any of the grounds of the contestant were not known, at the time the will was offered for probate.’

“And touching the legal effect of the non-compliance with the statute there is said: ‘In our judgment, the petition filed by the contestants does not state facts sufficient to confer jurisdiction upon either the county or district courts to entertain a contest to determine the validity of a will, after the same has been admitted to, probate.’

“There can be no question of the insufficiency of 'an unverified petition where the statute in express terms makes a sworn petition necessary.

“Since the jurisdiction of the court was not invoked by the petition filed and could not have been invoked by any petition filed thereafter, the court was without jurisdiction to authorize either of said amendments and the same had no -effect in law.”

Contestants attempt to distinguish the Voght case, supra, from the case at bar by pointing out that the original contest in the Voght case was not verified whereas the original contest here was properly verified and that such lack of verification was the real basis for the holding in that case. We find no such distinction to exist, however. In the first place, as already pointed out, there is grave doubt that contestants’ original petition could properly be called a sworn or properly verified petition. In the second place, the holding in the Voght case, supra, was not bottomed solely on the lack of verification of the ■petition in contest but rather upon the failure to comply with the mandatory provisions of the statute. The fact that contestants in the Voght case failed to comply with the mandatory provisions of the statute in three different respects, whereas contestants here may have failed in only two respects does not place these contestants in any different or better position than those in the Voght case. It is not a question of degree of compliance with the statute, but merely a question of compliance or non-compliance. Contestants in the Voght case did not comply with the mandatory provisions of the statute and contestants here did not comply with such mandatory provisions. The same law is therefore applicable to both. It seems apparent that under the above cited authority both the county court and the district court erred in overruling proponents’ motions to strike the contest.

Contestants also argue that the principles of waiver and estoppel preclude proponents from asserting their motions to strike the contest and cite numerous cases involving a waiver of jurisdiction of the person. Such cases are not in point here. There can be no doubt that the question of jurisdiction over the person can be waived by the entry of an appearance. We are not here concerned with a question of jurisdiction of the person, however, but rather with the questions of jurisdiction of the court otherwise and failure of the petition in contest to state a cause of action. Such questions are not waived, at least by any such actions as are here attributed to proponents. 12 O.S.1951 § 269; Mayor v. Bennett, 199 Okl. 579, 189 P.2d 186; Boarman v. Home State Bank, 111 Okl. 285, 239 P. 579; State National Bank of Shawnee v. Wood & Co., 88 Okl. 292, 212 P. 1002; Antene v. Jensen, 47 Okl. 352, 148 P. 727.

Although our holding on the first proposition of error would normally he sufficient to dispose of this case, the nature of the case and the allegations that have been made herein impel us to the view that justice will best be served by a complete review of the record herein and a consideration of every proposition of error presented by this appeal.

The so-called amendment to contest of will filed by contestants alleges four different grounds of contest and contains some most vicious allegations of fraud, duress, misrepresentation, forgery and conspiracy directed at the attorney who drew the will, the executor named in the will and one of the residuary legatees named in the will. At the trial, however, the only ground alleged which contestants were able to support with any evidence at all was their allegation that testator was incompetent at the time of the execution of the will. All other allegations were not only not supported by any evidence at all, but certain of them such as conspiracy and forgery were shown to be completely false and baseless. The trial court found that decedent was not possessed of sufficient mental capacity to make and execute a valid last will and testament on May 5, 1950, and as their second proposition, proponents contend that such finding is against the clear weight of the evidence. We are convinced, from an exhaustive review of the voluminous record herein, that such contention is well taken.

Contestants, who were 59 and '60 years old respectively at the time of the trial, were decedent’s only children by his first marriage. Such marriage had been dissolved by divorce prior to 1897 in the State of Arkansas when the older of'the two daughters was but 3 years old. Contestants and their mother thereafter remained in and continued to reside in the State of Arkansas, but decedent came to Oklahoma, where, in 1897, he remarried. This second marriage lasted until the death of the second wife some 52 years later in 1949. In 1916 decedent and his wife moved to Oklahoma City, where he resided until his death on January 13, 1952. During his lifetime decedent accumulated an estate which after his death was, appraised at the sum of $1,310,205.85.

For a number of years prior to his death Meadors had suffered from prostate trouble for which he had been treated by several doctors. For a good many years Meadors had employed his brother, Lewis Meadors, to manage his rental properties, collect' rents therefrom and take care of necessary repairs. In 1948 Lewis Meadors was replaced by his nephew, James B. Battle, Jr., who thereafter managed such rental property. Meadors, himself, however, continued to actively oversee and supervise his properties, and up until about May 30, 1950, continued to drive his own automobile and come to his office regularly. After the death of his wife in 1949, Meadors was appointed and acted as administrator of her estate, which estate was closed in July, 1950. . ¡

Some time prior to May 5, 1950, the date on which the will in question was executed, Meadors called his attorney, George M. Nicholson, to come to his office to discuss the making of a will. Nicholson went to Meadors’ office and discussed the matter with him, finally suggesting that Meadors prepare a list of the beneficiaries and how he wanted his property divided. Meadors subsequently brought such information to Nicholson’s office and a will was drafted in accordance with Meadors’ directions. By the terms of such will, Meadors’ two daughters, the contestants herein, were bequeathed the sum of $50,000.00 each, eleven of his nieces and nephews were bequeathed $1,000 each, the First Baptist Church of Oklahoma City was bequeathed $1,000, and the residue of the estate, after payment of all debts and taxes, was devised in equal shares to his living brothers and sisters, with the exception of Lewis Meadors, who was bequeathed $1.00. Such will was not executed, however, but was taken by Mead-ors who later called Nicholson and told him he wanted it rewritten so that his two daughters would receive $75,000 each instead of $50,000. The will was rewritten as directed and taken by Meadors, who on May 5, 1950, returned with it to Nicholson’s office and executed the same in the presence oí Nicholson and in the ..presence of Nicholson’s secretary, Hazel Gray, who predeceased Meadors. At the time of the execution of the will a discussion was had concerning the nature of Meadors’ estate, at which time Meadors enumerated the various properties owned by him and placed an estimated value on each one. The total of his estimated values was approximately $1,300,000. Meadors then took the executed will and went-to the First National Bank & Trust Co. where he deposited the same-in his safe deposit box. He then went to the office of Dr. John M. Roddy, in the Apeo Tower Building, where he was treated by Dr. Roddy.

On May 29, 1950, Meadors wrote a letter to the Liberty National Bank, authorizing James B. Battle, Jr., to sign checks on Meadors’ account there. On May 30, 1950, Meadors went to John Hopkins Hospital in Baltimore, Maryland, and returned home therefrom on June 11, 1950. On July 2, 1950, Meadors was admitted to St. Anthony Hospital in Oklahoma City, where he remained until August 15, 1950, at which time he was discharged and returned to his home. From that time on he remained in his home most of the time until his death January 13, 1952.

Contestants relied upon eleven witnesses to make their case, none of whom had seen testator on the day he executed the will. Those witnesses were: Maude Hurst and Magnolia Mason, the contestants, Vaughn Mason and Curtis Mason, sons of Magnolia Mason, Manila Ligón, a niece of Meadors’ deceased wife, Jade Ligón, son of Manila Ligón, Drs. Prosser and Adams, two medical doctors who never saw or heard of Meadors during his lifetime and who testified in response to hypothetical questions, Corinne M. McGlumpy, Mead-ors’ housekeeper and practical nurse from August, 1950, until his death, who never saw Meadors until 3 months after the will was executed and until after his serious illness in St. Anthony Hospital, C. C. Breeding, an elderly public accountant who made Meadors’ tax returns for many years and who said he saw Meadors about once a month, and Frank Bookstore, who said he saw Meadors one spring, hut couldn’t -recall the year. Each of these witnesses expressed an opinion that- testator was not mentally competent to malee a will on May 5, 1950-. Maude Hurst, Magnolia Mason, Vaughn Mason, Curtis Mason, Manila Li-gón and Jack Ligón may all be classed as interested witnesses, and in any event their testimony established nothing more than old age, a lack of neatness, bladder trouble, grief over the death of his wife of over 50 years, and occasional forgetfulness on the part of testator. Drs. Prosser and Adams both testified in response to a lengthy hypothetical question that testator was incompetent, but neither had ever seen or examined testator and 'both answered questions on cross-examination to the effect that testator was competent if the hypothesis given by the cross-examiner were true. In evaluating the testimony of these, two experts, the language we used in In re Williams’ Estate, 207 Okl. 209, 249 P.2d 94, 98, is most apt. Therein we said:

“In evaluating their testimony in the light of the other evidence produced in the case, we think the language contained in In re Rich’s Estate, 79 Cal.App.2d 22, 179 P.2d 373-379, is peculiarly applicable. In that case the court said:

“ ‘ “The witnesses were skilled alienists, it may be conceded, but the evidence thus adduced of one who has never seen the person, and who bases his opinion upon the facts given in a hypothetical question, is evidence the weakest and most unsatisfactory. Such questions themselves are always framed with great particularity to meet the views of the side which presents the expert. They always eliminate from consideration the countervailing evidence, which may be of a thousand fold more strength than the evidence upon which the question is based. They are astutely drawn, and drawn for a purpose and that purpose never is the presentation of all the evidence. It is never to present the fair and accurate view, but the purpose always is to frame a question such that the answer will announce a predetermined result. This kind of expert testimony, given under such circumstances, even the testimony of able and disinterested witnesses, as no doubt these were, is in the eye of the law of steadily decreasing value.” Furthermore, there was no showing in the testimony of the psychiatrist that the insanity, with which in his opinion testatrix was afflicted, was of such a character that except for it she would have divided her property in a way other than she actually did. • In other words, the testimony of the alienist did not establish the fact that the abnormality of mind which he ascribed to the testatrix had a direct influence on her testamentary act when she executed her holographic will.’ ”

The only other testimony worthy of note offered by contestants was that of C. C. Breeding, the elderly accountant. Breeding testified that he had done bookkeeping and made income tax returns for testator since about 1931; that up until 1945 testator would always question him about the tax returns and complain about his taxes being so high, but after 1945, testator never questioned the returns but just signed them after witness assured him they were correct and that testator’s failure to question the returns was one reason witness thought testator was incompetent; that the returns were correct and that there was no reason to question them; that in later years witness didn’t think testator gave him the correct answers when witness would ask him for information for use in preparing tax returns. Witness could not say how many times he had seen testator in 1949 or 1950, or how often testator had come to the office during that time. He seemed to recall seeing testator only once in 1950. In county court, however, this same witness had testified he had seen testator about once a month and that he didn’t think he was qualified to testify concerning testator’s competency. He finally testified, however, that in his opinion testator was not of the mentality to know the kind of property he had, the value of it, substance of it, location of it, income from it and amount of money he had in the bank, because the witness didn’t believe a man could have that much property and answer that kind of question about all those items; that a man would have to have a wonderful mind at any age to do that; that testator had too much property to know what property he had. This witness’ testimony was impeached by the testimony of Lewis Meadors and Edward H. Kiecolt, an agent for the Bureau of Internal Revenune. Contestants also relied quite heavily upon a written notation in the St. Anthony Hospital records made by Dr. Walker Morledge on July 8, 1950. Such notation is as follows:

“He is very senile — does not know where he is or the date, or the year. His memory is very poor — he cannot feed himself. Gave phys. exam — body in fair condition; reflexes good.-

Diag. — senile arterio sclerotic — cerebral type

Very poor prognosis — will require care for the rest of his life.

Morledge”.

Dr. Morledge testified, however, that he made such notation after seeing Meadors for the first time in his life in St. Anthony Hospital on July 8, 1950, when Meadors was very ill, and that subsequent developments had proven the diagnosis made that day to be completely wrong. Dr. Morledge testified that he had seen and treated Mead-ors a number of times after his discharge from St. Anthony Hospital and that Mead-ors was at all such times mentally competent and had a good memory; that as a result of further and later observation and treatment of Meadors and the results obtained he now agreed with the diagnosis of Dr. Basil A. Hayes and believed his own initial diagnosis to be completely in error.

In contrast with contestants’ witnesses, proponents produced some 36 witnesses who testified as to testator’s competency. Of the witnesses) only 4 could be said to be interested witnesses. Proponents’ witnesses consisted of three doctors, all of whom had seen and.examined testator during his lifetime, one of them on the very day the will was executed, the housekeeper who served testator at the time of the execution of the will and who observed him daily, the next door neighbors on either side of testator’s home who had lived there for a number of years and had almost daily contact with testator, a registered nurse who had cared for testator in St. Anthony Hospital and in his home after his release from the hospital, the manager of the safe deposit vault in which testator placed the will on the date of its execution, the lawyer who drew the will and witnessed its execution, business acquaintances and associates of many years standing who had frequent contact with testator, people who officed in the same building as testator and saw him almost daily, testator’s barber, his clothing salesman and other longtime friends and acquaintances, as well as an agent of the Bureau of Internal Revenue. At least five of these witnesses had seen testator on the day the will was executed. The testimony of these witnesses is positive, convincing and unimpeached. While time and space do not permit a detailed' account of all of such testimony, at least a portion of it must be recounted.

Dr. John A. Roddy testified that he has been a practicing physician in Oklahoma ' City since 1918; that he had known and treated Meadors since 1946; that Meadors had a cardiac condition and also some urinary trouble and that witness saw him and treated him on an average of once to twice a week from 1946 until about the last of June, 1950; that most of such visits had been at the doctor’s office, although a few had been at Meadors’ home; that on May 5, 1950, Meadors had come alone to the witness’ office in the Apeo Tower and witness had talked with him at that time; that Meadors looked like the average successful business man, was clean and properly clothed; that Meadors was competent all the time witness knew him; that Meadors’ mental capacity and attitude was extraordinarily good.

Ruby Green testified that she is a practical nurse; that she was employed by Meadors as a housekeeper from October 17, 1949, to July 27, 1950, and saw Meadoevery day; that up until May 30, 1950, Meadors went to his office every day; that he put on clean clothes every day before going to the office and was clean when he got back home; that he was never slovenly or dirty in his personal appearance; that he had prostate gland and bladder trouble but that he was mentally competent and very alert; that after he returned from John Hopkins Hospital on June 11, 1950, he was a little weaker physically than he had been before, but was just as alert mentally as he had been before and transacted his business at home after that; that he was mentally competent to know the nature and extent of his property and to whom he wanted his property to go.

Dr. Basil A. Hayes, an Oklahoma City physician, testified that he treated testator in 1939, 1940, 1941 and from about June 15, 1950 to June 9, 1951; that testator had a prostatic enlargement which required treatment from time to time; that from June 15, 1950 to June 9, 1951, he saw testator about once a week except while testator was in St. Anthony Hospital, (July 2, 1950-August 15, 1950) during which time he saw testator twice a day; that while in St. Anthony Hospital testator became uremic and suffered from uremic poisoning for about a week to ten days during which time he was practically unconscious; that that was the only time testator had uremia and that testator was competent at all times except for the short period he was unconscious due to uremia.

Edward H. Kiecolt testified that he was an accountant for the Internal Revenue Agency with the duty of making field examinations of income tax returns; that on May 2, 1950, he commenced an examination of the income tax return of C. F. Meadors; that in the course of such examination it became necessary for him to have additional information pertaining to some of the transactions involved in Meadors’ tax return; that James Battle, Jr., and C. C. Breeding, who were both present, were unable to supply the necessary information; that witness then conferred with Meadors personally and Meadors was able to immediately supply the needed information; that witness worked with, conferred with and talked to Meadors for at least a half a day and that Meadors was extremely capable and certainly competent to transact business; that some of the information required by witness pertained to matters that required going' through a couple of other transactions and ending up with a transaction occurring back in 1910, and that Mead-ors was able to supply such information easily from memory; that C. C. Breeding was present at the conference with Mead-ors but Breeding could not supply the information required. This conference with Meadors occurred on May 3, 1950, just two days before the will was executed. Witness saw Meadors again in June, 1950, and had another conference with him at that time and Meadors’ condition at that time was good and had not changed since he saw him the first time.

John Gillespy and Opal ’Gillespy were husband and wife and lived next door to Meadors from 1942 to July, 1950. They testified they saw Meadors almost daily and visited with him frequently; that Meadors was always neat and clean in appearance and up until he went to John Hopkins (May 30, 1950) drove his car to work practically every day; that in February, 1950, they sought his advice in connection with the purchase of a piece of property and later negotiated a loan from him to complete such purchase and in 1951 secured an increase of such loan; that Mead-ors was fully competent.

Testimony that Meadors was competent was also given by C. B. Warr, who had known Meadors since 1922 and saw him nearly every week and tried to buy some property from him in' May, 1950; by Claude W. Martin, who leased some land from Meadors in May, 1950; by Colonel H. Nelson, who had known Meadors 15 years, officed in the same building with him and since 1947 saw him almost daily; by A. P. Knight, who lived next door to Mead-ors for 20 years and saw him nearly every day; by O. H. McKee, the manager of the Ponca City Savings & Loan Ass’n, who had known Meadors for 20 years and saw him on an average of 3 or 4 times a week; by J. C. Todd, who had known Meadors 15 years and tried to buy some royalty from him in May, 1950, and did buy some royalty from him in July, 1951; by Velma Wilcox, a registered nurse, who attended Meadors from July 4, 1950, to June 15, 1951; by W. M. Randle, who leased a service station from Meadors in October, 1949, and saw him every week thereafter until he went to the hospital in 1950; by Nell C. Plarris, who had known Meadors since 1929, officed across the hall from him and saw him nearly every day; by Grover D. Strother, the manager of the safe deposit vault of the First National Bank & Trust Co., who saw Meadors on May 5, 1950, when he came to put his will in the safe deposit vault; and by many other friends, associates and acquaintances of Meadors of long standing.

A presumption of sanity goes with everyone, and the burden of proving testamentary incapacity in a will contest rests on the contestant. In re Martin’s Estate, 199 Okl. 567, 188 P.2d 862; In re Blackfeather’s Estate, 54 Okl. 1, 153 P. 839. It is true that the contestants appear here with the advantage of having a judgment of the district court in their favor, and .this fact should and does have a great weight here, but it is not controlling for .this is a case of purely equitable cognizance and this court should weigh the evidence and render or cause to be rendered such judgment as the trial court should have rendered. In re Chubbee’s Will, 133 Okl. 156, 271 P. 681; In re Blackfeather’s Estate, supra; Anderson v. Davis, 208 Okl. 477, 256 P.2d 1099.

While the burden of proof was upon the contestants it appears to us that the proponents have not only met the attack, but have gone further and proven almost conclusively that the decedent was of sound and disposing mind and memory at the time he executed the will in question and was fully conscious of what he was doing, and that the terms of the will expressed his own desire in the disposition of his property. In re Blackfeather’s Estate, supra.

Contestants object to the participation of two of the present justices of this court in the consideration of the petition for rehearing herein on the grounds that one of them was elected to the court and ■ the other appointed to the court after the promulgation of the original opinion of the court herein. It is apparently contestants’ position that only those justices who participated in the consideration and adoption of the original opinion are entitled to participate in the consideration of a petition for rehearing thereafter filed. Such contention is obviously without merit since to so hold would violate the plain provisions of the constitution of this state.

Once an appeal has been duly perfected to this court in any given cause, such cause is within the jurisdiction of this court until the same has been finally disposed of by the issuance of a mandate therein. Jurisdiction of such cause is vested in this court, however, and not in the various justices thereof or some of them. By virtue of the provisions of Article 7, § 3, of the Constitution of Oklahoma, a majority of the members of the Supreme Court shall constitute a quorum, and the concurrence of the majority of said court shall be necessary to decide any question. The filing of a petition for rehearing in any cause pending in this court presents a question to the court for its decision. Such question, by virtue of the constitutional provision above cited, can only be decided by the concurrence of the majority of the court. To grant con7 testants’ request that the question be decided by only a part of the court or a particular group of justices would clearly be in violation of the constitution and statutes of this state. While both sides to this controversy have a constitutional right to a judgment herein by a duly constituted court, neither side has a right, constitutional or otherwise, to a decision by any particular group of justices thereof.

It has been the settled policy and practice of this court since statehood that every member of this court upon qualifying shall immediately commence his participation in all matters then pending before the court. So far as we know, this is the first time such practice has ever been questioned. We are cited no constitutional provision, statute, or previous decision of this court which would constitute a basis for changing a practice followed for over 40 years. Contestants cite a number of cases for other jurisdictions, a few of which do seem to sustain their position. There is nothing in such cases that is controlling here, however. The rule adopted in such cases is one of judicial policy only. The most recent and comprehensive opinion in which the question here presented was considered by any court that we have been able to discover is that rendered in Glasser v. Essaness Theatres Corp., 346 Ill.App. 72, 104 N.E.2d 510, subsequently affirmed by the Supreme Court of Illinois on January 22, 1953, in 414 Ill. 180, 111 N.E.2d 124. In that case the court made a complete review and analysis of all the decisions bearing on the problem, including those cases cited and relied on here by contestants, and concluded that there was no merit in the contention advanced. We see no need to-repeat the comprehensive review contained in that case since the opinion therein is so complete, logical and persuasive that further discourse upon the question there treated is completely unnecessary, except to state that our views coincide with the views therein expressed.

Contestants’ motions directed at preventing duly qualified and acting justices of this court from participating in this case are therefore denied.

The judgment of the district court is against the clear weight of the evidence. It is therefore reversed with instructions to enter judgment upholding the validity of the will.

DAVISON, HALLEY, BLACKBIRD and JACKSON, JJ., concur. JOHNSON, C. J., and WELCH and CORN, JJ., dissent.