Ellerbeck v. Haws , 1 Utah 2d 229 ( 1953 )

HENRIOD, Justice.

I respectfully dissent. The trial court decided the document in question was its author’s binding will. Many times this court has said that the lower court’s decision based on a factual situation will not be disturbed unless there is no competent evidence to support it. In this case, therefore, the majority is saying there is no such competent evidence. Many times this court has said that the trial court is in a better position to adjudge of the credibility of witnesses and the weight of the evidence. Here the majority opinion says the trial court erred in its appraisal thereof. Many times we have stated that testacy rather than intestacy is favored, and that we will construe ambiguous documents or those which may have words of dual interpretation, in favor of testacy rather than in favor of intestacy.

The writer of this dissent believes the words used by decedent are as consistent with the happening of the condition of the will as the contrary, and that the main opinion is confusing the terms “condition” and “contingency.”

Mr. Ellerbeck set forth a condition which was satisfied, in my opinion, not a contingency that failed to happen. He did not say “if I die in the hospital.” He did not say “if I die from digestive troubles.” He simply prefaced a phrase “in the event I do not survive” with a statement of the facts that he happened to be in a hospital and that he was suffering from digestive cmd other troubles. He died in 7 months, — certainly from the digestive disorder or other troubles. There is no evidence that he died from some cause other than physiological troubles, such as being hit by a train and the like. The main opinion puts great weight in the testimony of a lay witness, unskilled in medicine, who simply said, in answer to leading questions, that she would say the decedent had recovered and that he appeared to be all right, which has no expert probative value that he died from something other than digestive or other troubles. The trial court obviously took no stock in what she said.

The fact of the matter is, that the man was sick, to such extent, that he was “nigh unto death” when he was hospitalized, he having died within 7 months. After he went home and the document was returned to him, so that he could have revoked it by tearing, burning, etc., he deliberately put it in the cupboard and told the beneficiary thereunder that he would show- her where he would put it. He put it there and left it there, were it was found after death. His statement and his act concededly could not revive a will no longer valid, but they could be convincing to a trial court in interpreting the intent of the decedent at the time he prepared the document and also in the interpretation of ambiguous language therein.

It appears that the main opinion also has chosen facts in a light most favorable to the loser in this case in arriving at its conclusion. Many times this court has said in similar situations that we must look at the facts in a light most favorable to the winner.

Instead of applying the elementary rules often enunciated by this court, which are pertinent in a case like this, it would seem that the majority opinion simply by-passes them in favor of an arbitrary interpretation of language obviously capable of different interpretations, — in favor of establishing intestacy rather than testacy.

The main opinion contends that there are no facts in the record indicating that decedent died of the sickness for which he was hospitalized. There is nothing in the record that indicates that he did not die of such sickness. It affirmatively appears that he was in the hospital because he was sick. His putting the will, unrevoked, in the cupboard is a significant fact, and the fact of death shortly thereafter is even more significant. Taken all together it is not unreasonable to conclude that he died of digestive or other troubles, satisfying the condition of the document which the lower court admitted to probate.