Higbee v. Gilmore , 26 Utah 2d 44 ( 1971 )

HENRIOD, Justice:

Appeal from a judgment modifying a judgment with respect to a will contest. Remanded for a new hearing.

On controverted evidence, a signed and witnessed will was admitted to probate by a district judge who succeeded another district judge who had resigned, which latter had entered a judgment declaring the will to have been revoked. All this on exactly the same evidence and record.

One of the subscribing witnesses, who also drafted the will, at first did not remember its execution, but on examining his files, recalled the incident that occurred many years before, and was confident he had not prepared and executed two duplicate originals thereof. The first district judge, who later resigned to assume a different post, said that such a duplicate original had been executed and had been destroyed. The successor judge, who was appointed, and on the same record, amended the first judge’s findings, conclusions and judgment on motion therefor, and as a matter of law held the first judge’s conclusions and decree to have been in error, before he also was replaced by another and third judge in an election. This court has misgivings about such procedure, without any further evidence having been taken, — particularly when it was represented to us that the second subscribing witness to the will was available, — an important witness to the fact of whether there were two wills signed by the testatrix and whether both were witnessed by both the subscribing witnesses, in the presence of each other, etc.

The case is returned for a new and plenary hearing before the district court from which this appeal arose.

CALLISTER, C. J., and TUCKETT, ELLETT and CROCKETT, JJ., concur.