DocketNumber: No. 15,704.
Citation Numbers: 184 P.2d 138, 117 Colo. 54
Judges: PER CURIAM.
Filed Date: 7/28/1947
Status: Precedential
Modified Date: 1/12/2023
THIS is a will contest. Testator was Clayburn L. Wilson, who left all of his estate to the defendant in error, who was also the proponent of the will. When the will was offered for probate, caveat was filed by plaintiffs in error, heirs at law of decedent. This caveat alleged that the will was not drawn, executed or witnessed in accordance with law, and that the testator was not of sound mind and memory and that the will was procured by the undue influence of defendant in error.
Issue was joined on these matters and the trial court, sitting without a jury, resolved the issues in favor of proponent of the will and directed that it be admitted to probate and record and from this judgment the writ of error is sued out.
Testator was a man advanced in years, a brother-in-law of proponent, and made his home with proponent. Defendant in error had been executor of the estate of the decedent's wife, and there is testimony in the record to the effect that both decedent and his wife, in considering the disposition of their property after both had passed away, had agreed that it should go to defendant in error.
The will in question was executed in the office of the clerk of the district court of Douglas county and he, together with a Mr. Clarke, who happened to be in the office, witnessed the same. Mr. Weston, the clerk, read the *Page 56 entire will, including attestation clause, over to testator, who declared that it was the way he wanted it.
[1] Whether or not the deceased was possessed of testamentary capacity was a matter of fact to be determined by the trial court, and upon conflicting testimony the court resolved that issue in favor of proponent and determined that Mr. Wilson possessed testamentary capacity at the time the will was executed. The evidence justified the finding.
The same may be said regarding the issue of undue influence. The trial court saw and heard the witnesses and resolved the issue thus presented in favor of the proponent.
[2] Undue influence cannot be inferred alone from motive or opportunity. There must be testimony, direct or circumstantial, showing that undue influence not only existed, but that it was exercised with respect to the making of the will itself. Allen v. Rentfro,
[3] The only other issue presented by the record relates to the execution of the will, and counsel for plaintiffs in error contend that under the law it is essential that the testimony on the probate of the will should show that the testator personally requested the witnesses to affix their signatures as attesting witnesses.
In Maikka v. Salo,
[4] In the case of Aquilini v. Chamblin,
There is ample evidence in the record to justify the findings of the trial court and its judgment is hereby affirmed.
In this case acknowledgment is made of the gratuitous and valuable service of the Hon. Francis J. Knauss, district judge, as referee under our Rule of June 9, 1947.