In Re Groves'estate

PER CURIAM.

Stuart Johnson Groves died June 27, 1953, in Wesley Hospital in Oklahoma City at the age of 74 years, leaving an instrument purporting to be his last will and testament, dated April 10, 1953, in which he specifically named but omitted from participation in his estate his. two sons, Eseral Groves and William Groves. They are the contestants. The purported will then left an undivided one-half interest of the estate of deceased to his widow, Mattie Nora Groves, and devised the remaining one-half interest to Mattie Nora Groves, to be held by her as trustee, in trust for the use and benefit of his step-grandchildren, Raymond Charles Payne and Regina Beth Payne, the whole of said trust to vest in the survivor upon the death of either, and each said beneficiary to receive his or her proportionate share of the trust on attaining majority. The widow, and Ray C. Payne, as father and next friend of said two step-grandchildren are the proponents of the will.

The instrument was offered for probate in the County Court of Pontotoc County. Objection was filed thereto on the grounds of mental incapacity, incapacity by reason of drugs, and undue influence. Upon hearing had thereon the County Court denied probate. Upon appeal and trial de novo the District Court made findings of fact and conclusions of law, general in form, sustaining the contentions of the contestants and denying the will to probate. Thereupon proponents filed a motion for new trial and from the trial court’s order overruling same have perfected this appeal.

The only question here presented is whether or not the trial court’s decision denying probate of the will is against the clear weight of the evidence.

We have many times said that a will contest is a case of equitable cognizance, and that, on appeal, this court will examine the whole record and weigh the evidence. In re Estate of Wadsworth, Okl., 273 P.2d 997.

It is evident that contestants claimed, and the trial court found, that the deceased, at the time of the execution of the will, was incompetent, in that he was of unsound mind, and so under the influence of narcotic drugs as to deprive him of normal reasoning, thereby rendering him incapable of knowing the disposition of his estate; and at the time of the execution of the will was under undue influence, menace and duress.

After a careful review of the record in this case, which is voluminous, we cannot agree with the contentions of the contestants, nor the findings of the trial court. It is apparent that both the County Court of Pontotoc County and the District Court on appeal based their respective decisions on opinion evidence of two doctors in answer to hypothetical questions, with reference to the amount of narcotics given to deceased the day and night prior to the execution of the purported will, his physical condition, and the testimony of contestants of the friendly relations that had always existed between them and their father.

We.here note that one of the doctors testifying for contestants had never seen or talked to deceased and on cross-examination stated that his professional opinion, as to testamentary capacity of the deceased, was largely influenced by his own personal prejudices against a man disinheriting his own children. The other doctor had seen the deceased but one time some five months prior to the execution of the will but wanted it understood that he was giving his opinion based entirely on the clinical records as he interpreted them. Both doctors testified that the doctors in attendance upon deceased were better qualified to determine the mental capacity of deceased than were they who had not seen him.

We are also impressed with contestants’ lack of testimony relating to undue influence. All such testimony fails to arise to that degree of proof necessary to show that the free agency of the testator had been destroyed or that the will of another had been, at the time of the execution of the will, substituted for that of deceased. In reference thereto we must here state that this court has frequently held that, “undue influence” such as will invalidate a will, must be something which desroys the free agency of the testator at the time when the instrument is made, and which, in effect, substitutes the will of another for that of the testator. It is not sufficient that the testator was influenced by the beneficiaries in the ordinary affairs of life or that he was surrounded by them and in confidential relations with them at the time of its execution. Mere general influence, not brought to bear on the testamentary act, is not undue influence; but, in order to constitute undue influence, it must be used directly to procure the will, and must amount to coercion destroying the free agency of the testator. Mere suspicion that undue influence was brought to bear is not sufficient to justify the denying of a will to probate. See Kindt v. Parmenter, 83 Okl. 116, 200 P. 706, and McClure v. Kerchner, 107 Okl. 28, 229 P. 589.

Before considering the evidence which we think is decisive of the issues here presented, we first consider the established principles of law pertinent to testamentary capacity. This court has consistently held that a testator has a sound mind for testamentary purposes when he can understand and carry in mind, in a general way, the nature and situation of his property, and his relation to the persons around him, to those who - naturally have some claim to his remembrance, and to those in whom and things in which he has been chiefly interested, and that he must understand the act which he is doing and the relation in which he stands to the objects of his bounty and to those who ought to be in his mind on the occasion of making his will. See In re Mason’s Estate, 185 Okl. 278, 91 P.2d 657, and cases therein cited.

There is no arbitrary test of testamentary capacity. Being a question of fact, it must be determined from the condition of the testator’s mind at the time of the making of the will. In determining that question, a presumption of sanity will be indulged; and prior and subsequent acts have bearing only to the extent of assisting in determining the mental status of the testator at the time of the execution of the will. In re Holmes’ Estate, Okl., 270 P.2d 320.

The law does not require that a testator, in making disposition of his property, shall be humane or even just. Nor does the right of a testator to dispose of his estate as he likes depend on the justice of his prejudices. If he possesses the requisite mental capacity, he has the right to make an unequal distribution of his property among his heirs or to give it entirely to strangers. And under the law of this state where it appears from the will itself that it was the clear intent of the testator to disinherit or exclude his natural children from participation in his estate, such act in itself will not vitiate the will. See 68 C.J. Wills, § 51, page 452, 94 C.J.S. Wills § 35, and In re Adams’ Estate, 203 Okl. 377, 222 P.2d 366.

It is here evident, that the testator was a person of unusually strong characteristics; prior to his last illness a man of full physical strength, deep feelings and emotions; a forceful individual with a strong will, not easily influenced. It is apparent that he was a person who did his own thinking, determined his own actions and did what he wanted to do. By reason of his desire to work and his carefulness in his business dealings he had built a size-able estate. There is no question that during his life with his first wife, he and his sons enjoyed the best of companionship and feelings toward each other. Such mutual feelings between the testator and his sons (the contestants) seemed to exist until January, 1947, at which time testator was divorced from his first wife and their property divided equally between them. From this time on there is evidence oí only one visit between testator and his son William, and that at the instance of testator while William was in a hospital as a result of military service. Cordial relationship seemed to exist between testator and his son Eseral until 1949, after which time they spoke to each other only three times, twice in chance meetings on the street, and once for a period of approximately 10 minutes, nine days after execution of the will in question. This last mentioned visit was the only visit by either of contestants with testator during his last illness.

Various witnesses, including Dr. Dean, family physician of testator, and Reverend Lambert, minister of testator’s church, testified that in conversation with testator, many weeks prior to execution of the will, he had informed them that his sons were well fixed, would be amply provided for from his first wife’s estate and that he intended for his second wife and his two step-grandchildren to have his estate. The record also discloses that there was a deep and loving affection between testator and his second wife and especially between testator and his two step-grandchildren. Various witnesses testified that from 1950 on testator took both children with him whenever he was inspecting his farm and that they were constantly in attendance with him on occasion of visits to their home.

There is no question that testator’s last illness began in November, 1952. At that time he entered a hospital in Ada for a comparatively minor operation. He was discharged therefrom and readmitted on December 28, 1952; recovering he was discharged but returned thereto on March 22, 1953. He was immediately transferred to Wesley Hospital in Oklahoma City. At this time he was in acute pain, his abdomen badly distended, and minor surgery performed to relieve this condition. On April 7, 1953, an operation was performed known as a colostomy. It was then found that testator was suffering from cancer which had attached itself to the abdominal wall. Postoperatively, on April 9, 1953, he was given demerol and luminal to relieve pain, and on April 10, 1953, at about 9 :30 A.M. was informed by his attending physician that this might be his terminal illness. He thereupon requested the doctor to get him a lawyer so he could make his will. A lawyer was sent for who talked to testator privately and at 4:00 P.M. of that same day returned with the typewritten will and in the company with his secretary. The attorney, his secretary, Dr. Dunn, the attending physician, and a registered nurse, all went to testator’s room where the secretary was told to take down everything that occurred in the room. These parties and testator were the only parties in the room. The attorney asked some preliminary questions. In response thereto testator informed the attorney that he had requested him to draft his will giving one-half of his property to his wife and the remaining one-half interest to his two step-grandchildren; that he had two sons, whom he named but wished none of his property to go to them. The will was then read to decedent, paragraph by paragraph. As each paragraph was read decedent indicated it as his desire. After the instrument was read the decedent signed it with the assistance of the attorney, who he asked to help guide his hand, and in the presence of Dr. Dunn, and the registered nurse, Mrs. Evalyn Hofcrer. He declared the instrument to be his last will and testament and requested the attorney, doctor and nurse to sign as attesting witnesses. This they did in his presence and in the presence of each other.

As to testamentary capacity of the deceased, we think there can be no question. The attesting witnesses as well as two other doctors who were in attendance upon testator on the day of the execution of the will; several nurses; a friend and neighbor, who visited with testator that evening, and the attorney who prepared the will, all testified that testator was mentally competent, and not under the influence of drugs; believed he knew of what his property consisted and who his relatives were; knew the persons in attendance upon him, and was sufficiently alert to understand the act of making a will. In fact, all the doctors who testified were highly impressed with the strong will and forceful determination of testator to make his own decisions and to know and understand everything that was going on. Significant to us, and a matter which we think justifies such opinions, is the evidence of testator’s personal attorney, Clayton Carder, which discloses that he visited with testator in private on May 16, 1953, which was thirty-six days after execution of the will, and at this time testator informed him that he had made a will; that he wanted Carder to examine it to see if it was legally drawn. We can but attribute this to the natural inclination of a person calling on his legal advisor of long standing in whom he has confidence over one unknown to him. This attorney further testified that he obtained a copy of the will and after examination notified the testator by letter, under date of May 27, 1953, that the will was properly drawn.

Although there is testimony herein that the testator became irrational on at least three occasions while he was in Wesley Hospital, one of such occasions being in March prior to the execution of the will, the other times in May and June after its execution, the evidence of proponents is uncontradicted, except as hereafter shown, as to testator’s demeanor and appearance and ability to understand the character and extent of his property and the disposition he intended to make of said property when discussing the preparation of a will with the attorney and at the time of executing the same.

Eseral Groves’ wife and her sister who had visited testator on April 9th, and on other occasions before and after April 10th, and Eseral Groves who had visited his father on the 19th of April, were all of the opinion and testified that testator was mentally incapable of writing and executing a will on April 10th.

Under the evidence as we view it, and the authorities heretofore discussed, we must hold that the judgment of the trial court is against the clear weight of the evidence.

The judgment of the trial court is reversed and the cause remanded with directions to admit the will to probate.

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