LOFTIN v. YANCEY

LOFTIN v. YANCEY
1937 OK 529
77 P.2d 107
182 Okla. 313
Case Number: 27527
Decided: 09/28/1937
Supreme Court of Oklahoma

Loftin
v.
Yancey

Syllabus by the Court.

¶0 1. WILLS--Review on Appeal of Will Contest--Sufficiency of Evidence.
In a will contest, this court will examine the whole record on appeal, and weigh the evidence; but the findings and judgment of the district court will not be disturbed unless such findings and judgment are clearly against the weight of the testimony.
2. SAME--Judgment Denying Probate of Will on Ground of Lack of Testamentary Capacity Held Sustained by Evidence.
Record examined. Held, the judgment of the trial court is not clearly against the weight of the evidence, but actually is supported thereby.

Appeal from District Court, Garvin County; W. G. Long, Judge.

Petition by C. T. Loftin to admit the will of John Stanley Yancey to probate, opposed by J. R. Yancey and others. From a judgment of the district court, affirming a judgment of county court denying probate of will, plaintiff appeals. Affirmed.

R. E. Bowling, of Pauls Valley, for plaintiff in error.
Champion, Champion & Fischl, of Ardmore, for defendants in error.

BAYLESS, Vice Chief Justice.

¶1 C. T. Loftin was guardian of the estate of John Stanley Yancey, an adult, incompetent ex-soldier. Yancey executed a will on the day of his death in which Loftin was named as chief beneficiary. The will was denied probate by the county court of Garvin county, and on appeal to the district court and trial de novo the will was again denied probate. This appeal followed.

¶2 The protest against the petition to admit the will to probate was based upon several grounds. The trial judges both exonerated the proponent of undue influence, menace, or duress. They both found that the testator was lacking in testamentary capacity, and it was upon this ground alone that the probate of the will was denied. This is the only issue we will notice.

¶3 When the testator died he was about 48 years of age. He was drafted into the military service during the late war, and it was necessary to seize him and force him into the army. While serving in France he was shell-shocked and gassed. Due to disabilities suffered in the line of military duty he received compensation from the government until the time of his death. His condition grew progressively worse by reason whereof his monthly allowance was increased more than once.

¶4 One of his brothers was appointed guardian for him many years ago. Later he resigned and Loftin was appointed. The testator lived first one place and another with his brothers and sisters or cousins. He seemed to have been very restless, and constantly on the move.

¶5 In the course of the last several years of his life, he was adjudged insane and was confined for a time at Norman, Okl. At least three or four times he was confined in a government hospital for mental and nervous diseases. The medical evidence shows he was suffering with hebephrenia at the time of his death and has been so afflicted for years. Maloy, Nervous and Mental Diseases (1935), defines this as follows: "Dementia Preacox. This is a term used to include a wide range of mental disorders which occur in early life * *. It is also called adolescent insanity and schizoprenia. * * * Dementia Preacox includes three types namely; Primary Dementia, catatonia, and hebprenia. The word hebprenia means a form of mental disorder or insanity coming on at the time of puberty, and marked by depression, gradual failure of mental faculties and moral deterioration with egotistic and self-centered delusions."

¶6 The evidence discloses that testator suffered delusions, thinking that some one was after him, a tendency to run from visitors, arming himself against threatened aggressions, and constant stomach pains attributed by him to some animal or insect biting his "Belly."

¶7 About the 17th day of September, 1935, testator was admitted to a hospital at Pauls Valley, Okl., where he died September 26, from typhoid fever. About three or fours hours before he died he executed the will in question. His nurse testified that from the beginning of his stay in the hospital he spoke of his desire to leave his property to Loftin. He referred to the matter at least five or six times. Finally she told Loftin, who in turn told his attorney, and the will was prepared. Loftin then took the will to one of the doctors attending the testator. This doctor told him it was his will and read it to him. He expressed satisfaction and it was executed, the doctor and nurse signing as witnesses. Testator was illiterate.

¶8 The issue before us is one of fact, touching upon the presence or absence of testamentary capacity.

¶9 Each side produced many witnesses, layman and expert. The trial judge found from this volume of evidence that the testator lacked testamentary capacity.

¶10 The function of this court is to review the record as though it was an equitable action. We will weigh the evidence, but we will not reverse the judgment of the trial court unless it appears clearly to be against the weight of the evidence. Porter v. Porter, 168 Okl. 645, 35 P.2d 938; In re Anderson's Estate, 142 Okl. 197, 286 P. 17, and other Oklahoma cases.

¶11 After reviewing this record we cannot say that the judgment is against the clear weight of the evidence. Two judges saw the witnesses and had an opportunity to consider their testimony. Each came to the same conclusion. We are unable to reach any other conclusion.

¶12 There are a number of factors which bring us to this conclusion: First. We doubt whether the proponents actually established testamentary capacity. The attending physician refused to qualify as an expert on mental cases. His testimony was weak. The nurse testified that he was of sound mind. Second. The proponents' case was overwhelmed both in quality of evidence and number of witnesses. Third. His previous actions. These are not necessarily controlling, but may be resorted to for enlightment. Incompetency to handle affairs by reason whereof a guardian is appointed does not preclude testamentary capacity. Exedine v. Red Corn, 108 Okl. 1, 232 P. 46. There is generally a presumption of capacity. In Re Nitey's Estate, 175 Okl. 389, 53 P.2d 215. But where insanity has been shown to exist, and is described as of a chronic and progressive nature, a presumption of continuance arises. Alexander's Comm. on Wills, vol. 1, p. 487, § 357. Fourth. In the final analysis, the presence or absence of testamentary capacity must be determined as of the time the will is executed. In re Wah-kon-tah-he-um-pah's Estate, 108 Okl. 1, 232 P. 46, and other cases cited under Wills k21-55, vol. 14, Oklahoma Digest by West Publishing Company. Every physician who examined testator said his nervous disorder was of a type that precluded testamentary capacity. The attending physician said the testator was in a stupor a part of the day of his death. The will was executed three or four hours before death. The trial judge placed great stress upon the nearness to death.