Harris v. Schoonmaker , 50 Wyo. 119 ( 1936 )

ON PETITION FOR REHEARING A petition has been filed on behalf of the appellant and contestant below expressing dissatisfaction with the opinion and judgment of the court in this case and requesting that a rehearing be granted. In a large measure the material thus submitted consists of a reargument of several of the points which were heretofore presented at length in counsel's brief and thereafter given full and careful consideration by this court. The rights of the parties would not be more thoroughly clarified, nor would the profession be aided, by enlarging and amplifying those matters at this time. We are thoroughly satisfied that in directing an affirmance of the judgment of the district court of Fremont County, a result was reached entirely consonant not only with the law of the case, but, also, with reason and justice.

The petition for a rehearing itself, however, presents for our consideration some things which require attention, the first of these to be mentioned being the suggestion of counsel that this court could not rightly examine the original certified record on file herein and refer to testimony in evidence not contained in the document heretofore filed by appellant in this cause and designated "Abstract of Record on Behalf of Appellant." It is said that this is so because of our Rule 37 requiring the preparation of abstracts of record. Counsel is in error. The rule mentioned will be searched in vain for any language which would justify any such contention. Its requirements by its terms are imposed upon the parties and their counsel.

The purpose of an abstract of record is to aid the court in the dispatch of its business, by accurately and concisely presenting those portions of the record which deal with the questions which all the parties involved desire the court to consider — not merely the evidence in behalf of the party bringing the case here — thereby releasing the court from the labor of searching through the record, often voluminous, to ascertain such necessary parts. 4 C.J. 386 and cited cases; 2 R.C.L. 155. When an abstract is carefully prepared through intelligent compliance with the rule, it, like an ably constructed brief, is of the greatest assistance to the court in speedily and accurately disposing of its business. When briefs and abstracts are not well done they afford very little help, and, frequently, merely waste the time of the judges who try to use them. It is a source of satisfaction to remark that the overwhelming majority of the legal profession of this state realize that this is so.

The original record, certified as true and correct, is always on file in the case here, and it must invariably be looked to as the arbitrator of disagreements between parties as to the accuracy of abstracts submitted under our rule. In some jurisdictions abstracts are intended to and do stand as a substitute for and in lieu of the record itself. See Craig v. Scudder, 98 Mo. 664, 12 S.W. 341. Our practice is not so ordered, and while this court is not bound to go to the record, it may always do so, in its discretion, if it desires fuller information than appears in the abstract or abstracts submitted by the parties. Denver etc. R. Co. v. Vitello, 34 Colo. 50, 81 P. 766.

In the case of In re St. Clair's Estate, 46 Wyo. 446, 28 P.2d 894 (a comparatively recent case), we had occasion to consider an abstract of record prepared by the counsel who now represents the appellant in the instant litigation. We there said:

"Rule 37 of this court, in the course of its requirements, directs that:

"`In the case of oral testimony and depositions, the substance shall be reduced to narrative form except where, with respect to material portions of the record, it is deemed necessary to use the exact language thereof.'

"This was not done. Even the names of the witnesses testifying are in some instances omitted from the abstract, and parts only of their testimony are set forth. We find, also, that argument on the merits of the case is undertaken to be woven into the supplemental abstract with statements taken from the record itself. This should not be done. The proper place for argument, it should hardly be necessary to say, is in the submitted briefs of the parties. Under the decision of this court in Simpson v. Occidental Building Loan Ass'n, et al., 45 Wyo. 425, 19 P.2d 958, we might very properly decline to grant leave to file the supplemental abstract, and forthwith dismiss the appeal."

This was an earnest effort on our part to aid counsel in thereafter reaching a proper understanding of and a due compliance with the plain language of Rule 37. The record in that case was a short one, and we accordingly examined it, notwithstanding the fact that the abstract submitted disregarded the rule. However, it was expressly stated that such action on our part would not be considered as a precedent for doing so in the future.

In the case at bar, the testimony in the original record comprises about two hundred fifty typewritten pages, of which nearly one-half was testimony introduced on behalf of appellant. Yet, we find appellant's abstract of record, purporting to cover all the testimony in the case, embraced less than four and one-half pages of typewritten material. This only was submitted, despite the fact that one of the main questions in the case was whether the court erred in directing a verdict against appellant, thus requiring of us a thorough review of the evidence.

The testimony of the medical witnesses, Dr. Holtz and Dr. Smith, was outlined in the opinion from our examination of the original record. Appellant's abstract of their testimony reads verbatim:

"Dr Holtz —

Q 1398 — pg 356 — her hearing was prbably 70 or 80% A 7/10ths

Q 1414 — pg 357 — She was quite ill — one disease was bronchitis9Q 1418)

Dr Smith

Q 1438 — pg 360. he treated her June 28-31 — July 7, 1931; July 30 1931 — Aug 21, 1931 Feb 9, 1932.) This evidence shows illness July 30, 1931, and a physician attending her the day before the will was executed."

The testimony of E.E. Coon, one of the witnesses to the will, as disclosed by the original record, is also set forth in condensed form in the original opinion. The verbatim statement in appellant's abstract of this material is:

"Q 1816, pg 396, was a leading question, and prejudicial, and suggestive.

Q 1818 — Mrs Lane never talked about the will until after it was executed.

Q 1829 — P 397-8. Coon tells what she said afterwards, as tho she said it at the time the will was executed. And the jury so understood. Motion to strike overruled.

Q 1834 — called for conclusions — 1835 Same

Q 1836 was improper and prejudicial.

Q 1837. Was calling for a conclusion of the witness, and not giving facts for the jury.

Q 1838-9-40 were of the same character, and was merely calling for the opinion of the wintess, his conclusion and not giving facts, from which they could determine whether there was undue influence.

Q 1862. She mentioned these other estates after that time.

Q 1865-6 Mrs Lane wanted the estate protected, so it could not be frittered away.

Q 1869-70. Mrs Lane could not have understood the will, because it provided that the very thing she sought to make impossible, could be done. The trustee, could, that is had opportunity, and every where, every day, trusted bankers, trusted fiduciaries do the same thing. The question shows she had over confidence in Schoonmaker, and did not have the ability witness Coon attempted to picture. She did not fully understand the will and the possibilities for frittering away, and preventing it from ultimately reaching her desired legattees. And this was for the jury.

Q 1872. Mrs Lane had extreme if not over confidence.

Q 1881 — Witness Coon, read the will, heard it read, and got a pretty good idea of it.

Q 1886 — pg 405. Witness Coon knew A D and Sarah Lane had made wills. Did not know the contents, but knew they were very kind to Albert McLaughlin.

Q 1890. Coon says they did not discuss at all the property

Q 1895. Coon says Mrs Lane had a wonderful keen mind. And witness Coon himself would not sign such a will unless Schoonmaker was trustee.

Page 407. Trustee Schoonmaker is using the estate himself for his private business soon after his appointment. Q 1903 The court excluded further evidence on this point."

It is quite evident from the foregoing illustrative excerpts from appellant's abstract that neither Rule 37 of this court nor its opinion in the St. Clair case supra, have been regarded by counsel in the preparation of the abstract submitted herein. It is likewise perfectly plain that the cause was subject to dismissal pursuant to said Rule and our decisions thereunder. Simpson v. Occidental Building Loan Association, 45 Wyo. 425,19 P.2d 958; In re St. Clair's Estate, 46 Wyo. 446, 28 P.2d 894; Bosick v. Owl Creek Coal Co., 48 Wyo. 46,41 P.2d 533. We have repeatedly said that we prefer to dispose of cases on their merits rather than because of infractions of rules of practice. That is the reason we took the trouble to examine the long record in the case at bar when we found the submitted abstract of record practically useless. We cannot continue to do this if the business of this court is to be promptly disposed of as it should be. It would seem that more drastic action must hereafter be taken if counsel continue to disregard our rules and the warnings contained in the opinions rendered and printed in our state reports for ready access by all interested. If opposing counsel do not move for a dismissal — as in this case could very properly have been done — the court itself will be compelled to take that action as the right of the matter may appear.

The petition for a rehearing also asserts that the opinion on file "quotes the attesting witnesses, who are interested parties, to the effect `that the testatrix fully understood the will'", and that such statements were inadmissible as merely opinions of these witnesses. Counsel is again in error. As a matter of fact, these witnesses were quoted as testifying that Mrs. Lane, after talking over the provisions of the will with them before she signed it, told them at that time that the will "was exactly as she wanted it" and that "it suited her"; and that "many times after the execution of the will" the testatrix expressed her "absolute satisfaction" with it to the witness Coon and explained to him "the reasons why she had directed that the several legacies and trustee provisions be placed therein."

It is held in many jurisdictions that "where the state of the testator's mind is in issue that is a proper subject of inquiry, and his declarations indictative thereof are admissible," and, also, that his declarations are admissible to show his knowledge of the contents of the will. 68 C.J. 1006. As remarked by the supreme judicial court of Massachusetts in Shailer v. Bumstead et al., 99 Mass. 112, 120:

"The declarations of the testator accompanying the act must always be resorted to as the most satisfactory evidence to sustain or defend the will whenever this issue is presented. So it is uniformly held that the previous declarations of the testator, offered to prove the mental facts involved, are competent. Intention, purpose, mental peculiarity and condition, are mainly ascertainable through the medium afforded by the power of language. Statements and declarations, when the state of the mind is the fact to be shown, are therefore received as mental acts or conduct."

There cannot be the slightest doubt that Mrs. Lane's statements, as testified to by these witnesses on this point, were admissible evidence of the "most satisfactory" kind to the effect that she fully understood the provisions of the will in question.

Appellant maintains that the opinion of the court in this case was erroneous in considering testimony given by respondents, and that in reviewing the action of the trial court in granting the motion for a directed verdict only the evidence introduced in behalf of the contestant could be considered, with all reasonable inferences to be drawn from it. This proposition is inaccurate, and the contention cannot be upheld. 64 Corpus Juris 443 states the rule as to what evidence should be considered on a motion to direct a verdict in this language:

"The testimony to which the court is to look for circumstances making out the case of the adverse party includes the whole testimony in the case and is not limited to that offered by such party but extends as well to that produced by the movant."

That this should be the rule is evident when it is considered that the testimony of the movant may either supply a defect in that offered by the adverse party in support of his case or explain it in such a way as conclusively to render it utterly and completely ineffective. It is assuredly the duty of the court to survey the entire evidence in the case, where, as here, a motion to direct a verdict was made after the evidence of the parties had all been introduced. If this is not done, an unjust and inaccurate result might easily be reached.

It is true that all evidence favorable to the party adverse to the motion must be regarded by the court in the disposition thereof and, also, all reasonable inferences which may be deduced therefrom. But the inferences must be reasonable and legitimate. They cannot be strained or the result of mere conjecture or surmise. There must be some proper connection between the fact proven and the inference drawn. In the recent case of Antonowich v. Home Life Insurance Co., (W.Va.) 179 S.E. 601, 603, it was pointed out that:

"While the inference to be deduced from evidence is ordinarily a question for the jury, the sufficiency of the evidence to warrant the inference is a question of law for the court. 64 C.J., subject Trials, § 317. The fact inferred should attend naturally and rationally the fact proven. Central of Ga. Ry. Co. v. Teasley, 187 Ala. 610, 617, 65 So. 981. `It is not enough that the facts proven permit an inference of a certain other fact sought to be established, but the inference must be the only one which can fairly and reasonably be drawn from the facts. * * * And naturally so, else the jury would be free for guesswork.'" (Citing cases.)

In Campbell v. Washington Light Water Co., 171 N.C. 768,88 S.E. 630, it is said:

"Evidence which shows it possible for the fact in issue to be as alleged, or which raises a mere conjecture, is not sufficient to be left to the jury. Byrd v. Express Co., 139 N.C. 273,51 S.E. 851; State v. Vinson, 63 N.C. 335.

"As is said by Mr. Justice Walker in Campbell v. Everhart, 139 N.C. at page 516, 52 S.E. 201:

"`The sufficiency of evidence in law to go to the jury does not depend upon the doctrine of chances. However confidently one, in his own affairs, may base his judgment on mere probability as to a past event, when he assumes the burden of establishing such event as a proposition of fact, and as a basis for the judgment of a court, he must adduce evidence other than a majority of chances that the fact to be proved does exist. It must be more than sufficient for a mere guess, and must be such as tends to actual proof.'"

The same court in Jones v. Bagwell, 207 N.C. 378, 177 S.E. 170, more recently remarked that:

"It is well settled that the evidence must be more than a scintilla to be submitted to the jury. If it only raises a suspicion, a conjecture, a guess, a surmise, a speculation, it is not sufficient. Denny v. Snow, 199 N.C. 773, 774, 155 S.E. 874."

Finally this court, in Wright v. Conway, 34 Wyo. 42,242 P. 1107, in denying a petition for rehearing, has adopted a similar view, for it was there said:

"Guess-work cannot be substituted for evidence or inference, for `an inference is the conclusion drawn on reason from premises established by proof. In a sense, it is the thing proved. Guess-work is not.' Whitehouse v. Bolster, 95 Me. 458,50 A. 240."

The evidence relied on by contestant to establish her position relative to the competency of the testatrix to make the will under consideration, was fully reviewed in the opinion filed. It is perfectly obvious that these facts, viz., that the testatrix was blind, was eighty-one years of age, did not have an altogether normal hearing, had a physician call on her the day before the will was signed, disliked her former daughter-in-law, Mrs. Baerwald, assuming that to be true as testified to by a witness for contestant, the use of Mrs. Baerwald's former name of Lane in the will designating her as a legatee thereunder, and the failure to name appellant as one of the legatees of the will, neither separately nor collectively would, without more, warrant a jury in finding the testatrix incompetent to make the will. Such a finding, if made, upon such evidence, would have to be the result of guess-work simply and pure conjecture. Such a verdict would have no reasonable justification. We have no hesitation in declaring that property rights may not thus be disposed of in the courts of this state.

Our conclusion accordingly is that the petition for a rehearing should be denied.

Rehearing denied.

KIMBALL, Ch. J., and BLUME, J., concur.