SUCCESSION OF CAPRITO v. MAYHEWNo. 85-634.
478 So.2d 243 (1985)
SUCCESSION OF Salvador CAPRITO, a/k/a S. Caprito, Joseph T. Caprito, et al., Plaintiffs-Appellants,
James MAYHEW, et al., Defendants-Appellees.
James MAYHEW, et al., Defendants-Appellees.
Court of Appeal of Louisiana, Third Circuit.
November 7, 1985.
Sanders & Owens, Alan Sanders, Orange, Tex., for plaintiffs-appellants. Humphries & Humphries, Guy E. Humphries, Jr., Alexandria, for defendants-appellees.
Before GUIDRY, STOKER and KING, JJ.
HISTORY OF THE CASE
This litigation was initiated as an action to annul the probated testament of Salvador Caprito. The plaintiffs basically raised three issues: (1) whether the Louisiana court had jurisdiction to probate the will, (2) whether the testamentary formalities were adhered to, and (3) whether the deceased had the mental capacity to execute a will. The trial court held the will to be valid. On appeal we reversed the trial court and held that the district court of Rapides Parish lacked jurisdiction to probate the will. Succession of Caprito,
The testator, Salvador Caprito, was born December 21, 1883, in Franklin, Louisiana, and died March 9, 1982, in Rapides General Hospital, Alexandria, Louisiana, at the age of 98. He was an unusual man who lived a rather solitary life. He amassed a substantial fortune during his life and while he lived a rather meager life, he made generous donations of huge amounts of money and valuable properties to persons and charities throughout his life. The latter part of his life, until he was in his nineties, was spent living in hotels with all of his belongings carried in a suitcase.
He had been married at one time to Annie Ehrhardt, later Mayhew. The marriage ended in divorce in Dallas, Texas, on December 14, 1915; however, there were two children born of the marriage. The defendant, Gertrude Caprito Daily was born during the marriage and the defendant, James C. Mayhew, a/k/a Noel Caprito, was born shortly after the divorce. Neither plaintiffs nor defendants had any contact with the deceased until he was an elderly man.
Nothing much is known about the decedent up until about 1955. He seems to have lived and conducted most of his business from 1955 to 1977 in Fort Worth, Texas. It was there in 1963 that William McKinney, an accountant, began keeping his books and assisting Salvador Caprito in handling his business affairs. In June, 1977, McKinney brought temporary guardianship proceedings against decedent and was named temporary guardian in July, 1977. At that time the testator was living with plaintiff J.T. Caprito in Franklin, Louisiana.
In October of 1977, Salvador Caprito executed a will in Texas, leaving his entire estate to the plaintiffs, Marguerite Caprito Dial and J.T. Caprito. In January, 1978, Mrs. Dial was named guardian over the person and estate of testator pursuant to the ruling of a Texas court in a permanent guardianship hearing held in December, 1977. Testator lived with Mrs. Dial until he fell and broke his hip in 1981. She was paid $891 per month to care for the decedent. This amount was later increased to $961.
Defendant Gertrude Caprito Daily's daughter, Helen Vaughn, applied to the court to replace Mrs. Dial as testator's guardian in April, 1978. The court granted the change in guardianship in June, 1978. She resigned in favor of her uncle, James C. Mayhew, in November, 1978. He remained the testator's guardian until testator's death in 1982. Mr. Mayhew had the testator moved to Hilltop I Nursing Home in Pineville, Louisiana in January, 1982, after hip replacement surgery in Lake Charles. On February 16, 1982, the testator executed a new will leaving his entire estate to his son and daughter, the defendants in this suit. Salvador Caprito died in Rapides General Hospital on March 9, 1982.
It is the will executed on February 16, 1982, which is at issue. The only questions which are before us for review concern the validity of the will and the mental capacity of the testator. Whether or not the formalities have been met in executing the will and whether or not the testator has the mental capacity necessary to execute a will are both questions of fact to be answered by the trial judge. It is well accepted jurisprudence that these factual decisions will not be disturbed unless they are clearly and manifestly erroneous. Succession of Barbe,
The will was confected pursuant to LSA-R.S. 9:2443 which provides for a statutory will for those with sight impairment or those who are illiterate. The will contains
On the face of the will itself the formalities have been met. Plaintiffs seem to argue that the witnesses should have a complete and exact recollection of the events surrounding the execution of the will. Since the will was attacked within three months of the death of the testator, the burden of proving that the formalities had been met were on the proponents, defendants in this case, of the will. LSA-C. C.P. art. 2932. The trial judge correctly stated that it would be a ridiculously high burden to expect the witnesses to have a complete and independent recollection of every event which occurred at the signing of the will. Riedel, et al v. Sharp,
While the proponents in this case have the burden of proving that the formalities have been followed, their task is eased by a presumption in favor of the validity of testaments in general. In Succession of Kilpatrick,
In this case all three witnesses and the notary testified to the circumstances surrounding the execution of the will. The trial judge, after observing their attitude and demeanor, determined that the formalities had in fact been followed.
Plaintiffs also complained that the testator had not declared that he could not read and sign the will. The trial judge held: "the testimony of the witnesses and the notary (along with the express declaration of the testator in the attestation clause of the will) is sufficient evidence to prove that the testator did indeed signify in some way the reason for not reading the instrument himself and for his inability to sign his own name." The trial court held that the statutory will formalities of LSA-R.S. 9:2443 were met and since we find no error we will not disturb that decision.
Plaintiffs also argue that Salvador Caprito lacked the mental capacity to execute the will of February 16, 1982. The burden of proving lack of capacity is on the party seeking to annul the will on that ground. The standard of proof imposed on the claimant is to prove incapacity by clear and convincing evidence. Succession of Lyons,
Testamentary capacity should be tested as of the time the will was executed. LSA-C.C. art. 1472; Stewart v. Branch,
The only expert testimony was from Dr. Ordinario who had been the testator's physician while he lived in Lake Charles. It was his opinion that the testator was suffering from organic brain syndrome, which is a deterioration due to age. It was his testimony that this condition caused confusion and disorientation. But, he also testified that on the many occasions when Salvador Caprito had been hospitalized, he had been confused and disoriented when he entered the hospital, but that this condition would clear up. By the time he was discharged he was alert and lucid. It is important to note that Dr. Ordinario did not have any contact with the testator after he left the hospital in Lake Charles, thus he could not testify, beyond mere speculation, to the mental condition of the testator on the day the will was executed.
All of the people who were in the testator's room on that day testified that Salvador Caprito was alert and knew what he was doing. Several of the people were neutral, uninterested parties, with no reason for any bias. The court could have found from this testimony that the testator executed his will during a "lucid interval."
Plaintiff would have the court ignore all of the lay witnesses who were present in favor of the expert medical opinion of Dr. Ordinario. They cite for support the Succession of Wright,
We find that case distinguishable in two ways. First, the medical opinion was based on the fact that incapacity was a result of drugs which were given in great quantity to reduce the severe pain of the testator. An opinion concerning the effect drugs have on the human system is indeed different from an opinion concerning the mental condition caused by a rather uncertain and unpredictable brain condition. Second, in
We find that the trial judge was correct in holding that the plaintiffs failed to overcome the presumption of mental capacity.
Thus, we affirm.
KING, J., dissents and assigns written reasons.
KING, Judge, dissenting.
I dissent from the finding by the majority that the decedent, Salvadore Caprito, possessed the mental capacity to confect his last will and testament.
The evidence is clear that Salvadore Caprito (hereinafter decedent) was 98 years old and suffering from organic brain damage because of deterioration due to old age. The decedent had been judicially determined mentally incompetent to manage his property and financial affairs in an adversarial court proceeding conducted in Forth Worth, Texas in 1977. The decedent was still subject to that guardianship proceeding and was under the custody and control of the guardian appointed by the Court, who was managing his person and property, at the time of his death. The decedent additionally had numerous other health problems, besides organic brain syndrome caused by advanced age, which consisted of congestive heart failure, arterioschlerotic heart disease, chronic anemia, and cerebral arterioschlerotic disease. These medical problems were getting progressively worse and were irreversible. The decedent had been confined to a nursing home for several months prior to his death because he required continuous medical care and attention. The evidence shows that the decedent's days of coherence and orientation were infrequent and that his days of incoherency and incompetency greatly exceeded his days of competency. The medical records of the nursing home generally show that the decedent was hard of hearing, had poor eyesight, was confused and disoriented and that these conditions continued until his death. The medical records in evidence show that on February 15, 1982, the day prior to the confection of decedent's will, that he was disoriented, not responsive, hard of hearing, and blind. On February 17, 1982, the day after the decedent's will was executed, the medical records in evidence describe him as being "totally helpless." Three attempts were made before the decedent's will was finally executed. On the first attempt, in the morning, after the Notary and an attorney talked to decedent they did not think that the decedent was capable of executing a will at that time and for this reason no attempt was made to execute the will. On a second attempt, shortly after noon, the will was unable to be executed when the Notary and an attorney discovered that the decedent had lost or misplaced his eyeglasses and could not see and the Notary and attorney had to return to their office to prepare another will to comply with the provisions of LSA-R.S. 9:2443, which provides for a statutory will for those with sight impairment and those unable to sign their name at the end of the will. The decedent's will was finally executed on the third attempt late in the afternoon of February 16, 1982.
Testamentary capacity should be measured as of the time the will is made. LSA-C.C. Art. 1472; Succession of Lyons,
In viewing the evidence contained in the record as a whole, including the testimony of the witnesses present at the time of the confection of the decedent's will, I am of the opinion that appellants have overcome by clear and convincing evidence the presumption of the decedent's capacity to execute a will and have proved that the decedent lacked the mental capacity to confect his will on February 16, 1982. At best, the evidence presented by the witnesses, present at the time the will was executed, was that the decedent was tranquil and calm. There is no evidence whatsoever to show a restoration of the decedent's mental capacity for a sufficient length of time to give certainty to his temporary restoration of reason. To the contrary, I find that the evidence clearly and convincingly shows that the decedent, both before, at the time of, and after confection of his will, lacked the mental capacity to reason, to understand the nature of the testamentary act, and to appreciate its effects.
For these reasons, I respectfully dissent.
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