Gertrude Louise Richards died in Salt Lake City on June 30, 1954, leaving an estate valued in excess of $330,000. By a will executed March 20, 1946, she made a number of minor bequests and devised the principal portion of her estate one-half to her sister, Mrs. Janet Parker, and the other half to her nieces, Mrs. Catherine Richards Howell and Mrs. Eleanor Richards Schneider, the children of her deceased brother. The will also provided that in the event Mrs. Schneider predeceased testatrix the Schneider children would succeed to the bequest of their mother. The latter died in 1953. By a purported codicil executed five days prior to her death, testatrix cancelled the bequests to Mrs. Howell and the Schneider children, giving them in lieu thereof only $10,000 to Mrs. Howell and $5,000 to each of the Schneiders; Mrs. Parker was named residuary legatee.
The will was admitted to probate without objection, but Mrs. Howell and the Schneider children (hereinafter called the contestants) objected to admission of the codicil. A jury found that at the time the codicil was executed testatrix lacked testamentary capacity. A judgment was entered in accordance with that finding. Mrs. Parker (the proponent) appeals from that verdict and judgment.
Appellant relies on two main points for reversal: First, that the jury was not properly instructed that the burden was upon the contestants to prove lack of testamentary capacity; second, that there was not sufficient evidence to sustain the verdict that testatrix lacked testamentary capacity.
Respondents do not question that the law as established in this jurisdiction is that the burden of showing lack of testamentary capacity was upon the contestants.
Six of the eight jurors found in favor of Proposition 2.
The function of an instruction on burden of proof is to tell the jury how it should weigh the evidence. Where the evidence is so equally balanced that it is impossible to say on which side lies the greater probability of truth, or where the preponderance of the evidence is against the truth of a certain proposition, a verdict must be returned against the party who has the burden, because he has failed to show that his allegation is more convincing as to its truth, when weighed against the evidence opposed to it.
In considering the sufficiency of the evidence it is meet to first treat certain issues relating to its admissibility. A factual background is required: Testatrix was 78 years of age. She had been confined to a hospital from May 21, 1954 to the date of her death for treatment of uncontrolled diabetes. The disease was never brought under control during her stay in the hospital, and she fluctuated between diabetic coma and insulin shock. Her condition was aggravated by hardening of the arteries; a grossly enlarged heart that resulted in heart failure; she had fluid in the lungs and a shortness of breath that necessitated administration of oxygen during her stay in the hospital; suffered from a marked mineral deficiency, was debilitated by frequent nausea and vomiting and was incontinent. It was necessary to supply her food and liquid needs intravenously. Her condition continued to deteriorate during her confinement and until her death on the 30th of June.
Proponent assigns as error the admission of the hospital records, claiming that they were incompetent because hearsay. This same issue was presented in Clayton v. Metropolitan Life Ins. Co.
In the instant case there was adequate foundation from which the trial judge could find the records credible, reliable and hence, admissible. The medical records librarian testified that she was the custodian of the records, and that although she did not make the entries herself, she was familiar with them and that they were prepared in the ordinary course of hospital business.
Both the Clayton case, supra, and State v. Davie,
Another problem respecting the admission of evidence relates to questions put to Dr. Currier, a psychiatrist, who testified concerning testatrix' mental competency. He never saw her and his testimony, therefore, was necessarily based on hypothetical questions. The proponent argues that the doctor was permitted to base his testimony upon abstractions and conjectures which had no basis in evidence, particularly, that he used the opinions, inferences and conclusions of others set out in the hospital records. Our decision that such records were properly admitted largely disposes of the proponent's claim that the question consisted of abstractions and conjecture. It appears that the hypothetical question was not an unfair summary of the condition of testatrix as reflected by the hospital records supplemented by the testimony of the physicians who attended her. Concededly there was dispute as to whether some of these conditions actually existed, but this court has long recognized that where the facts are in dispute, hypothetical questions may be framed either upon all the facts of the case, or upon facts which fairly represent the theory of the party producing the expert.
The remaining claim of error in regard to the admission of evidence is that Dr. Currier, the psychiatrist, was permitted to state that the deceased suffered from a mental "senility," and to assume as part of his hypothesis that the testatrix was "senile," when there was no basis in the evidence therefor. There was foundation for this hypothesis both from the hospital records and from the testimony of Dr. Copeland, the intern who made the diagnosis when testatrix was admitted to the hospital. The difficulty arises because Dr. Copeland explained that
Dr. Currier, on the other hand, defined "senile" as also
Dr. Copeland admitted that senility included this mental condition and that it was his impression that testatrix was slow in her thinking processes, which would be some indication of the mental senility assumed by Dr. Currier.
It is further to be noted that the only objection proponent made to the hypothetical question at the trial was the generalized one that it misstated testatrix' physical condition, and that it did not include some known factors, without specifying what the claimed defects were. The rule is that in order to preserve the objection for review on appeal the objector must point out specifically what she claims was erroneously included or omitted,
Counsel further suggests that the answers of this expert were so uncertain and vague that they should not have been submitted to the jury, citing Moore v. Denver & R.G.W.R. Co.
Having thus determined that the evidence was properly admitted, we proceed to assay whether upon all of the evidence the finding of lack of testamentary capacity can be sustained. The proponent relied heavily upon the fact that both of the subscribing witnesses testified that in their opinion testatrix was in command of her faculties on the afternoon of June 25, 1954.
It is conceded that the uncontroverted testimony of eyewitnesses may not arbitrarily be disbelieved by the trier of the facts.
First of all, in the instant case, it should be noted that the subscribing witnesses were not experts and their opinions were only those of lay persons and therefore should not be given undue weight.
Since contestants prevailed below, all the evidence and every intendment and inference which may fairly be drawn therefrom must be viewed in the light most favorable to them.
Dr. Currier described the effects of testatrix' ailments upon the ability of her brain to function, and concluded that in his opinion the collective result would be that
Besides the evidence as to her mental state and her illness, the jury was doubtless influenced by the following circumstances which indicate at least some degree of mental confusion: Testatrix executed another codicil on June 21, 1954, in which she increased the bequests to Mrs. Howell by $10,000 and to the Schneider children by $5,000 each. This codicil was revoked, apparently upon the assumption by the employees of the executor that the testatrix intended to change the disposition of her property in the manner indicated by the June 25 codicil now in dispute. Such an instrument was submitted to testatrix on June 24, by Mr. Athol Rawlins, an attorney for executor. Upon observing her, he declined to act as a witness. His testimony was that he felt that she was in no condition to execute a codicil. It was the next day, June 25, that the questioned codicil was presented by others and was signed.
We remain cognizant of the fact that the law does not require that a person be particularly alert, nor need he have any special acumen in order to execute a will. He need not be able to operate a business or do other things which he might normally do in the prime of life. All that is required is that one have sufficient mental capacity to exercise judgment as to who are the natural objects of his bounty, to recall the character and extent of his property, to form some understandable plan for the disposition thereof, and to follow such a plan of one's own free will and volition.
Judgment affirmed. Costs to contestants.
McDONOUGH, C.J., and WADE, J., concur.
HENRIOD and WORTHEN, JJ., concur in result.