Mickelson v. Mickelson

WOOD, J.

Olaf Miekelson died on May 10, 1938, at the age of 76 years. His will, dated April 16, 1938, was admitted to probate and thereafter and within the time allowed by law contestants, sons of decedent, filed a petition for the revocation of the probate of the will. Upon the close of contestants’ testimony presented at a jury trial the court granted a motion for a nonsuit and the appeal was taken from the ensuing judgment. The only point argued by contestants on this appeal concerns the ruling of the court in holding that it was not shown that decedent was of unsound mind at the time of the execution of the will. Although it appears from the record that an appeal was taken from the ruling of the trial court sustaining a demurrer to causes of action setting up other grounds of contest, contestants have apparently abandoned their contentions in this regard and we therefore will consider only the issue concerning the mental condition of the decedent.

Decedent was married to his first wife, Matilda, in 1879 and lived with her until her death in July, 1936. Four children were born to them but only two, the sons Walter and Fred, contestants herein, were living at the time of his death. Seven months after the death of his first wife decedent married Nancy Adeline Miekelson, whom he met for the first time shortly after the death of his first wife. In the first three paragraphs of the will, which was executed during his last illness, decedent recites that he was married to Nancy Adeline Miekelson and that his two sons are his only surviving lineal issue. In the next paragraph of the will testator recites merely that he is the owner of certain described real property, but does not there make a gift of any of it. In the next paragraph he provides: “I hereby give, devise and bequeath all the rest, residue and remainder of my estate of whatsoever kind or character, and wherever situated to my wife, Nancy Adeline Miekelson.” Nowhere in the will does the testator state expressly to whom he gives the property described in the will.

[452]

From the evidence presented by contestants it appears that decedent was a mason and that during his first marriage he accumulated considerable property, residential property in Long Beach and an orange grove at Covina. He lived a healthy normal life and was mentally alert until February, 1935, when he suffered a “stroke”. At that time he fell from a stool and was picked up unconscious. From then on his health failed and in the summer of 1935 he suffered another “stroke”. From that time until his death he became progressively worse both mentally and physically. He appeared to realize he was failing mentally, for he declared that he was losing his mind and that something was going around and around in his head. His speech at times was unintelligible and his eyes had a blank stare. He became cruel and abused his first wife, who was a cripple, for some time before her death. His condition was such that at times he did not know what was going on around him.