Stobbs v. Coloneus

YORK, P. J. —

This appeal involves a contest after probate of the last will and codicil of Emma S. Cone, deceased, instituted by Clayton R. Stobbs, a nephew of decedent, who was not mentioned in either document. The will, olographic in character, which was executed on August 20, 1936, and the codicil which was executed on January 6, 1937, were admitted to probate on April 21, 1937, and letters testamentary issued to Carl P. Coloneus, named therein as executor. After a protracted trial of the issues joined by the contest and the answer thereto, the trial judge concluded that “the said last will and testament of Emma S. Cone dated August 20, 1936, and the said Codicil to said will dated January 6, 1937, were and are valid testamentary acts of said decedent, Emma S. Cone”. Further, that “the plaintiff contestant is not entitled to a revocation of the probate of said last will and testament . . . and said codicil”.

Appellant’s contentions upon this appeal are in substance (1) that the court erred in denying appellant relief from an alleged waiver of a jury trial; (2) that the will was obtained through the use of undue influence and fraud; (3) that at the time said will was executed, testatrix was suffering from an insane delusion; (4) that testatrix was not mentally competent by reason of disease and her infirmities to execute a valid or subsisting will or codicil at the time or times when she is purported to have so executed said documents.

The testatrix, who was a widow of means and extensive business interests, the estate herein having an appraised value of approximately $650,000, on August 20, 1936, executed an olographic will in which she provided for the

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payment of large sums of money, as well as liberal monthly incomes, to various relatives consisting of her brothers, sisters, nephews and nieces. She appointed as executor her first cousin, Carl P. Coloneus, who had been her confidential adviser and business manager since 1926, and devised to him her interest in the Cone Oil Company which he had been managing under her direction for a number of years. She named as a beneficiary of her bounty Leonard Anderson, a young man who had entered her employ in 1922 during the life of her husband, and who had thereafter become a member of her household driving her car and accompanying her on trips, he being generally accepted and regarded as her son. She also named as a beneficiary, Mrs. Ella L. Abdill, who had been in testatrix ’ employ as a housekeeper since 1924, and who had nursed her throughout her last illness.