Norman v. Stewart

SHINN, Acting P. J.

The appeal which is before us is from a judgment admitting to probate the will of Roy Ellis Keizur after a trial before the court of a contest before probate filed by Lola Norman, a sister of decedent, charging the exertion of undue influence by one of the beneficiaries in the procurement of the will, and denying its due execution by the testator and the subscribing witnesses. The principal contention of appellant is that the findings in favor of the executor and the beneficiaries upon these issues were not justified by the evidence.

Decedent was unmarried at the time of his death and left as his only heirs two brothers and two sisters. ( The sole beneficiaries of his will were three friends of decedent, Lowell Guest, his mother, Lida Guest, and Archie D. Stewart, who was then and for some time past had been acting as decedent’s attorney. The estate consisted of real and personal property of the appraised value of $4,855.80. Testator was about fifty years of age and had acquired the estate in question shortly before his death, through the will of one Margaret Bartino. Respondent Stewart had acted as his attorney as executor of the Bartino estate and was acting in that capacity at the time he prepared decedent’s will, which was executed in Stewart’s office in the presence of two witnesses called in by Stewart, one, Dr. Gilbert, a dentist, whose office was in the same building, and the other, Mr. Burge, a public accountant who shared a reception room with Stewart and an adjoining private' office.

Dr. Gilbert, as a witness upon the trial, had little recollection of the circumstances of the execution of the will. After he had stated that he, Mr. Stewart, and Mr. Burge were present with the testator when the will was signed, he testified ; “ To the best of iny knowledge Mr. Stewart said, ‘ These gentlemen will act as witnesses,’ and I don’t recall if there was anything else said unless Mr. Keizur in that conversation

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remarked, ‘All right,’ or shook his head, or something.” Mr. Burge testified that in the presence of the named parties, “Mr. Stewart, as I recall, turned to Mr. Keizur and said something about, ‘Is this your last will and testament?’ And ‘Do you want these gentlemen to witness your signature?’ I don’t know whether those were the exact words, but something to that effect. And he replied, ‘Yes,’ and he signed the document and Dr. Gilbert signed and then I signed, as witnesses. ’ ’ The trial court was fully justified in construing the answer of the testator to the questions asked as a request that those who signed the will as witnesses do so, and as a declaration that the document was his will.