Burrell v. Burrell

Belcher, C. C. Lyman J. Burrell died in Santa Clara County in 1884, leaving what purported to be his last will and testament. The paper was dated March 9, 1882, and was signed by the decedent, and appeared to have been properly witnessed. Philomela T. Burrell, the widow of decedent, was named as executrix, and presented the will for probate. The children of decedent objected to the probate of the will, and filed written grounds of opposition thereto. The proponent made answer to the opposition, denying all of its material [480]allegations. The contestants then demanded a trial by jury, and asked to have the following issues submitted to the jury: —

“1. Was Lyman J. Burrell on March 9, 1882, at the time of the alleged making of said will, of sound and disposing mind?”

“ 2. Was the making of said will procured through or by any fraudulent misrepresentations, or false statements or suggestions, of the proponent, Philomela T. Burrell?”

“3. Was said will procured to be made by the undue influence of any person ? ”

“4. Had the proponent, Philomela T. Burrell, any undue influence over the deceased which operated in the disposition of his property in the making of his will?”

“ 5. Was said will, at the alleged time of the making thereof, signed by two witnesses at the request and in the presence of Lyman J. Burrell, deceased ?”

The court settled and submitted to the jury the first ■ four of these issues, but upon objection of counsel for proponent, that there were no sufficient allegations to warrant it, refused to submit to them the last one.

At the conclusion of the testimony the court instructed the jury very fully upon all of the questions involved, and among other things said to them:—

“Evidence has been introduced relating to the execution of the propounded paper; such evidence you are at liberty to consider as bearing upon the two questions of testamentary capacity, and of undue influence. The fact of due execution of the instrument, however, is withdrawn from your consideration, and with that you have nothing to do.”

The jury answered the first issue submitted to them in the affirmative, and the other three in the negative. The will was then admitted to probate, the court finding and certifying that the decedent died on the ninth day