Wixom v. Goodcell

Fitzgerald, C. — This proceeding was instituted under section 1327 of the Code of Civil Procedure to revoke the probate of the will of Betsey E. Cole, deceased, on the ground of incompetency by reason of mental incapacity at the time of its alleged execution. The plaintiffs are the children of the deceased children of testatrix, and as such claim an interest in her estate. The defendants, with the exception of the executors, are the children of testatrix, and legatees and devisees under the will. '

The only issue submitted by the court to the jury was as to the mental capacity of the testatrix, and the finding of the jury thereon was as follows: “Was the deceased, Mrs. Betsey E. Cole, on the seventh day of May, 1887, the time of the execution of the alleged will, of sound and disposing mind? A. Yes.”

Plaintiffs then moved the court to set aside the verdict and grant a new trial, on the following grounds: “1. Insufficiency of the evidence to justify the verdict, and that it is against law; 2. Errors in law occurring at the trial, and excepted to by plaintiffs,” —which motion was denied by the court.

This appeal is taken by plaintiffs from the order denying their motion for a new trial.

The facts necessary for a proper understanding of the points upon which the order herein must be reversed are as follows: —

In 1886 the testatrix conveyed to her sons, Wallace and Jasper Wixom, all of her property, with the understanding, says Willard in his deposition read at the trial, “that she would make a will and we would execute it.” He further testified “ that when she heard that Jasper [624]was not going to do as agreed, she brought suit to recover it; it was finalty arranged during the winter of 1886-87; we deeded her part of the property back, and kept part for our share; I got twenty-one thousand dollars for the part I had, a short time afterwards.”

The ground upon which the action was brought for the recovery of this property from her sons is not shown by the record, but it does appear that while that case was pending she employed as her agent, to look after her interests in connection with that litigation, one Dr. A. Thompson, who was then, and for a long time at and before the making of the will had been, her attending physician.

The case was settled by compromise in the winter of 1886-87, and on the seventh day of May following, she being then seventy-six years of age, executed the will in question, by the express terms of which her entire estate was devised to those of her children who are defendants in this action. She intentionally omitted to provide therein for plaintiffs, for the reason, stated in the will, “that each and all of them” — meaning her deceased children, of whom plaintiffs are the issue — “ have received in my lifetime all the provision intended for them.”