Hurd v. Brown

ANGELLOTTI, C. J. Certain of the heirs of Alfred Baird, deceased, contested his will after probate, and they appeal from a judgment against them following the granting of proponent’s motion for nonsuit.

By his will Alfred Baird sought to dispose of an estate valued at approximately one hundred and ninety thousand dollars. Baird had been the father, of two sons and two daughters. These were B. M. Baird (commonly called Morgan Baird), Sarah Alice Hurd, Edwin Lewis Baird, and Florence Baird Keeler. Of these children Edwin Lewis Baird predeceased his father by many years, and at the latter’s death there survived of this branch of the family four children of Edwin Lewis Baird, deceased, and one grandchild, who was the child of a deceased daughter. Two separate contests of the will of Alfred Baird were filed, one by Mrs. Hurd, his daughter, and another by his grandchildren and great grandchild representing Edwin Lewis Baird, deceased. Both contests were based originally upon allegations of improper execution of the will, unsoundness of the [383]testator’s mind, and undue influence which it was alleged B. M. Baird exercised upon the testator. The contests were tried together and at the trial the contestants abandoned all attacks upon the validity of the will except that based upon the alleged undue influence.

When the original will was executed, November 23, 1909, the testator’s wife was living and provision was made for her, to the extent of an income of one hundred dollars per month for h<jr life. The surviving children of Edwin Lewis Baird, deceased, were given one thousand dollars each, and the infant child of the deceased child of said E'dwin Lewis Baird the sum of ten dollars. The only provision for testator’s daughter, Sarah Alice Hurd, was one for the payment to her of $25 per month during her life, the testator saying: “I make this provision for my said daughter as the best method of protecting her from want during her life and because she has already received a good deal from me, all of which she has squandered.” All the rest and residue was given to the son, B. M. Baird, and the daughter, Florence Keeler, to be divided equally between them, and said B. M. Baird was appointed executor without bonds. A codicil dated February 9, 1912, accompanied the will, the same making no change therein except to cancel the provision for the wife, she having died, and also to provide that Florence Keeler’s share in the residue should be two thousand dollars less than the share of B. M. Baird.

In view of the condition of the pleadings it must be taken as established that the codicil of February 9, 1912, was admitted to probate. The petitions for revocation of probate filed by the contestants allege that on December 14, 1914, an order was made admitting to probate ‘1 as and for the last will of said Alfred • Baird, deceased, and a codicil thereto, two certain alleged papers . . . dated November 23, 1909, and February 9, 1912, respectively.” The answers expressly admitted the truth of these allegations. The contest was as to both documents. In the codicil the testator stated that having on the twenty-third day of November, 1909, made his last will, he declared this to be a codicil to the same, and said: “I hereby ratify and confirm said will in every respect in so far as the same is not inconsistent with this codicil.” If the codicil was duly executed, its execution was equivalent, of course, to a re-execution of the will. Its admission to pro