Bertie v. Newman

WHITE, P. J. The instant appeal was taken by decedent’s son and wife from the judgment dated March 15, 1954, which overrules their contest of decedent’s will and codicil presented for probate by Ann Marie Newman; admits to probate decedent’s will dated February 23, 1949, and his codicil thereto dated October 3, 1952; appoints said Ann Marie Newman administratrix with the will annexed; revokes the order made on or about April 21, 1953, admitting to probate decedent’s will of August 12, 1948 and appointing decedent’s said son as administrator with the will annexed and revokes the [523]letters of administration with the will annexed issued to said son thereunder; and provides that said Ann Marie Newman “recover from the contestants . . . her costs of contest herein incurred. ...”

The findings of the trial court disclose facts as follows: That at the time the will and codicil were made by decedent, he was about 75 years of age and “was of sound and disposing mind and not acting under duress, menace, fraud or undue influence and was in every respect competent by last will to dispose of his estate.” That appellants “are the only heirs at law of the said decedent.” That for many years decedent was visited almost every day by Ann Marie Newman and part of the time he lived in the Newman home with said Ann Marie Newman, her husband and baby. That decedent did not become dependent upon said Ann Marie Newman and he neither asked for nor received from her advice or assistance in the handling of his business or the making of his will or codicil or in connection with his changes of residence. The court further found:

‘ ‘ That it is true that the above named proponent Ann Marie Newman is not related in any manner to decedent. That it is not true, as alleged, that she is not entitled to Letters of Administration with the Will Annexed of the said estate, or to succeed to any interest therein as an heir at law, or otherwise.

"The Court further finds in said respect that although the contestant, Annie Bertie is the widow of William James Bertie, deceased, and the contestant, William James Bertie, Jr., is the only son of William James Bertie, deceased, they were not by or under the terms or provisions of the Last Will and Testament of William James Bertie, deceased of February 23, 1949, and his Codicil thereto of October 3, 1952, entitled to succeed to his estate or any portion thereof, but that the proponent, Ann Marie Newman was and is the sole legatee and devisee thereunder and therein and that said Last Will and Testament and Codicil devised and bequeathed the entire estate of said decedent to said Ann Marie Newman, who is entitled to Letters of Administration with the Will Annexed of and in said estate.”