Whiston v. Newman

GRIFFIN, J. This proceeding involves a petition of contestant Kenneth LeRoy Whiston to revoke the probate of a holographic will of his father, Herbert L. Whiston, Sr., dated April 25, 1949. In 1941, deceased was married to Mabel Whiston. Other members of the testator’s family were his adult children by a former marriage, Kenneth L. Whiston (contestant), Herbert L. Whiston, Jr., and La Fonda R. Orland.

A few days before the decedent and his wife left for a trip, they made wills respecting the disposition of their property upon death. The testator wrote his in longhand and later signed it in the presence of his accountant, Marian Evans, who was asked to sign as a witness to his signature. She did so and placed the will in the safe in a sealed envelope, as directed by the testator. He then handed her another sealed envelope and said it was his wife’s will, and it was also placed in the safe.

H. L. Whiston died on February 23, 1955. The wills were turned over to Mrs. Whiston and her attorney. The testator’s will was opened and read. A petition for its probate was filed. At the hearing, Marian Evans testified that the testator wrote and signed the will in his own handwriting and that she witnessed his signature. It was admitted to probate and Mrs. Whiston was appointed executrix. The executrix died July 21, 1955, and the respondent, Public Administrator Stanley Newman, succeeded Mabel Whiston as personal representative under the will here in question. Respondent Marian Evans was appointed executrix of Mabel Whiston’s estate. On September 20, 1955, contestant, then represented by his attorney, filed this petition to revoke the subject will on three [228]grounds: (1) Unsound mind of the testator; (2) Lack of due execution of the will; and (3) That it and the signature thereon were not in the handwriting of the decedent.

Answers were filed by the respondents Public Administrator and Marian Evans, as executrix. The named children of deceased filed no answer. After trial of the issues thus presented the court made its findings, denied the petition, entered, judgment dismissing it, and affirmed the previous order admitting the will to probate. Contestant appeals from this judgment. Contestant’s attorney was then substituted out of the case, and contestant endeavored to secure several other counsel to represent him on this appeal without success. He then, in propria persona, filed what purports to be a typewritten opening and closing brief setting forth certain claims and objections to the decision of the trial court. He argues that the evidence shows, in truth and in fact, the will was not entirely in the handwriting of the decedent, was not signed by him, and he feels that the property in the estate should have gone to decedent’s direct heirs rather than to strangers. The will provided that all of his possessions go to his wife, or if she predecease him, to be divided, $500 each to contestant and Herbert, Jr., $3,000 to La Ponda, and the balance to testator’s brother and decedent’s four grandchildren.