McKague v. Hunter

SHEPARD, Acting P. J. This is an appeal by contestants from a judgment admitting to probate the will of the above-named deceased.

Pacts

The facts shown by the record are without substantial conflict. Herbert L. McKague was in the hospital. His doctors [371]advised surgery of a serious character. He asked to make his will and that Mrs. Bertha Hunter, in whose home he stayed, be called to take care of this. One of the nurses called Mrs. Hunter. Mrs. Hunter came to the hospital accompanied by Mrs. Ruby H. Weaver. The room in which McKague’s bed was located was a three-bed ward, about 16 by 20 feet in size. One other patient was in the ward, in the bed next to McKague’s. The usual bed curtain separated vision from between the two beds but did not extend across the foot of the bed.

From arrival to completion of will, Mrs. Weaver, Mrs. Hunter and McKague were in each other’s presence at all times. McKague requested Mrs. Hunter to write his will. At his dictation she did so. During part or possibly all of the dictation, Dwight 0. Birch, a hospital orderly, was attending the patient in the next bed and overheard the dictation. He realized that McKague was dictating a will. Exactly how much of the conversation and dictation he overheard is not disclosed by testimony. When the writing was complete, McKague wrote at the end, “Signed by me, Herbert L. Mc-Kague.” He told Mrs. Weaver that it was his will and asked her to sign as a witness. She did so. McKague then said he needed another witness. Birch came around the foot of the bed. Birch did not see either McKague or Weaver sign. Birch testified, “Well, as I came around the curtain, Mr. McKague asked me to sign the Will.” Mrs. Hunter testified McKague said to Birch, “Will you sign my Will?” but that Mc-Kague did not make any formal declaration that this “was his last Will” nor “that he had signed it.” Birch then signed as a witness and all the witnesses were ushered out and preparations for surgery instituted. McKague died some hours later, after surgery.

The will was presented for probate, the contest was filed and answered, trial was had, developing the above facts, judgment was rendered admitting the will to probate, motion for a new trial was made and denied and this appeal was taken by contestants. The sole ground of contest was that “said document was not executed by decedent or attested in the manner and form required by law for the execution of a will.”