Walker v. Carson

One Alpha O. Carson died leaving a duly executed will by which she made bequests, aggregating some thirty-five thousand dollars, to various relatives, some forty-one in number, and left the balance of her estate, something over one hundred thousand dollars in value, to “my husband J. Gamble Carson.” She also nominated the last-named as the executor of the will. The instrument was duly probated, and thereafter, and within the statutory time, certain of her heirs filed petitions contesting its validity and asking that its probate be revoked. The residuary legatee, Carson, and some of the other beneficiaries answered the petitions and trial was had before a jury upon the issues so made. At the trial, the contestants were nonsuited, and judgment was entered denying the revocation of probate. From this judgment the contestants appeal.

The grounds of contest, as alleged, were three: First, a want of due execution; second, undue influence upon the testatrix, alleged to have been exerted by Carson, and, third, fraud upon her, alleged to have been likewise practiced by him. The first ground was abandoned and may be dismissed from consideration. The substance of both the second and third grounds was that while Carson had gone through a marriage ceremony with the testatrix a year before her death, and she believed then and always thereafter that he was her husband and made her will in that belief, yet he was not such legally because he was already married to a woman who was still living and from whom he had not been divorced. It is also alleged that Carson knew he was not free to marry, and yet represented that he was, and that the testatrix’s belief was induced by these false representations. It is also alleged that solely because of this belief she made the will in question leaving the bulk of her estate to him.

Shorty before the matter came on for trial the contestants offered an amended petition for revocation and asked for leave to file it. Their application was denied, and the contestants complain of this ruling as error. When it came to the trial, the contestants were also prevented in very large

[3] Passing now to the sufficiency of the evidence, the evidence of the contestants, giving to it its utmost effect as we must do in view of the fact that it is an order of nonsuit which is under review, was confined to showing that the testatrix married Carson under the mistaken belief induced by his representations, which he knew to be false, that he was free to marry, that she made the will in the belief that he was her lawful husband, and that she was never undeceived upon this point. It also appears that the will was executed about a month after the marriage, and, as we have said, that the parties lived together as husband and wife in closest as

We have been cited to but two cases involving substantially the same state of facts as that presented' here. They are those of Kenneth v. Abbott, 4 Ves. Jr. 803, [31 Eng. Reprint, 416], and Wilkinson v. Joughin, L. R. 2 Eq. Cas. 319. In each, the facts were practically identical with those of the present case, and in each a bequest in favor of the supposed spouse was held void for his or her deceit. As authorities to the contrary, we are cited by counsel for Carson to Moore v. Heineke, 119 Ala. 627 , [ 24 South. 374 ] ; In re Will of Donnely, 68 Iowa, 126 , [ 26 N. W. 23 ]; Smith v. Diggs, 128 Md. 394 , [ 97 Atl. 712 ]; In re Dries’ Will, 69 N. J. Eq. 475 , [ 55 Atl. 814 ]; Taylor v. Higgs, 202 N. Y. 65 , [ 95 N. E. 30 ]; Meluish v. Milton, L. R. 3 Ch. Div. 27, and Rishton v. Cobb, 5 Mylne & C. 145, [41 Eng. Reprint, 326]. But in every one of these eases, with the exception of the last, there was either an entire lack of evidence that the deceased spouse was unaware of the true state of facts or else it affirmatively appeared that he or she knew what it was; in other words, it did not appear that there had been any deceit. This, of course, distinguishes these cases at once from the present. In fact, it is fairly implied in all that the bequests would have been void if the facts had been as the contestants claim they are here, and this is directly said in several of them. In the last case, that of Bishton v. Cobb, a bequest to a woman to whom the testator had paid court and made a proposal of marriage which had been refused was held valid, although unknown to the testator she was not a single woman. The difference between such a case and the present is evident without discussion.

[4] The weight of authority, then, is distinctly in favor of the sufficiency of the contestants’ evidence to avoid a non-suit, and such also we think is the rational view. The gross fraud upon the testatrix is, of course, apparent. According to the evidence, she was seduced by a marital adventurer into a marriage with him which was no marriage in the eyes of the law, because of the fact, which he concealed from her, that he

[5] Now, a case can be imagined where, nothing more appearing than that the testatrix had been deceived into a void marriage and had never been undeceived, it might fairly be said that a conclusion that such deceit had affected a bequest to the supposed husband would not be warranted. If, for example, the parties had lived happily together for twenty years, it would be difficult to say that the wife’s bequest to her supposed husband was founded on her supposed legal relation with him and not primarily on their long and intimate association. It might well be that if she were undeceived at the end of that time, her feeling would be, not one of resentment at the fraud upon her, but of thankfulness that she had been deceived into so many years of happiness. But, on the other hand, a case can easily be imagined where the reverse would be true. If in this case the will had been made immediately after marriage and the testatrix had then died within a few days, the conclusion would be well-nigh irresistible, in the absence of some peculiar circumstance, that the will was founded on the supposed legal relation into which the testatrix had been deceived into believing she was entering. Between these two extreme cases come those wherein it cannot be said that either one conclusion or the other is wholly unreasonable, and in those cases the determination of the fact is for the jury. Of that sort is the present.

We are not unmindful of the fact that the contestants offered no evidence other than that the testatrix had been tricked into the marriage; that in particular they did not offer any direct evidence that the inducing reason in her mind for her bequest to Carson was her belief that he was

[6] The conclusion so reached required a consideration of the rulings of the trial judge refusing the contestants leave to file their amended petition and refusing to permit the introduction of certain evidence by them. As to the amended petition, it stated essentially the same matters as the original. The only difference in substance was as to the number of marriages Carson had gone through with prior to the one with the testatrix, the amended petition alleging several instead of one. The reasons for refusing leave to file it do not appear, and the claim of respondent is that the matter was one within the discretion of the court. This is true, but the discretion exercised must be a reasonable one. It has been said time and again in this state that, in the interest of justice and in order that every case may so far as possible be determined upon its real facts, the amendment of pleadings to accord with the claimed facts should be freely allowed unless good reason to the contrary appears. No such circumstances as inexcusable delay on the part of the contestants or their taking the adverse party by surprise appear here, and in the absence of some such circumstance we can see no reason whatever why the contestants should not have been permitted to correct or amplify by amendment their allegations as to the previous marriages of Carson.

[7] As to the rulings upon evidence, at the very outset of the trial the contestants sought to introduce testimony of

The trial court did at first admit evidence of statements by the testatrix in Carson’s presence that Carson had been married before and had been divorced, saying that the evidence was admissible only as against Carson. Later this evidence was stricken out and other evidence of similar import refused admission on the theory apparently that it was not competent as against the beneficiaries under the will other than Carson, and not being competent as against them was not admissible at all. There are two answers to this. In the first place, as we have said, the other beneficiaries were not in fact interested parties. The cause was one really between Carson alone and the contestants. In the second place, the declarations, while wholly incompetent to prove the matters related and in fact not introduced for that purpose, were indicative of what the testatrix believed the facts were, and were, as we have said, competent to show that belief, both as against Carson and as against anybody else. Nor was it necessary that the declarations be made in the presence of Carson or any "other party to the litigation. They were not sought to be introduced as admissions, but as evidence of the testatrix’s belief, and for that purpose were clearly competent.

[9] The court also excluded all evidence of statements by Carson to the testatrix as to what his previous matrimonial experiences had been. Some of the evidence so excluded was even as to statements máde at the very moment of their marriage. Upon what possible theory such evidence was excluded, we are at a loss to understand. The claim of the contestants was essentially that Carson had deceived the testatrix by lying to her. How they could be expected to prove that he had lied to her except by evidence of lying statements by him, we do not see. Such statements are not hearsay. They are not introduced to prove the truth of the matters stated or narrated in them. On the contrary, the position of the contestants, who were offering the evidence, was that the statements were false. The making of false statements by Carson was an essential fact, which the contestants were entitled to prove, just as much as they were entitled to prove any material fact in the case. That it was a verbal fact, an utterance by someone, does not prevent its being proved, and

[10] Another inexplicable line of rulings was one whereby the contestants were not permitted to examine Carson as to his previous marriages. The court even refused to permit a question of Carson as to whether he did not know when he married the testatrix that a former wife of his was living and this on the court’s own motion and without any objection to the question being made by counsel. The impropriety of such rulings is beyond argument and we can conceive of no reasonable excuse for them. The court’s attention was specifically called to section 2055 of the Code of Civil Procedure, adopted in 1917 (Stats. 1917, p. 58), which expressly permits of just such an examination of an adverse party. Furthermore, the section is but declaratory of a most elementary rule of daily application in the trial of cases. The rulings were nothing less than a flagrant denial of a common, everyday right of every litigant.

The court also excluded evidence that shortly after her marriage the testatrix transferred her bank account into the joint names of herself and Carson. The rejection of this evidence was not particularly prejudicial, but we think it must be evident that in a case of this sort where one of the vital questions is whether the bequest to Carson was induced by and based upon the belief of the testatrix that he was her lawful husband, or upon her affection for him independently of that belief, any evidence throwing light upon the relations of the parties, or upon her feelings toward him would have some bearing, and that very considerable latitude of examination should be permitted.

[11] The contestants also make the point that even if the testatrix knew the actual facts with regard to Carson, but mistakenly believed that he was free to marry, such mistaken belief alone would vitiate the will. This, of course, cannot be true. Mere mistake, which does not in effect show a want of execution of the will or, what is the same thing, a want of testamentary intent as to a portion of it, is not a ground of contest. (Code Civ. Proc., sec. 1312; Estate of Benton, 131

There are no other points which would seem to require consideration.

Judgment reversed.

Shaw, J., and Lawlor, J., concurred.