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In Re Gordon

December 31, 1916


Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.

James T. Boyd and Roy W. Stoddard, for Appellants.

Sardis Summerfield and A. A. Heer, for Respondent.

By the Court, McCarran, J.:

William J. Gordon died on July 15, 1915. He was survived by a widow and by a minor heir, William J. Gordon, Jr. In an instrument purporting to be his last will and testament, after making small bequests of money to his wife, to his infant son, William J. Gordon, Jr., and to each of his sisters, he bequeathed the rest, residue, and remainder of his estate of every kind and character, to one Mary T. Dougherty. An application to have this will probated resulted in a contest, at the inception of which the court appointed attorneys to represent the absent minor heir. The widow was represented in her individual capacity by other counsel.

The record in this case is voluminous. It will, however, we think, suffice to determine the prinicipal point in the case upon a consideration of three propositions

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considered by the trial court, and upon which that court, as a final conclusion, refused to admit the will to probate:

“First, did the deceased possess testamentary capacity at the time it is testified that he discussed the making of the will with the draftsman, some time prior to the date he was taken ill?

“Second, did the testator know, at the time it is testified to that the testator signed the will, that it was the instrument he discussed with the draftsman, or ordered him to prepare?

“Third, is the signature of the will the signature of the testator?

1. We shall approach the last proposition first, and in doing so we deem it sufficient to quote the words of the trial court, wherein we find presented a fair resume of the evidence. He says:

“The evidence tends to show that at the time of the alleged singing of the will the testator could hardly see; was seriously ill and very nervous; that in first attempting to sign the will, while propped up in bed, he made the sprawl, and upon one of the witnesses remarking that the signature was not very good, or words to that effect, the testator said, ‘I am too nervous,' and requested one of the witnesses to steady his hand; that thereupon, and as testator was propped upon bed, the instrument in front of him on the magazine or cardboard, one of the witnesses proceeded to assist the testator to write his name in the manner following: He put his arm completely around the back of the testator, who held the pen, and in that position, with the witness guiding the hand of the testator, the legible signature William J. Gordon was made.”

The court determined that the signature thus made was rendered invalid, but with this conclusion we are not in accord. Our statute (Stats. 1915, p. 36) provides:

“No will * * * shall be valid, unless it be in writing, and signed by the testator, or by some person in his presence, and by his express direction, and attested by

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at least two competent witnesses, subscribing their names to the will in the presence of the testator.”

That a signature to a last will and testament is not rendered invalid by reason of another having aided the hand of the testator is supported by a line of eminent authorities. (In Re Miller's Estate, 37 Mont. 545, 97 Pac. 935; Vines v. Clingfost, 21 Ar. 309; Craighead v. Martin, 25 Minn. 41; Fritz v. Turner, 46 N. J. Eq. 515, 22 Atl. 125; Sheehan v. Kearney, 82 Miss. 688, 21 South. 41, 35 L. R. A. 102; Jarman on Wills, pp. 106—111.)

In order for this rule to apply, it must appear that the testator, at the time of requesting or receiving the aid in the signing of the instrument, had the present volition to affix the signature, and was aware and fully cognizant of the details of the instrument of will or testament to which he, by the aid of the other, was affixing his signature. The fact that the signature of the testator was made in the manner indicated by the record here would not of itself invalidate that signature. Hence we must decide—and we do this in the light of a harmonious line of authorities—that if the testator in this instance possessed testamentary capacity, was acting under no undue influence, realized the full force and effect of each and every one of the provisions of the will that he was signing, then the signature, in the manner in which it was made, as described by the trial judge, was a valid signature.

2, 3. We now take up the second question considered by the trial court, namely: Did the testator know, at the time at which his aided signature was made, that the instrument he was then signing contained the provisions as to the distribution of his estate which he formerly discussed with the draftsman, or ordered him to prepare? The record in this case presents a series of events in the later life of the testator, as well as a condition of mind and body, which must not be overlooked in arriving at a conclusion as to the proper answer to be made to this question.

The trial court which heard the evidence, saw the witnesses, and had opportunity to observe their manner,

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conduct, and demeanor, had presented to it, as the record discloses, two sharply conflicting lines of evidence. The testimony of Dr. Hartzell, the physician who attended the decedent during his last illness, the testimony of Roy W. Stoddard, the attorney for the deceased and the draftsman of his will, as well as the testimony of the witness S. R. Tippett, each of the last-named witnesses being most reputable attorneys of splendid integrity, all tends strongly to establish that at the time of the signing of this instrument the deceased, Gordon, was of sound and disposing mind, and was fully aware of what he was doing. On the other hand, the record establishes a condition attendant in the testator, as well as surrounding circumstances, all of which, to say the least, appeared to lead to the catastrophe in his career relieved only by death. The deceased, up to a few months prior to the time of his death had resided in the Eastern States; he came to Nevada for the purpose of securing a divorce; he came here in company with the proponent of this will, the principal beneficiary under the instrument, Mary D. Dougherty, and her aunt, Mrs. Kramer; his wife, from whom he had been estranged, and six-year-old boy were in the Eastern States.

Prior to his coming to this state deceased had been in poor health, and his mental condition is described by his sister, Mrs. Pelton, where, in her deposition, she relates:

“Q. Will you describe your brother's physical condition as you saw it on that day (February 20, 1914)? A. He was very sick; he was losing his sight; he could hardly see.

“Q. As regards your brother's ability to move, to walk freely, what was his appearance? A. It was very difficult for him to walk; he walked with a stick and was led to the door by some man. I don't know whether it was a nurse; he did not say. Some one was taking care of him.”

On being further interrogated, she testified:

“Q. Did you talk with your brother at that time, Mrs. Pelton? A. I did.

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“Q. For how long were you in conversation with him? A. About an hour.

“Q. As regards his coherence and ability to speak intelligently, what can you say? A. He could not speak intelligently; he could not make two sentences go together.

“Q. Now as regards his mental capacity, as shown by his conversation at that time, will you state what your opinion is? A. I do not think he was capable of doing anything; he did not know what he was doing.

“Q. As compared with his mental condition of prior years, Mrs. Pelton, can you make any comparison? A. None whatever, because he hardly knew me.

“Q. Can you state whether he seemed stronger or weaker mentally than in previous years? A. Very much weaker.

“Q. Can you state whether or not he seemed to be under the immediate influence of say liquor at the time? A. He appeared to be under the influence of something. I do not know whether it was drugs or liquor.

“Q. Did you see our brother again before he went West, Mrs. Pelton. A. Never.”

In answer to further inquiry, we find as follows:

“Q. In reference to personal facts in your relations with your brother, was he accurate and clear in regard to his statements? A. Not at all.

“Q. And as to inferences of your brother upon such facts stated, was he rational in his statement of such opinions, or otherwise? A. Certainly not rational.”

The testimony of the witness, Mary D. Hartzell, who prior to her marriage to Dr. Reine K. Hartzell on July 27, following the death of Gordon, was Mary D. Dougherty, and the party who, with her aunt, accompanied the deceased from Philadelphia to the city of Reno, is in part as follows:

“Q. Do you know what his (Gordon) primary object was in coming to Reno? A. He came on account of his ...

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