Chauncie Caroline Curtis v. Millie B. Curtis

481 F.2d 549, 156 U.S. App. D.C. 374

• Court: Court of Appeals for the D.C. Circuit
• Decided: August 8, 1973
• Docket: 72-1649
• Status: Published

Opinions

WILKEY, Circuit Judge:

This case arises on appeal from a judgment entered against the plaintiff in an action to contest the validity of the will of Howard J. Curtis. Appellant’s major contention below was that the signature on the will was a forgery. On appeal, she complains that the District Court erred in placing on her the burden of proof as to that issue. We conclude that the burden was correctly allocated and that the judgment should be affirmed.

Howard J. Curtis died on 28 February 1970, domiciled in the District of Columbia. His widow, Millie B. Curtis, subsequently petitioned for probate of a writing dated 6 July 1969. This document in the nature of a last will and testament named her as executrix and sole beneficiary. On 4 June 1970 the court entered an order in Administration No. 920-70 admitting the will to probate and record. On 4 December 1970 appellant Chauncie Caroline Curtis (the surviving mother of decedent) filed this action, pursuant to 18 D.C.Code § 509 (1967), alleging forgery and seeking revocation of probate. The matter came on for trial, testimony at which included that of the witnesses to the will and of handwriting experts for both sides. The court found for defendant, entered judgment on 24 February 1972 confirming admission of the will to probate and record, and on 22 March 1972 denied plaintiff’s motion for a new trial.

The District Court did require the defendant-caveatee to proceed first in order of proof with evidence of due execution. However, the ultimate burden of persuasion was placed on the plaintiff-caveator. At the conclusion of its memorandum accompanying an order denying caveator’s motion for a new trial, the court said:

It was the plaintiff’s burden to prove her allegation that the signature on the Will was forged. Brosnan v. Brosnan. 263 U.S. 345 [44 S.Ct. 117, 68 L.Ed. 332] (1923). Clearly, the plaintiff failed to meet this burden. -

Appellant contends that this allocation of the ultimate burden of proof was error. She refers to the general proposition, which is beyond dispute, that the burden of proving the formal execution of a will rests in the first instance upon the proponent of the will. Patten v. Pinckney, 60 App.D.C. 224, 50 F.2d 989 (1931); 3 Bowe-Parker: Page on Wills § 29.16, p. 433 (3rd ed. 1961). Indeed, as appellant notes, even in the absence of a challenge or caveat, a will may not be admitted to probate and record except upon formal proof, presented by the will’s proponent, of proper execution. 18 D.C.Code § 504 (1967); National Safe Deposit, Savings and Trust Co. v. Heiberger, 19 App.D.C. 506 (1902).

To support its placement of the burden of persuasion on the caveator, despite this general principle, the District Court relied on Brosnan v. Brosnan, 263 U.S. 345, 44 S.Ct. 117, 68 L.Ed. 332 (1923). However, as appellant-caveator aptly observes, that case deals with the special circumstance of a challenge to the mental capacity of the testator. Due formal execution of the will was assumed — and there was no indication that the court even considered altering the proponent’s initial burden in that respect. The Bros-nan case’s exception to the general rule “rests upon the ancient presumption in reference to sanity.” 263 U.S. 345, 349, 44 S.Ct. 117, 118, 68 L.Ed. 332 (1923). For obvious reasons, there is no corresponding initial presumption of due execution or absence of forgery. Therefore, the allocation of the ultimate burden of persuasion to the plaintiff-caveator could not be supported by the authority cited by the District Court.

On the other hand, there is an additional exception to the general rule concerning the proponent’s burden. Once the proponent of a will has met his initial burden, and the will has been admitted to probate and record, subsequent caveators must bear the ultimate burden of proof as to execution. Here, the will had already been admitted to probate, presumably following appropriate notice and proof — so the burden was properly allocated in this case.

It has been established in the District of Columbia that the burden of going forward, in a will contest originating after initial admission to probate, shifts once the record of that admission is introduced. As this court said in Flocker v. Di Gennaro, a caveatee is “entitled to rely upon the record of the probate as . prima facie proof of due execution.” 88 U.S.App.D.C. 133, 187 F.2d 513, 514 (1951). Since the statute requires prima facie proof of due execution prior to admission to probate, even absent a caveat, it seems only fair to spare the proponent of a will from the necessity of repeatedly reoffering such proof after the initial production burden has been met.

As to the ultimate burden of persuasion, which was placed on the caveator by the District Court in this case, the law of,, the District of Columbia is less clear. Since the court in the Flocker case felt that due execution was “proven . . . beyond dispute,” it did not speak specifically to the issue of allocating the risk of non-persuasion. Further, if a will has not been challenged before admission to probate, it could be argued that the proponent, while having once met his production burden, has not yet been put to the test of overcoming contrary evidence.

Despite the lack of a clear District of Columbia precedent on point, both the weight of authority in other jurisdictions and general policy considerations compel the conclusion that, once a will has been admitted to probate, the ultimate burden of persuasion even as to execution rests on the caveator. 57 Am.Jur., Wills, See. 856, p. 570; 3 Bowe-Parker: Page on Wills § 29.13, pp. 426-27 and § 29.16, p. 435 (3rd ed. 1961). In a contest after probate, the contestant is in the procedural position of the moving party. Hoping to establish a case strong enough to compel revocation of the admission to probate, the plaintiff-caveator is the party seeking to change the status quo. Further, allocating the burden to contestants after admission of the will to probate has the beneficial effect of encouraging early caveats, thereby decreasing uncertainty. While an heir who consents to admission to probate does not thereby jeopardize his right to later bring a caveat under 18 D.C.Code § 509, delay in contesting due execution does affect the allocation of the burden of persuasion as to that issue. Accordingly, the judgment of the District Court is

Affirmed.