Dainton v. Watson

650 P.2d 277, 1982 Wyo. LEXIS 377
CourtWyoming Supreme Court
DecidedAugust 31, 1982
DocketNo. 5685
StatusPublished
Cited by1 cases

This text of 650 P.2d 277 (Dainton v. Watson) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dainton v. Watson, 650 P.2d 277, 1982 Wyo. LEXIS 377 (Wyo. 1982).

Opinion

ROONEY, Justice.

This is an appeal from a judgment rendered on a jury verdict in favor of the appellee-proponent in a will contest action in which appellants-contestants sought to set aside decedent’s will on the grounds that its execution did not conform to statutory requirements, thus resulting in insufficient proof of the will. Two issues are presented on appeal: (1) Was the verdict supported by substantial evidence; and (2) did error result from the comment made by counsel for appellee in his closing argument concerning that which appellee observed at the time the subscribing witnesses signed the will?

We affirm.

SUBSTANTIAL EVIDENCE

When an issue on appeal involves the sufficiency of the evidence, we must apply the following standard:

“ * * * We not substitute our judgment on the facts for the jury’s in the presence of substantial evidence. On appeal we assume the evidence in favor of the successful party is true and leave out of consideration entirely the evidence presented by the unsuccessful party in conflict therewith, and we give the evidence of the successful party every reasonable inference that may be reasonably drawn from it. * * * ” Distad v. Cubin, Wyo., 633 P.2d 167, 180 (1981).

A review of the record reflects the existence of substantial evidence favorable to appellee, the successful party, concerning the pertinent issue. The pertinent issue is whether or not the subscribing witnesses to the will, Marty Fernau and Gemila Stetson, each signed the will under the conditions prescribed by § 2-6-112, W.S.1977. Such section provides in pertinent part:

“ * * * [A]ll wills to be valid shall be in writing, or typewritten, witnessed by two (2) competent witnesses and signed by the testator or by some person in his presence and by his express direction. ‡ ⅜ ‡ 9

In this respect, both subscribing witnesses, Marty Fernau and Gemila Stetson, furnished sworn affidavit testimony in writing pursuant to § 2-6-205(a), W.S.1977. Section 2-6-205(a) provides in pertinent part:

“ * * * [Pjroof of a will may be made by the oral or written testimony of one or more of the subscribing witnesses to the will. If the testimony is in writing, it shall be substantially in the following form * *

The form was used for the testimony of both subscribing witnesses in this case. That subscribed and sworn to by Marty Fernau reads as follows:

“I reside in the County of Natronaf,] State of Wyoming; I knew the testator on the 7th day of July[,] 1977 the date of the instrument, the original or exact re[279]*279production of which is attached hereto, now shown to me, and purporting to be the last Will and Testament of the said Verlie 0. Altman[.] I am one of the subscribing witnesses to said instrument; and on the said date of said instrument, I knew Gemila Stetson[,] the other subscribing witness; and said instrument was exhibited to me and to the other subscribing witness by the testator, who declared the s'ame to be his Last Will and Testament, and was signed by the testator at Lusk in the County of Niobrara[,] State of Wyoming on the date shown in said instrument, in the presence of myself and the other subscribing witness; and the other subscribing witness and I then and there, at the request of the testator, in the presence of said testator, and in the presence of each other, subscribed our names thereto as witnesses.”

That subscribed and sworn to by Gemila Stetson was worded the same, except that the name “Marty Fernau” replaced the name “Gemila Stetson.” The affidavits and their contents were made known to the jury.

Additionally, Gemila Stetson testified in part as follows:

“Q. You witnessed the signatures, all right. And was Verlie there?
“A. Yes, sir.
“Q. Was Marty there?
“A. Yes, sir.
“Q. And was Verlie sitting at the desk, or do you know where was he, I should say?
“A. He was sitting to Minerva’s right. She was sitting in behind her desk, and then he was sitting to her right.
“Q. And then were you and Marty standing there?
“A. Yes, sir.
“Q. And Marty signed first and then you signed it?
“A. That’s right.
“Q. And you saw Verlie sign it then? “A. Yes.
“Q. In front of you?
“A. Yes.
“Q. He signed it in front of you?
“A. Yes.
“Q. But you did see, and according to that affidavit, Verlie sign that will?
“A. Yes, sir.
“Q. And you also saw Marty Fernau sign as a witness before you?
“A. That’s right.
“Q. And you signed second on that will?
“A. That’s right.”

Marty Fernau testified in part as follows after reading the above-quoted affidavit to the jury:

“THE COURT: Signed by you?
“A. Yes.
“Q. (by Mr. Kaufman) And is 2834 Cherokee Lane your address in Casper, or was it then?
“A. It is.
“Q. And it was notarized?
“A. Yes, sir.
“Q. Gayle M. M-o-h-1; is that correct? “A. Yes.
“Q. Now, Marty, I want to show you Proponent’s Exhibit A [the will].

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Related

Matter of Estate of Altman
650 P.2d 277 (Wyoming Supreme Court, 1982)

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Bluebook (online)
650 P.2d 277, 1982 Wyo. LEXIS 377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dainton-v-watson-wyo-1982.