Miller v. Livingstone

88 P. 338, 31 Utah 415, 1906 Utah LEXIS 53

Opinions

STEAUP, J.

1. This is an action brought to revoke a will alleged to have been executed by Thomas Miller, deceased, under undue influence. Mr. Miller was married twice. He lived with his first wife in Scotland and in New York, by whom he had five children. His wife died in 1885. In the same year he married his second wife, Margaret Miller, who theretofore had been an acquaintance o'f his in Scotland, and who-, at the' time of the marriage, was a resident of Utah, where she lived with a former husband, but from whom she was divorced just prior to her marriage with Miller. Mr. Miller and his second wife lived together a short time in New^ York and then moved to Salt Lake City, Utah. Mr. Miller’s children, who were then of age, remained in New York. Soon after arriving at Salt Lake City he invested about $4,000 in a silk factory, but lost most of his investment. ■ He then engaged in the business of a brass foundry-man, his usual occupation in which he prospered and made considerable money. • In 1890, when lie was about 65 years of age, be made the will in question, devising- and bequeathing- all his property, then worth about $3,000 in value, to his wife. He died in September, 1901. He was then worth from $11,000 to $30,000. All his property went to his wife ’under the will. His wife, Margaret Miller, died March 10, 1904, leaving Elizabeth Livingston, a sister her only heir at law. The will was not admitted to probate until May 20, 1904. Elizabeth Livingston was then appointed adminis-tratrix of his-estate with the will annexed. On May 6, 1905, Miss Margaret Miller, a daughter of Thomas Miller, deceased, on her behalf and on behalf of the other heirs of Thomas Miller, filed a complaint in the Third judicial district court in and for the county of Salt Lake to revoke the will, alleging, among other things, that at the time of its execution, Thomas Miller was “acting under duress, restraint, and undue influence, and fraudulent representations in this: that in his younger days he had formed an' uncontrollable attachment with and for the person named as his wife in the will presented for probate to such an extent that he deserted his family in Scotland, where he was then living, and came to New York state, where his family soon followed him, and he was compelled to support them and leave said devisee ; also that, after a time; the wife of said Thomas Miller, now deceased, died, he deserted his children and came to Utah with the said person named as devisee in said will and af-terwards married her, or attempted to do so, at the solicitation and under the influence of said devisee, and has ever since been under her influence and restraint. And further, that, under the undue influence, duress, and restraint of such person, said decedent was induced and compelled to make the said will against his own wishes, desires, and intentions, as petitioner is informed and believes; and further, that misrepresentations were made to said decedent, to get him to make and sign said will heretofore probated, that his said children had received their share or portion of his estate at the time of his first wife’s death, and had received a portion of the property owned by their mother and in that way had* received their full proportion and right to any interest in his said estate as heirs or otherwise, and said devisee had so worked upon the mind of the decedent by telling him that his children cared nothing for him, that they only desired to receive his property, and by. other false and fraudulent representations the devisee so influenced the mind of the decedent against his children that he cut them off as heirs to his estate in said will described, and by these means and other inducements, undue influence, and coercion, said decedent was influenced to- sign said will and to give, bequeath, and devise all his estate to said devisee and away from his children and against his real intentions.” On August 28, 1905, Elizabeth Livingston, as administratrix of the estate of Thomas Miller with the' will annexed, answered the complaint denying all the material allegations, except the relationship of the parties. On the day of the trial, October 25, 1905, Elizabeth Livingston, in her individual capacity, over the objection of the plaintiff, was permitted to file an answer similar to' the one filed by her as administratrix. The case was tried before the court without a jury, wlm found in favor of the will. A judgment was entered accordingly. The plaintiff appeals, contending that the court erred in excluding testimony, and that the findings are not supported by but are contrary to the evidence.

2. Mr. Sehettler, a banker who was intimately acquainted with the Millers from the time they came to Utah until the death of Mr. Miller, and who was a sort of confidential adviser for them, and who' was a witness to the will, testified on he half of the plaintiff: .That he drew the will at the request of the testator’s wife. That she alone came to him and told him that, she wanted the will made so as to cut off the testator’s children with $1 apiece. That she would fix them; that she was tired of having it go on like this, and therefore wanted the will made out in such manner as to' cut off the children with $1 apiece, and to give her all the property, cash and real estate. That Mr. Miller wanted to favor his children in New York. That she knew what they were, and would not have it so> and that she wanted the property her self. That when asked if Mr. Miller would be willing to sign that kind of a will she replied: “Oh, yes; he will have to do it. I won’t have it any other way.” She said she and Mr. Miller did not agree. She was anxious and excited, and wanted the will made out as quickly as possible, and stated that it had gone on long enough, and that she was desirous of having the- will made out as she told him. She gave him the names of the children, with directions to leave $1 each for them. The witness told her that she would have to remember them with a little something and she said she was anxious to get the will made out so that she might have things her own way and fix those children. The witness drew a rough copy of the will as directed by her, which was then copied by a clerk in the bank. The will when drawn was inspected by Mrs. Miller and was approved by her. She told the witness that Mr. Miller would call on him at a certain time and day to sign the will and to have it ready for him. A few days after that, and in accordance with what Mrs. Miller had said, Mr. Miller alone called at the office of the witness. The witness told him that Mrs. Miller had been there and had requested him to make out such a will and Mr. Miller said: “Well, yes; I suppose so; I suppose it will have to be so to keep- peace, to keep peace” — repeated it several times. Mr. Miller, prior to and after the mailing of the will,'told the witness that he had to do it to keep peace. Prior to the making of the will he had expressed himself to the witness that he had an affection for his children, and that he had promised to remember them in his will, that he calculated to have it so, and that they should have a proper share. The will was read over to him and was signed by him in the presence of the witnesses. He possessed usual intelligence, knew what he was signing, and was then in ordinarily good physical and mental health. He said that he wanted the will and that he would take care of it, and when he left he took it with him. A few days thereafter he told the witness that he had it locked up in a tin box with other valuable papers, and that he calculated to keep it. He kept the key to the box about his person and no one had. access to the box until after bis death. He died very suddenly, and as bis trousers were being removed and bis body dressed by the undertaker, the key fell to the floor and was picked up by Mrs. Miller. This witness testified at the bearing, when the will was admitted to' probate, that the testator was not composed mentally, in the sense that be couldnotdoas be wanted to do; that bis wife made him do certain things be did not want to do; that she made- him sign the will; and that it was not according to bis wishes.

Another witness, a Mrs. McIntosh, in no manner related to the deceased or to the parties, testified on behalf of plaintiff that she was well acquainted with Thomas Miller and bis family in New York, and that she visited him in 1895. Mr. Miller then told her that bis wife was very jealous of bis regard for bis children and that be could not speak of them in terms of affection without exciting her displeasure, which caused him great unhappiness; that for years bis wife bad endeavored to make him believe that bis children only cared for him because of the money be might leave them; that they bad no affection for him and that be owed them no duty of any kind; that occasionally be made small loans of money to his children; that whenever be did so she argued with him that such was proof that all bis children wanted was as much money as they could get out of him; that this was the atmosphere in which be bad lived for years; that at her repeated solicitations be bad made a will in her favor which left bis children nothing; that be made the will because of her insistence, and to obtain peace and a cessation of her constant importunities; that the will was not bis wish but her wish; that it did not express what be desired or intended to do; that be intended to make another will which be would keep secret from her, in which he would provide abundantly for his children; that he did not dare to inform his wife of such intention because she would make his life miserable if she knew it, as she had done before he yielded to her and made the existing will.

Laura Miller, a granddaughter of the deceased, testified on behalf of plaintiff that Mrs. Miller told her that she had the property and money fixed to suit her; that Mr. Miller had no will in the matter but hers; that she could and did .rule him in every respect; that after having many scenes she had prevailed on him to draw up a paper turning everything over to her on his death; that the property was in her name, thereby cutting off his family; that Mrs. Miller asserted that the family would get nothing; that she had fixed them all 'right, having compelled Mr. Miller to put everything in her name and to make a will leaving her everything; that she was going to do as she pleased with the property; and that no one would know how it was to be divided until after her death.

Two witnesses, wh<> were intimately acquainted with Mr. and Mrs. Miller, testified on behalf of defendant that Mr. and Mrs. Miller appeared to be harmonious and affectionate towards each other; that Mrs. Miller was attentive to Mr. Miller, and that they were both strong-minded. One of them testified that she heard Mr. Miller say in the year 1890 that it was due Mrs. Miller to be protected, that they were both-getting old, and that it was through her influence that he was able to provide anything for her. The other witness testified that Mr. Miller never said anything in his presence as to providing for his wife by will.

The other subscribing witness to the will was called by the defendant and testified that he was requested to sign as a witness to Mr. Miller’s signature, and that Mr. Miller seemed to be perfectly aware of what was going on, and if he was interfered with by any one there was not the slightest sign of it. The witness could not remember whether the will was read over to the testator, and had no recollection that at the time of the signing of the will Mr. Miller said that he executed it for the sake of peace or to please anybody. Outside of testifying that he was requested to sign as a witness, and that the testator seemed to be aware of what he was doing, the witness did not testify to anything said or done at the time of the execution of the will, or to any facts indicating that the testator freely' or voluntarily, or otherwise, ac knowledged tbe execution of tbe will, or tbat it was or was not in accordance witb bis wishes.

3. In view of a reversal of tbe case upon tbe points hereafter to be considered, it is not necessary to pass upon the question as to whether tbe findings are contrary to tbe evidence. The trial court sustained tbe defendant’s objections to the following questions asked by plaintiff of tbe witness Scbettler: “Q. Did you ever have any conversation witb Mrs. Miller after tbe execution of tbe will, about tbe will or about Mr. Miller’s children? A. Yes; some. Q. What did she say ? Q. Did Mrs. Miller ever tell you anything about her affection or regard for Mr. Miller’s children ? A. Yes, sir. Q. What did she say, and when was it? It was also shown that tbe witness bad been intimately acquainted witb tbe Millers, and often bad visited at their bouse, but, on defendant’s objections, the witness was not permitted to state, upon occasions referred to by him, as to Mrs. Miller’s conduct towards tbe deceased’s children between 1898 and 1900. Nor was be permitted to state bow Mrs. Miller acted towards the decreased when anything was said about bis children, nor as to her demeanor and conduct towards them or tbe deceased subsequent to tbe making of tbe will. Tbe witness Mrs. McIntosh, who visited the Millers in 1895, was not permitted to testify concerning tbe feelings and disposition Mrs. Miller manifested towards tbe deceased’s children subsequent to tbe making of tbe will, nor tbat Mr. Miller was constantly under tbe influence' and control of bis wife, and tbat be did not dare to express any opinion about bis children in her presence. Upon defendant’s objections, the witness Laura Miller was not permitted to answer tbe questions: “Q. While visiting your grandfather in Salt Lake City in tbe winter of 1900 and 1901, state bow Mrs. Miller acted towards your grandfather and bis children, and what was said about him and bis children and bis property? Q. State what tbe influence was tbat Mrs. Miller bad over your grandfather, and if it was such tbat be bad any mind of bis .own ?” Other questions of like character were asked, some tending to show declarations against interest made by Mrs. Miller, and others tending to show ber conduct and demeanor in regard to manifestations of feelings of hostility and prejudice towards Mr. Miller’s children. Likewise questions were asked of these witnesses as to statements made by the testator, some five, and some eight or nine, years after the will was made, in regard to the affection he bore his children, and the jealousy and prejudice manifested by his wife towards them, and with respect to the difference existing between himself and his wife, as reflecting the mental condition of the testator at the time the will was made. The objections urged against the testimony were that the matter sought to be elicited did not tend to throw any light upon the question as to whether the testator, at the time of the execution of the will, was unduly influenced, and that they were, therefore, too remote; that the statements and declarations made by Mrs. Miller, and the feelings manifested by her towards the children after the will was made, were immaterial and incompetent, especially such as were not expressed in the presence of Mr. Miller at or about the time the will was made; and that the, will could not be invalidated by the ■parol declarations of the maker of the will made before or after the will was executed. The theory upon which the plaintiff sought the testimony was that the influence exerted over the testator by his wife was continuous; that her conduct and demeanor, and the declarations of the testator, subsequent to the making of the will, werei all indicative of an influence exerted upon the testator’s mind at the time the will was made,' or, at least in some degree, reflected upon it; and that it was competent to show any admission or declaration made by Mrs. Miller, the sole beneficiary, against her interest.

We will not attempt to review these questions separately. It may be that some of them were objectionable as to form. The testimony, however,- was excluded because of substance. We think the court took too narrow a view1 of the matter, and erred in excluding, the testimony. It is true that undue influence, in order to avoid a will, must be such as to destroy free agency of the testator at the time the instrument is made. It must be a present restraint operating on the mind of the testator at the time of the making of the testament. Blit, as was said by Mr. Justice Brewer,

“The question of undue influence is one of peculiar character; it does-not arise until after the death of the one who alone fully knows the influences which have produced the instrument; it does not touch the' outward act, the form of the instrument, the signature, the acknowledgment; it enters the shadowy land of the mind in search of its condition and processes.” After stating in a general way what things may be inquired into, he further states: “This opens a broad field of inquiry and gives to such a contest over a will a wider scope of investigation than exists in ordinary litigation.” (Mooney v. Olsen, 22 Kan. 69.)

At the outset it is well to observe that the will was drawn at the request and direction of the sole beneficiary, who was active in procuring and superintending its execution. There are cases holding that, under such circumstances, a presumption of undue influence arises sufficient to' cast the burden of proof upon the proponent to' show that the will was voluntarily executed. Other authorities hold that the burden is not shifted, but that it merely raises .a suspicion which ought to appeal to the vigilance of the court; that such wills are not looked upon with favor; and that the court will cautiously and carefully examine into* the circumstances which were attendant upon their execution, and will scan with a scrutinizing eye the evidence offered to procure their probate; and such circumstances may, in some instances; be sufficient to exclude the proposed will, unless the suspicion is removed and the court is judicially satisfied that the paper propounded does; in fact, express the true will of the deceased. (Underhill on Wills, section 137; Delafield v. Parish, 25 N. Y. 9.) We agree with the author above cited and with the authorities holding that the latter is the safer and the better rule. It is, however, claimed by the respondent that the rule has no application because the beneficiary here did not herself write the.will, and that the rule should be applied only to such cases. But the beneficiary gave the instructions for the will, directed its terms, and it was drawn at her request, and, in judgment of law, it must be regarded as written by berself. We perceive no difference as to whether she herself wrote the will, or as to whether it was written by another at her request and under her direction. (Delafield v. Parish.) A will made under such circumstances ought to appeal to the vigilance of the court and open a broad field of inquiry. '

While the court admitted in evidence statements and declarations made by the testator and by Mrs. Miller at or about the time of the execution of the will and permitted plaintiff to show Mrs. Miller’s feelings of hostility towards the deceased’s children as manifested by her prior to and about the time of the making of the will, yet, in the main, the court excluded evidence of such feelings of hostility, and declarations against interest, manifested and made by Mrs. Miller subsequent to' the making of the will, as well as many declarations and statements made by the testator. It seems the theory upon which this evidence was excluded was that the subsequent declarations and conduct of Mrs. Miller were immaterial and incompetent, and that the matter attempted to be elicited was too remote. The law, however, seems to be well settled that the admissions and declarations of the legatee are admissible in evidence' against the will where he is the sole beneficiary under it. Such evidence is admissible not only as bearing upon the credibility of the legatee when a witness, but also as substantive evidence of an admission against interest of a fact in issue. (Underhill on Wills, section 163; Saunders’ Appeal, 54 Conn. 108, 6 Atl., 193; Gordon v. Burris, 141 Mo. 602, 43 S. W. 642; 29 A. and E. Enc. L. 119.) Such admissions are competent evidence no matter when made. The time, place, and circumstance of their making go to the weight, not to the competency, of the evidence. Being substantive evidence of a fact in issue, the plaintiff was entitled to have admitted that distinct class or species of evidence, regardless of whether the original transactions with respect to which the admissions were made were clearly or only slightly supported. It is also competent to show the conduct of the person charged with procuring the will to have been made under undue in fluence both before and after its execution, as tending' to show his influence over the testator at the time the will was made. (Wilbur v. Wilbur, 138 Ill. 446, 27 N. E. 701.) It is also well settled that, while the declarations, of the testator are not admissible as mere impeachment of the validity of the will, yet, in so far as the state of mind of the testator is material to the inquiry, and as to whether undue influence was exerted, the declarations of the testator showing his state of mind are admissible upon such issue. His likes and dislikes, his feelings of affection towards persons interested in the will, or his hatred and antipathy towards others may always be shown. It is important to ascertain whether the mind of the testator was free from constraint at the time of the execution of the will, whether his mind was then permitted to work out his intentions, or whether his mental operations were directed and dominated by the stronger will of the person who is alleged to have exerted undue influence. What a man says to those about him is a reliable test of the strength or weakness of his mental condition. For such purpose the declarations made by the testator, both before and after the execution of the will, may be shown. (Underhill, section 161.) Of course, they must be of such character and of such relevancy as to tend to reflect the state or condition of the testator’s mind at the time of the execution of the will, and must not be so remote as to1 indicate no such tendency. But the question of remoteness is not to be determined alone from the mere period of time between the execution of the will and the making of the declarations. What may be unreasonable and remote in one case may be reasonable and not remote in another. No fixed standard in this respect can be laid down. It must largely depend upon the facts of each particular case, and the circumstances, under which the declarations are made. It may well be said of this case, as was said by the court in the case of Haines v. Hayden, 95 Mich. 332, 54 N. W. 911, 35 Am. St. Rep. 566:

“The testimony relating to the subsequent conditions and declarations of the testator., and the continuous dominion over him* was admissible for the purpose of weakening the presumption of the validity of the will to be drawn from its nondestruction during the period of ten years. . . . Is evidence of subsequent declarations admissible as tending to show the fact that the influence exerted accomplished its purpose and subjected the testator’s will to that of the beneficiary? It is difficult to perceive why, on principle, such testimony is not to be received for this purpose. The state of the testator’s mind at the very time of the execution of the will is, it is, of course, clear, the question to be solved, but it very rarely occurs that this state of mind can be shown by declarations made at the very moment of the execution of the will. . . . It is the theory'-of the contestant that the belief in her illegitimacy had been induced before the will was made; that this belief was kept alive by Margaret (the beneficiary) from that time on; that all these transactions were connected so closely as to constitute really one continuous effort by Margaret to create and to fan and to keep alive this belief to her profit by first causing the will to be made, and by thereafter preventing its revocation by the same means; and that all that was done in this regard was simply in furtherance of one fraudulent scheme, which related, not only to the inducing of the will, but the prevention of its revocation.”

As in the ease just cited, so here, the facts and circumstances occurring after the making of -the will were facts and circumstances with which the beneficiary was connected, and were admissible as tending to identify the agency which produced the original result, and as tending to fortify antecedent conditions. In the ease at bar there is evidence which, if believed, tended to show a continuous effort on the part of the testator’s wife to create in his mind a feeling of disregard for his children, and that she pro-cured the making of the will in the first instance against his wishes, and thereafter, by the same means, prevented a revocation of it. In view of such facts, and to weaken the presumption of the validity of the will to- be drawn'from its nondestruction during the period of ten or eleven years, we think the evidence was not open to objection on the ground of remoteness, especially in view of the fact that the presumption referred to was most strongly indulged and urged by the respondent. It is no answer to say because some of these witnesses were permitted to- testify to similar transactions and facts occurring at or about the time of the execution of the will, that therefore no prejudicial error was committed in excluding the subsequent transactions, declarations, and admissions. As pointed out in the case just cited, the plaintiff was entitled to the excluded testimony not only as substantive evidence of a fact in issue, but also as bearing on the question of the continuity of the alleged exerted influence and the prevention of a revocation of the will by the same means.

4. Several witnesses/ daughters of the testator, who' were called on behalf of the plaintiff, on defendant’s objection, were not allowed to testify as to any declarations or statements made by the testator or Margaret Miller, the sole legatee, or as to any transaction with either of them, or as- to any matter of fact which must have been equally within the knowledge of the witness and Thomas Miller or Mrs. Miller. The plaintiff MissMargaret Miller was not permitted to answer the questions as to whether in the year 1890, the year the will was made, and while visiting the Millers, she had any business dealings with Mrs. Miller, nor as to what Mrs. Miller’s conduct and feelings then were towards her, nor thereafter as to' any conversation had with Mrs. Miller about the property left by the testator. Another daughter, Mrs. Morgan, was not permitted to testify that Mrs. Miller told her that Mr. Miller was easily influenced and that she (Mrs. Miller) could influence him any way-she pleased. These, and other witnesses, daughters of deceased, were not permitted to testify to any conversation had'with Mrs. Miller touching any matter in issue, nor as to her feelings of jealously or antipathy manifested by her towards them, and her efforts in avoiding the presence alone of Mr. Miller alone with any of his children, nor as to statements made by their father of his success in business, his regard and love for them, and his desire of having them with or near him, but being prevented by his wife from doing so, cautioning them not to write to him about money matters, the jealous and disagreeable dispositon of his wife and her constant endeavors to cause him to disregard his children, his unhappy life on account of it, his intentions of leaving all' his property to- his children, who, he said, were bis rightful heirs and were entitled to it, nor as to any statements made by, or any transaction had with, either Mr. Miller or Mrs. Miller, or as to any matter of fact which must have been equally within the knowledge of the witness and Mr. Miller or Mrs. Miller. These rulings were made under sections 3412 and 3413, Revised Statutes* 1898, which sections, it is claimed, disqualified the witnesses. Section 3412, so far as material, provides that all persons, except as specified in the subsequent section, may be witnesses, and that neither parties, nor other persons who- have an interest in the event of the action or proceeding, are excluded. Section 3413, so far as material, provides that the following persons cannot be witnesses:

“A party to any civil action, suit or proceeding, and any person directly interested in the event thereof, and any person from, through or under whom such party or interested person derives his interest or title or any part thereof, when the adverse party in such action, suit or proceeding claims or opposes, sues or defends as guardian of any insane or incompetent person, or as the executor or administrator, heir, legatee, or devisee of any deceased person, or as guardian, or assignee, or grantee, directly or remotely, or such heir, legatee or devisee as to any statement by, or transaction with such deceased, insane, or incompetent person, or matter of fact whatever, which must have been equally within the knowledge of both the witness and such insane, incompetent, or deceased person, unless such witness be called to testify thereto by such adverse party, so claiming or opposing, suing or defending in such action, suit, or proceeding.”

The first question presented is, Does the statute- apply to a contest o-f a will ? If it does, then the second question is, Were the witnesses such as are named in the statute as being disqualified? The statutes of the various states differ, but there is an underlying principle upon which all of them are founded. The purpose of these statutes is to guard against the temptation to give false testimony in regard to a transaction in question on the part of a surviving party, and, further, to put the two parties to the suit upon terms of equality in regard to the opportunity of giving testimony (3 Jones, Ev. 190), and. that the scope of the rule excludes the testimony of the survivor of the transaction with a de .cedent when offered against the latter’s estate (Wigmore on Ev. 578). The statute in this regard is intended to- protect the estates of deceased persons from assaults, “and relates to proceedings wherein the decision sought by the party so testifying would tend to reduce or impair the estate, and does not relate to the relative rights of the heirs or devisees as to the distribution of an estate in a proceeding by which the estate itself is in no event to be reduced or impaired.”' (Pigg v. Carroll, 89 Ill. 205; Fleming v. Mills, 182 Ill. 464; 55 N. E. 373; Henry v. Hall, 106 Ala. 84, 17 South. 187, 54 Am. St. Rep. 22; Flood v. Dragoff, 79 Ky. 607; McCoy v. Conrad, 64 Neb. 150, 89 N. W. 665; Williams v. Miles, 68 Neb. 463-479, 94 N. W. 705, 96 N. W. 151, 62 L. R. A. 383, 110 Am. St. Rep. 431; McHugh v. Fitzgerald, 103 Mich. 21, 61 N. W. 354; Mackin v. Mackin, 37 N. J. Eq. 528; Hays v. Ernest, 32 Fla. 18, 13 South. 451; Shailer v. Bumstead, 99 Mass. 112; Foster's Ex’rs v. Dickensen, 64 Vt. 233, 24 Atl. 253; Poulson v. Stanley, 122 Cal. 655, 55 Pac. 605, 68 Am. St. Rep. 73; Millay v. Wiley, 46 Me. 230; Tucker v. Whitehead, 59 Miss. 594; Harris v. Hays, 53 Mo. 90.) These authorities, and others which can be cited, hold that the controversy such as here is between living parties, who, on the on© side, are the-devisees or legatees under the will, and on the other, the heirs at law of the testator. The former claim to take the estate under the will, the latter, under the statute regulating-the descent of estates, insisting that the alleged will is a nullity. The act of the testator in making the alleged will is the only subject-matter of the investigation. The estate-of the testator is not interested.' The interests of these claiming to succeed to it .either by operation of law or by operation of the will are alone involved. The estate remains intact and undiminished whatever may be- the result of the controversy, and the subject-matter of the investigation is not a transaction with nor a statement by the decedent. As to such an investigation, the parties to the suit and those interested in the result thereof are- upon terms of equality in regard to the opportunity of giving testimony. Our conclus ion, therefore, is that all the parties interested are competent to testify to any fact which is relevant and material to the issue involved, and that the court ■ erred in excluding the proffered testimony. We are aware of some cases which hold contrary to this ruling, and that the conclusion reached by us is in conflict with the case of Atwood's Estate, 14 Utah 1, 45 Pac. 1036, 60 Am. St. Rep. 878, where the statute was given application in the contest of a will. But the question as to its application in such a ease was not there discussed nor considered. The only question considered was ■whether the witnesses claimed to be disqualified were such persons as are named in the statute. However, the Atwood Case, so far as in conflict with the holding in this case, is overruled. We also are of the opinion that, were the statute given application, while it would disqualify the witnesses from testifying as to matters of fact which must have been equally within the knowledge of the testator, or as to any transaction with or statement made by him, yet it would not disqualify them from testifying as to statements made by or transactions with Mrs. Miller, deceased, or as to matters of fact which must have been equally within her knowledge, notwithstanding the fact that Mrs. Livingston, her heir, in her individual capacity, was a party defendant and adverse to the plaintiff in the action. It is conceded by counsel for the respondent, that, had she not been such a party, the witnesses probably would not have been disqualified from testifying as to statements, made by, or transactions with, Mrs. Miller. If any estate at all was involved in the controversy, it was the estate of Thomas Miller, deceased, and not the estate of Margaret Miller, deceased. Margaret Miller was the legatee or devisee of the deceased, Thomas Miller. Mrs. Livingston was the heir of the de-visee. To bring Mrs. Livingston within the statute as an opposing party, she must be a guardian, assignee, or grantee of an heir, legatee, or devisee of the deceased person, Thomas Miller. While she was an heir of the legatee or devisee- of the deceased person, she was not a guardian, assignee, or grantee of such legatee or devisee; and hence does not come within the statute specifying the persons as opposing suitors, and therefore the -witnesses are not such as are named in the statute as- being disqualified. The following cases well illustrate the competency of the witnesses to testify as to the statements made by Mrs. Miller, deceased, and as to matters of fact equally within her knowledge: De Baum's Will (Sur.), 4 N. Y. Supp. 342; Fleming v. Mills, 182 Ill. 464, 55 N. E. 373.

5. Having reached the conclusion that the. court erred in excluding competent testimony material to the issue involved, the question arises whether we should consider the excluded testimony as in evidence in connection with all the other evidence in the case, and pass upon the question as to whether the findings are against the evidence or as to what findings and judgment ought to be made. This depends largely upon the view taken by us as to whether the action is one at law or in equity. We do not, however, desire to be understood that we would, in all cases in equity, so consider excluded evidence, but, if this case be one at law, we are precluded from such consideration of the testimony, except to determine the sufficiency of all the evidence to support a judgment. As to such sufficiency we entertain no doubt. The Probate Code, under the title of the “Probate and Contest of Wills,” provides (section 3794, Revised Statutes 1898):

“If the court is satisfied, upon the proof taken, or from the facts found by the jury, that the will was duly executed, and that the testator at the time of its execution was of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence, a certificate of the proof and of the facts signed by the judge and attested to by the seal of the court, must be attached to the will.”

Section 3796 provides that any person who has not contested the will, etc., may contest the same or the probate thereof at any time within one year after its admission to probate. Section 4041 provides that all issues of fact joined in probate and guardianship proceedings must be tried in conformity with the requirements of the Code- of Civil Pro cedure, and in all such proceedings the party 'affirming is the plaintiff, and the one denying or avoiding is defendant. Section 4042 provides that, if no jury i® demanded, the court or judge must try the issues joined. If the trial of the issues joined requires an examination of an account, the court or judge must try the matter or refer it, and no jury can be called. We think the issues as joined presented a case at law, and that either party on demand therefor would have been entitled to a trial- by jury as matter of course in conformity with the requirements of the Code of Civil Procedure. Being a case at law, we are not at liberty to treat as found that which might have been found, or to weigh and pass upon conflicting evidence, or to pass upon the credibility of the witnesses. In such a case these are matters within the province of the trial court, when the case is tried before the court without a jury, and within the province of the jury when tried before a jury. The rule applying to conflicts in, and weight of, evidence, and the credibility of witnesses, is the same in a will contest as in other cases at law tried before the court or jury. These views find support in the California cases under statutes quite similar to ours. (Carpenter v. Jones, 121 Cal. 362, 53 Pac. 842; In re Wilson, 117 Cal. 262, 49 Pac. 172, 711; Estate of Tibbetts, 137 Cal. 123, 69 Pac. 978; Estate of Wickes, 139 Cal. 195, 72 Pac. 902; Langdon v. Blackburn, 109 Cal. 19, 41 Pac. 814; Estate of Benton, 131 Cal. 472, 63 Pac. 775.) It is, therefore, not within our province to pass upon the weight or effect of the excluded or admitted testimony, and from all of it determine what findings of fact ought to be made.

The judgment is therefore reversed, and a new trial granted. Costs are to be taxed against respondent.