Home/Utah Supreme Court/Yowell v. Ogden State Bank

Yowell v. Ogden State Bank

285 P. 285, 75 Utah 312
CourtUtah Supreme Court
DecidedJanuary 31, 1930
DocketNo. 4839
StatusPublished
Cited by2 cases

This text of 285 P. 285 (Yowell v. Ogden State Bank) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yowell v. Ogden State Bank, 285 P. 285, 75 Utah 312 (Utah 1930).

Opinions

ELIAS HANSEN, J.

This appeal involves the validity of what by our statute is called an “olographic will,” and the validity of two so-[314]*314called codicils. The contestants claim that neither the will nor either of the codicils is in the handwriting of the purported testator, but that all are forgeries. They further claim that, though it be found that the will and the codicils were written by the purported testator, nevertheless the will is invalid because the whole of it is not in the handwriting of the alleged testator, and hence was not executed in compliance with the statute requiring such a will to be entirely written, dated, and signed by the hand of the testator. The case was tried to the court without a jury. Findings and conclusions were made that the will proper was in the handwriting of the alleged testator, and that the printed matter contained on the paper upon which the will was written was not a part of the will. A judgment was rendered accordingly, admitting to probate as the last will and testament of John W. Yowell, deceased, only the portion of the instrument thus found to be in his handwriting. From that judgment the contestants have prosecuted this appeal. They claim that the findings and conclusions are not supported by sufficient competent evidence; that the will was a forgery; that the will indisputably was not wholly in the handwriting of the alleged testator; that the court erred in finding and regarding the printed portion of the instrument as not being a part of the will, and thus erred in admitting the will to probate.

The alleged testator, John W. Yowell, for more than twenty-five years lived at or near Elko, Nev., where prior to his death he owned a cattle and horse ranch. For eight or nine years he conducted a general merchandise business at Elko, Nev. He owned the real estate and buildings upon and in which the business was carried on, together with other real estate. He was a capable and successful business man. He was never married. He had no relatives in either Nevada or Utah. In about 1921 or 1922 he sold out his business at Elko and retired. At about that time he came to Ogden, Utah, and shortly thereafter took rooms with a Mrs. Evelyn C. Miller, who was running a rooming house at Ogden. He [315]*315continued to reside at the rooming house of Mrs. Miller, except for visits made by him to Elko and Virginia, until his death, which occurred in Ogden at the rooming house of Mrs. Miller in March, 1927. He paid his room rent promptly each month by checks payable to Mrs. Miller, drawn on an account which he had at the Ogden State Bank. When he died he had on deposit in a. checking and in a savings account in the Ogden State Bank $14,971. He also then owned an estate at Elko consisting of money in a bank and real estate amounting to about $35,000. The exact age of the deceased when he died is not shown, but those who knew him placed his age at between seventy-five and eighty years. He left surviving him as his heirs at law a number of nephews and nieces residing in Virginia. Two of them, a nephew and a niece on July 5, 1927, filed a petition in the district court of Weber county, Utah, asking that the Ogden State Bank be appointed administrator of the estate.

Shortly after the death of the deceased, the bank received from Mrs. Miller the key to his safety deposit box at the bank. The box was opened in the presence of Mrs. Miller and her attorney and others. Papers and stocks of different kind were found in the box. No sealed envelopes or other documents were found in the box with reference to a will or other disposition of any property of the deceased. At that time Mrs. Miller made no statement or claim with respect to a will, or that she had any interest whatever in or to the estate of the deceased. It was two or three months thereafter, and several days after the bank had been appointed administrator of the estate, that Mrs. Miller delivered to the bank three sets of keys which were to the deceased’s personal effects in his room in the house of Mrs. Miller. She had the keys in her own safety deposit box in the bank and took them out of the box and handed them to the bank at its request. The keys, when handed to the bank, were in three small, sealed letter-size envelopes. Some of the keys were to boxes, drawers, and a trunk in the room occupied by the deceased. When the trunk was [316]*316opened, there was found, among other things, a tin box locked with a small padlock. When the tin box was opened, there was found in it, among other things, a large sealed envelope, referred to as Exhibit E. There was no writing on this envelope except the name of “J. W. Yowell” stamped on it by a rubber stamp. In this envelope was a smaller sealed envelope addressed to Mrs. Evelyn G. Miller, and in that was a still smaller sealed envelope also addressed to Mrs. Miller, and in that was found what is claimed to be the will. In the large envelope, Exhibit E, was also found another smaller sealed envelope addressed to the Ogden State Bank and in that two smaller sealed envelopes, one addressed to the bank and the other to A. P. Bigelow, an officer of the bank. In one of these envelopes was found what is claimed to be one of the codicils, and in the other envelope another so-called codicil.

After these documents had been found, the Ogden State Bank, on July 15,1927, petitioned the district court of Weber county to admit to probate the purported will and for issuance to it of letters testamentary. In the petition it is alleged that the estate of John W. Yowell in Utah consisted of $14,795.71, moneys in the Ogden State Bank, and of other property in the state of Nevada consisting of more than $31,000; that by the terms of the will and codicils, the deceased had indicated an intention that the Ogden State Bank act as executor of the estate. About twenty-three nephews and nieces of the deceased, whose names and addresses are set up in the petition, were alleged to be the only surviving heirs of the deceased, and Evelyn C. Miller as the only devisee or legatee of the will, to whom the whole of the moneys on deposit in the Ogden State Bank had been-bequeathed. The heirs appeared and contested the admission of the will to probate, and, among other things, alleged that the purported will and codicils were not in the handwriting of the deceased, but were forgeries, and that the whole of the will was not in the handwriting of the deceased.

The purported will is an unusual document. It was writ[317]*317ten on one of the printed bills used by the deceased when he was in business at Elko. The printed billhead itself is as follows:

J. W. Yowell
Dealer in
General Merchandise.
Terms: Cash. Crockery, Hardware, Etc. Elko, Nevada
Interest charged on All -19-
Accounts Past Due M-
Claims on Account of This Invoice must be made within 5 Days after statement is Rendered. (Red)
Date Description (Blue) Charges Credits Balance

Pasted on the billhead, under the words, “J. W. Yowell,” and over the words, “Dealer in General Merchandise, Crockery, Hardware, etc.,” appears a printed stanza which reads as follows:

“Farewell.
“Farewell! —but whenever you welcome the hour That awakens the night-song of mirth in your bower Then think of the friend who once welcomed it too And forgot his own griefs to be happy with you all”

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Related

Ogden Livestock Shows, Inc. v. Rice
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8 P.2d 591 (Utah Supreme Court, 1932)

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Bluebook (online)
285 P. 285, 75 Utah 312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yowell-v-ogden-state-bank-utah-1930.