
    In re ESTATE OF WAH-KON-TAH-HE-UM-PAH. EXENDINE, Ex'r v. RED CORN et al.
    No. 14794
    Opinion Filed Oct. 21, 1924.
    Motion to File Second Petition for Rehearing Denied Jan. 20, 1925.
    (Syllabus.)
    1. Wills — Mental Capacity of Testator — Incompetent Under Guardianship.
    Tbe mere fact that a testator bas been adjudged incompetent to manage bis property and business affairs, and that sucb incompetency bas not been judicially removed at the time of making a will, is not sufficient of itself to show a mental incompetency to make a will, nor does tbe existence of a guardianship of itself render one legally incapacitated to make a will.
    2. Same — Mental Capacity a Question of Fact.
    Tbe question of mental capacity to make a will is not one of law, but of fact.
    3. Same — Capacity at Time of Making Will.
    Tbe time of the making and execution of a will is tbe period of time from which the mental capacity of a testator must be determined.
    4. Same — Existence of Guardianship as Proof.
    The existence of a guardianship does not constitute legal incapacity to make a will, but is no more than evidence of the fact of incompetency, and may be overcome by parol proof that testator was mentally competent at tbe time the will was executed.
    Error from District Court, Osage County; Chas. B. Wilson, Jr., Special Judge.
    In tbe matter of probate of will of Wah-Kon-tah-he-um-pah (Mrs. Bed Corn) ; A. A. Exendine, executor, proponent, and Bed Corn and others, contestants. Judgment dé-nying probate of will, and proponent brings error.
    Reversed, with directions.
    A.'B. Burris and E. J. Giddings, for plaintiff in error.
    Chas. A. Holden and Robert Stuart, for defendants in error W. E. McGuire, Adm’r,- and John Woods.
    G. B. Sturgell, J. C. Coirnett, and Jesse J. Worten. for defendant in error Red Corn.
   HARRISON, J.

This is an appeal from an order of the district court, denying tbe admission of a will to probate. Tbe testatrix, Mrs. Red Corn, Wah-kon-tah-he-um-pah, was an Osage Indian allottee. Her will was offered to tbe county court and admitted to probate. John Woods, one of tbe legatees-mentioned in tbe will, joined by other defendants in error herein, protested against tbe probation of sucb will, and upon its being admitted to probate appealed from tbe county court to tbe district court, where tbe validity of the will was tried de novo.

Proponent, plaintiff in error, introduced tbe will in evidence, and introduced tbe testimony of the subscribing witnesses and other witnesses, that at tbe time of making sucb will the testatrix w-as of lawful age, sound mind and memory, not acting under duress, menace, fraud, or undue influence, that she understood tbe terms of tbe. will, what disposition she wanted made of her property, and to whom she desired to bequeath it. These facts were each proved by the positive testimony of witnesses whose credibility is not assailed, and were introduced in order to meet and disprove tbe allegations in contestant’s answer or protest.

At tbe conclusion of tbe proponent’s testimony, contestants, defendants in error, offered no testimony, but demurred to tbe testimony of proponent. Tbe demurrer was overruled, whereupon contestants then moved for judgment denying tbe probate of such will, and tbe court, though it had overruled the demurrer to tbe testimony, sustained tbe motion for judgment denying the probate of the will, and proponent, plaintiff in error, brings the cause here.

There is but one main question involved:. "Whether the proponent sufficiently met the requirements of law as to the validity of the will; that is, whether he made a prima facie case, which, in the absence of rebutting testimony, showed a valid will.

The legal effect of the demurrer being to confess the truth of the testimony submitted by proponent, it seems to us that every requirement of the law was sufficiently met, and that in the absence of any rebutting testimony the trial court was correct in overruling the demurrer, but erred in denying the probate of the will.

Two questions are presented by contestants, defendants in error, vix.:

(1) That testatrix having been adjudged incompetent to manage her estate and a guardian having been appointed to manage her affairs, she could not make a valid will until judicially restored to competency.

(2) The order of the county court adjudging her incompetent to properly manage her estate and appointing a guardian for such purpose had the effect of adjudging her ■mentally incapacitated to make a will.

Deferring discussion of these two propositions for the present, the showing made by proponent may be summarized as follows:

The full text of the will together with all acknowledgments and indorsements is as follows:

“I, Mrs. Red Corn, alias Wah-kon-tah-he-um-pah, Roll No. 482, do hereby make, publish and declare this following to be my last will and testament:
“1st. I give and devise to my husband, Mr. Red Corn, alias Wy-e-gla-in-kah, Roll No. 481, my homestead estate.
“2nd. I give and devise to my brother, Wy-ne-she, Roll No. 518, my second filing.
“3rd. I give and bequeath to John Woods $1,000.00.
“4th. I give and bequeath to Cora Ogles-by $1,000.00.
“5th. I give and bequeath to Jennie Gray $1,000.00.
“6th. I give and bequeath to my house located at the Indian Tillage to Ralph Malone.
“7th. I give and bequeath to Lloyd Malone, the oldest son of Ralph Malone, the sum of $1000.00.
“8th. I give and bequeath to Raymond Red Corn Nycon Iron $500.00 each.
“9th I give and bequeath to John Ogles-by $1,000.00.
“10th. All the rest and remainder of my estate, including all royalties, annuities, and trust funds and all and every estate real and personal of which I may die possessed I give, bequeath and devise to my husband, Mr. Red Corn, alias Wy-e-gla-in-kah. whose Roll No. is 481.
“I hereby appoint and designate A. A. Exendine, an attorney of Pawhuska, Oklahoma, my executor of this my last will and testament.
“Mrs. Red Corn, nee Wah-kon-tah-he-um-pah.
“Subscribed by Mrs. Red Com, alias
“[Mark.]
“Wah-kon-tah-he-um-pah, in. the presence of each of us the undersigned, and I, Orlando Kenworthy, at her request signed her name and she placed her thumb mark to her signature in the presence of each of us, the undersigned, and at the same time declared the same to be her will and testament and we thereupon at the request of Mrs. Red Corn, alias Wah-kon-tah-he-um-pah, Roll No. 482, ini her presence and in the presence of each of us sign' our names hereto, as witnesses and further si ate fbaii each of us fully understand both the English .a.n,d Osage ianainage, .and that Orlando Kenworthy, one of the witnesses, read and interpreted the foregoing will to her and caused her to understand the same, and that this will con- ' sists of one sheet of paper executed this 15th day of August, 1920, at the Indian Village, near Pawhuska, Oklahoma. “Witnesses.: Edward Brunt,
“John McFall,
“Orlando Kenworthy.”
“Department of the Interior of Indian Affairs, March 15, 1921.
“The within instrument, dated August 15, 1920, purporting to be the last will of Wah-kon-tah-he-um-pah, or Mrs. Red Corn, deceased, Osage allottee No. 482, Is hereby recommended for approval in accordance with the provisions of the Act of April 18, 1912 (37 Stat. 86-88), and the regulations of the Department.
“Respectfully,
“E. B. Merritt, “Assistant Commissioner.”
‘.‘Department of the Interior,
“Office of the Secretary,
“March 22, 1921.
“The within will of Wah-kon-tah-he-um-pah or Mrs. Red Corn, deceased Osage al-lottee No. 482. is hereby approved under the Act of April 18. 1912 (37 Stat. 86-88), and regulations of the Department.
“S. G. Hopkins, “Assistant Secretary.”

The testimony in substance was that Mrs. Red Oorn was an aged woman, that she was in an Indian village near Pawhuska and sent a Mr. Kenworthy to Pawhuska for a lawyer, Mr. Exendine, to draw her will. Kenworthy was not a legatee, but was a witness to the will and acted as interpreter for the lawyer and testatrix as to what she w-anted done with her property; that the lawyer made a pencil memorandum of the names of the legatees and the portion which each was to receive; that after taking these pencil notes the lawyer went out and borrowed pen and ink and drew the will, returned to the tent where the testatrix was staying, and each clause, each devisee, and each provision of the will was read separately by the lawyer, interpreted to her by the interpreter, and to each provision she both nodded her assent and said in English “all right”; it appears that she knew the meaning of the words “all right”; that after each provision was gone over separately, the entire will was read over and interpreted as a whole to her, and that she gave the same assent thereto.

The testimony of other witnesses showed, that she was of sound mind, capable of knowing and did know what disposition she desired to make of her property, and to whom she was bequeathing it; that she was under no influence other than her own will and ’desire; that all the steps toward the making and execution of the will were had at her request.

Every requirement of the law to constitute a valid will, it seems ¡t'o us, was sufficiently met by testimony of disinterested witnesses, witnesses who received no benefits from the will; in fact, no contention is made that the proof failed in any wise to meet all requirements of the law, but protestants rely solely upon the two propositions, “that she had previously been adjudged incompetent to manage her business affairs and a guardian appointed,’'’' atad “that such incompeteney not having been judicially removed, she was legally incapacitated to make a will.”

It is probable that the trial court sustained the motion for judgment and denied admission of the will to probate on the above two propositions, although it is not clear from the record upon what ground it was denied. It could not have been denied upon the ground that the evidence was insufficient in any particular, loecause the court overruled the demurrer to the evidence; the court then must have rendered judgment upon the above grounds, argued by defendants in error in support of such judgment. The me?e fact of her having been adjudged incompetent to manage her property and business affairs and that such incompeteney had not been judicially removed is not sufficient of itself to show a mental incompeteney to make a will, nor does the existence of a guardianship, of itself, render one legally incapacitated to make a will. The uncontradict-ed positive testimony of a number of disinterested witnesses was that she was mentally competent to make a will at the time she made it. In the face of this testimony the mere fact of her having been adjudged incompetent to properly manage her business affairs is not of itself sufficient to legally constitute mental incompeteney. There was no evidence offered nor any contention made that even at the time the guardian was appointed to manage her business affairs, that she was even ithen mentally incompetent to make a will. The evidence showed that she was, at that time, advanced in years; it appears from the record that her property consisted of allotments, royalties from mineral and oil leases, - and her proportionate share of the monies due the Osage Tribe from the government; under such circumstances she might reasonably have been incompetent to successfully manage her business affairs and yet been fully competent to know what she wanted done with her property when she died and to whom she wanted to leave it. The question of mental capacity to make a will is not one of law, but of fact. Bilby v. Stewart, 55 Okla. 767, 153 Pac. 1173; Dickey v. Dickey, 66 Okla. 269, 168 Pac. 1018; also notes to Slaughter v. Heath (Ga.) 27 L. R. A. (N. S.) 1.

The time of the making and execution of the will is the point of time from which the mental capacity of testator must be determined. See 40 Cyc. 998, and authorities cited.

The evidence in this case, being uncon-tradicted, is sufficient to show mental capacity at the time the will was executed.

The fact that a testator may be under guardianship because of incompeteney to manage the affairs of his estate does not constitute legal incapacity to make a will, but is no more than evidence of incompetency and may be overcome by -parol proof that testator was mentally competent at the time the will veas executed. See Hill v. Davis, 64 Okla. 253, 167 Pac. 465; also Mullholland’s Est., 217 Pa. 65, 66 Atl. 150; Williams v. Robinson, 39 Vt. 267; Ames, Will, 40 Or. 495, 67 Pac. 737; Re Cowdry, 77 Vt. 359, 60 Atl. 141; Rice v. Rice, 50 Mich. 448, 15 N. W. 545; Slinger’s Will, 72 Wis. 22, 37 N. W. 236.

It is our conclusion, therefore, in view of the above authorities and observations herein made, that the judgment of the trial court cannot be sustained upon the grounds of an existing guardianship alone, and the evidence being sufficient to establish mental capacity at the time the will in Question was made and likewise sufficient to meet all other essential requirements of th’,e law, the judgment is. reversed, with directions to admit the will in question to probate.

Reversed, with directions.

McNEILL, O. J., and JOHNSON, BRAN-SON, WARREN, MASON, and GORDON, JJ., concur.  