Opinion
Aug. 15, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Wilson, Boltz & Boyens, Blaine L. Boyens, Denver, for proponent-appellee.
Creamer & Creamer, Alan H. Bucholtz, Denver, for caveators-appellants.
ENOCH, Judge.
Samuel Grimes executed an instrument purporting to be his last will and testament on April 14, 1969. Following his death the next year, this instrument was presented for probate by Eugene C. Porter (proponent), who was named executor in the will. Caveat was thereafter filed by Josephine Wilson and Harry Wilson, Grimes' sister and nephew (caveators), who alleged that the purported will was not executed as required by C.R.S.1963, 153--5--2, that Samuel Grimes did not possess testamentary capacity at the time of its execution and that the will was the result of undue influence exercised by proponent. Trial was to a jury which found the instrument to be the last will and testament of Samuel Grimes and the trial court issued an order admitting it to probate. Caveators appeal. We affirm the order of the trial court.
I.
Caveators contend that as a matter of law C.R.S.1963, 153--5--2 was not complied with in that Grimes did not, in the precise statutory language, orally declare the instrument to be his last will and testament, nor formally request the witnesses to act as such.
Contrary to caveators' assertion, it is not necessary for a testator to specifically declare that a writing is his last will and testament if he clearly indicates such intention by work or deed. Estate of Maikka, 110 Colo. 433, 134 P.2d 723. Further, a testator need not personally request a witness to act as such, but may ratify another's request that he so serve. Scott v. Leonard, 117 Colo. 54, 184 P.2d 138; Estate of Maikka, Supra. In the present case, the attestation clause stated that the instrument was declared by Grimes to be his last will and testament and that he had requested the witnesses to act as such. This recitation and the testimony of the attesting witnesses support the jury's finding that the will was properly executed. In re Estate of Murphy v. Warner, 29 Colo.App. 297, 483 P.2d 1364.
II.
Caveators next contend that under the evidence presented, the court should have ruled as a matter of law that Samuel Grimes was not possessed of testamentary capacity at the time that the will was executed and that the will was the result of undue influence exercised by proponent. We do not agree.
There was a conflict in the evidence as to his testamentary capacity and as to the issue of undue influence. These issues were properly submitted to the jury and there is sufficient evidence to support its conclusion. In re Estate of Murphy v. Warner, Supra; Davis v. Davis, 64 Colo. 62, 170 P. 208.
We have examined the caveators' other allegations of error and find them to be without merit.
Order affirmed.
DWYER and SMITH, JJ., concur.