Opinion
May 30, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Kenneth D. Breneman, Fort Morgan, for caveatrix-appellant.
Geer & Goodwin, P.C., Edward O. Geer, Donald L. Dill, Denver, for proponent-appellee.
Page 905
PIERCE, Judge.
This action is a will contest. The caveatrix alleged that the will was invalid due to undue influence exerted by the proponent of the will. At the close of the evidence in a trial to the jury, the trial court directed a verdict in favor of the proponent and admitted the will to probate. The caveatrix appeals. We affirm.
From the evidence submitted by the proponent all necessary facts sufficient to sustain a prima facie showing that the will was valid were established. This being the case, the burden of proving undue influence rested upon the caveatrix. Johansen v. v. Schuettig, 118 Colo. 264, 195 P.2d 725. We conclude that the trial court properly determined that the caveatrix failed as a matter of law to meet this burden.
In ruling on the propriety of the directed verdict in favor of proponent, every fairly deducible inference and presumption arising from the evidence must be considered as facts proved in favor of contestants. Ofstad v. Sarconi, 126 Colo. 565, 252 P.2d 94. Caveatrix maintains that she established a prima facie case of undue influence by establishing: 1) that proponent and his wife were beneficiaries under the will; 2) that the proponent typed the will, at the request of the decedent; 3) that proponent procured some of the decedent's friends as witnesses to the will; 4) that the testator had some trouble with his eyesight and that he was unable to read very small print, such as a telephone book, without his glasses; 5) that although testator leafed through the will in the presence of the witnesses, they could not testify that he actually read it in their presence, and they could not state for certain that he was aware of the contents of the will.
These facts did no more than raise an innuendo that undue influence was exerted by the proponent and were not sufficient, as a matter of law, to sustain a verdict favoring the caveatrix based on any reasonable inferences of undue influence. Therefore, it was proper for the trial court to take this determination from the jury by directing a verdict.
Judgment affirmed.
SILVERSTEIN, C.J., and SMITH, J., concur.