Kavanagh, J.
Ollie G. Anderson died December 8,1955, at tbe age of 77, leaving a last will and testament dated August 15, 1938. She had lived all of her life in Hillsdale county. Her husband, Fred Anderson, died on December 24, 1937. They had 1 child, the contestant, Floyd Anderson, age 49 at the time of the trial. The will was prepared by attorney Paul Chase of Hillsdale, who was named executor therein, but who predeceased testatrix. Grace Hall, proponent of the will, drove testatrix to see attorney Chase about 1 week after July 4, 1938. Proponent was not present when testatrix discussed the drafting of the will with attorney Chase, nor was she present when the will was executed on August 15, 1938.
At the trial contestant admitted formal execution of the will. Contestant objected to the admission of the will to probate on the grounds that testatrix lacked mental competency or capacity to make a valid will; that the will did not represent the will or desire of said deceased, but was induced by fraud and undue influence practiced upon said deceased by the proponent of the will. The matter was brought on for trial in the circuit court of Hillsdale county and tried before a jury.
Mrs. Anderson and her husband had acquired during their lifetime a farm consisting of 107 acres in Hillsdale county, Michigan, and the usual personal property incident to the operation of a farm of this size. By the terms of the relatively simple will of testatrix, the only child, Floyd, was given the personal property and the life use of the farm. At his-death it was devised to Grace Hall, a grandniece of the decedent. In the event Grace Hall did not sur[172] vive Floyd, then the farm was devised to 2 of Grace Hall’s children.
At the close of contestant’s proof, motion for directed verdict was made hy proponent and decision thereon reserved under the Empson act.* At the close of all proofs, proponent renewed the motion for directed verdict, decision again being reserved. After verdict for contestant, motions for judgment notwithstanding the verdict and for new trial were made and denied.
So far as the question of undue influence is concerned, contestant’s only evidence on this subject is the fact that shortly after the death of testatrix’s husband, proponent, Grace Hall, frequently visited testatrix, and that proponent drove testatrix to the office of the attorney (who later drew her will) at the time of the original interview. There is no direct testimony of undue influence.
This Court has stated on several occasions that where there is no evidence of undue influence, it is erroneous to submit the question to the jury. Black-man v. Andrews, 150 Mich 322; In re Calhoun Estate, 346 Mich 227.
Undue influence exercised upon one who makes a will may become the basis for finding the will invalid, if by reason of that influence the right of the testator to freely exercise his discretion in disposing of his property has been taken away from him. Such influence is not to be presumed, but must be proved by the person seeking to have the will declared invalid. The mere fact that the opportunity existed for the exercise of such influence is not sufficient. It exists as a matter of law only when it is executed in such a fashion that the free will of the testator to dispose of his property as he sees fit is restrained in such a fashion that the will is not his own but that of the [173] person who influences him. In re Reed’s Estate, 273 Mich 334; In re Hannan’s Estate, 315 Mich 102.
The second ground of contestant’s ease is that the decedent lacked mental competency or capacity to make a valid will. This is a far more difficult question. This Court has had this question in all of its aspects before it many times in the past. It is apparent from reading the numerous cases that have been presented to this Court that it is not unusual for contestants of a will to attempt to relive the life of the testator through testimony of neighbors, relatives, and friends to show the peculiarities of the testator: personal likes and dislikes, grief over the loss of loved ones, confusion and bewilderment on occasions with respect to business matters, attachment to pets, tendency to have as a part of his human makeup those frailties which are the lot of fallen man, such as temper, jealousy, harboring of grudges, inability to agree with daughters-in-law, and the innate desire to see his property descend only to his side of the family, rather than to that of an in-law. In the instant case, these and many other peculiarities similar in nature were the subject of testimony by relatives, friends, neighbors, and even individuals who were not acquainted with the testatrix, over the period from December, 1937, (the date of her husband’s death) to December, 1955, the time of the death of testatrix.
Not satisfied with the appendices, we have reviewed the entire record. We do not find in it any facts that substantiate the charge of incompetency or incapacity to make a valid will.
To illustrate the type of testimony we have reference to, Anna Corey, a neighbor who had known Mrs. Anderson for 40 years, stated that in 1938, after Mr. Anderson died, there was a marked change in Ollie; that there was an unusual amount of weeping on her [174] part; that when talking with her, she noticed that there were breaks in her conversation, and that Mrs. Anderson complained of pressure pains in her head.
Rex Curey testified that Mrs. Anderson would not allow him to return a machine which had been borrowed from the Anderson farm before Fred Anderson died, claiming that the machine did not belong to her.
Earl Hoyt testified that Mrs. Anderson did not have the mental capacity to make a will. He testified that he had interviewed her with reference to increasing the insurance on her buildings and she stated that the amount carried was sufficient.
Floyd Anderson, the contestant, testified that his mother, during her lifetime, did not handle the farm business matters, and after his father’s death she referred the matters to him. He further testified that after his father’s death his mother was in a great state of grief and shock; that she stated that she had an awful pressure in her head; that on 1 occasion she became incensed because his wife had bought him an electric razor and had purchased an $800 piano; that she complained to him that she believed that her daughter-in-law was a spendthrift; that she stomped on the flowers in her daughter-in-law’s garden; that on 1 occasion she had decorated the graves of some of the farm animals previously buried; that on the death of her pet dog she had him make a casket and vault for the same; that she would constantly call him on the telephone any time of the day or night when she wanted something; that on 1 occasion she returned to the house during a minor fire, where he found her in bed with her dog, and where she thought she was perfectly safe, even though he had previously removed her from the house before calling the fife department.
Free access — add to your briefcase to read the full text and ask questions with AI
Kavanagh, J.
Ollie G. Anderson died December 8,1955, at tbe age of 77, leaving a last will and testament dated August 15, 1938. She had lived all of her life in Hillsdale county. Her husband, Fred Anderson, died on December 24, 1937. They had 1 child, the contestant, Floyd Anderson, age 49 at the time of the trial. The will was prepared by attorney Paul Chase of Hillsdale, who was named executor therein, but who predeceased testatrix. Grace Hall, proponent of the will, drove testatrix to see attorney Chase about 1 week after July 4, 1938. Proponent was not present when testatrix discussed the drafting of the will with attorney Chase, nor was she present when the will was executed on August 15, 1938.
At the trial contestant admitted formal execution of the will. Contestant objected to the admission of the will to probate on the grounds that testatrix lacked mental competency or capacity to make a valid will; that the will did not represent the will or desire of said deceased, but was induced by fraud and undue influence practiced upon said deceased by the proponent of the will. The matter was brought on for trial in the circuit court of Hillsdale county and tried before a jury.
Mrs. Anderson and her husband had acquired during their lifetime a farm consisting of 107 acres in Hillsdale county, Michigan, and the usual personal property incident to the operation of a farm of this size. By the terms of the relatively simple will of testatrix, the only child, Floyd, was given the personal property and the life use of the farm. At his-death it was devised to Grace Hall, a grandniece of the decedent. In the event Grace Hall did not sur[172] vive Floyd, then the farm was devised to 2 of Grace Hall’s children.
At the close of contestant’s proof, motion for directed verdict was made hy proponent and decision thereon reserved under the Empson act.* At the close of all proofs, proponent renewed the motion for directed verdict, decision again being reserved. After verdict for contestant, motions for judgment notwithstanding the verdict and for new trial were made and denied.
So far as the question of undue influence is concerned, contestant’s only evidence on this subject is the fact that shortly after the death of testatrix’s husband, proponent, Grace Hall, frequently visited testatrix, and that proponent drove testatrix to the office of the attorney (who later drew her will) at the time of the original interview. There is no direct testimony of undue influence.
This Court has stated on several occasions that where there is no evidence of undue influence, it is erroneous to submit the question to the jury. Black-man v. Andrews, 150 Mich 322; In re Calhoun Estate, 346 Mich 227.
Undue influence exercised upon one who makes a will may become the basis for finding the will invalid, if by reason of that influence the right of the testator to freely exercise his discretion in disposing of his property has been taken away from him. Such influence is not to be presumed, but must be proved by the person seeking to have the will declared invalid. The mere fact that the opportunity existed for the exercise of such influence is not sufficient. It exists as a matter of law only when it is executed in such a fashion that the free will of the testator to dispose of his property as he sees fit is restrained in such a fashion that the will is not his own but that of the [173] person who influences him. In re Reed’s Estate, 273 Mich 334; In re Hannan’s Estate, 315 Mich 102.
The second ground of contestant’s ease is that the decedent lacked mental competency or capacity to make a valid will. This is a far more difficult question. This Court has had this question in all of its aspects before it many times in the past. It is apparent from reading the numerous cases that have been presented to this Court that it is not unusual for contestants of a will to attempt to relive the life of the testator through testimony of neighbors, relatives, and friends to show the peculiarities of the testator: personal likes and dislikes, grief over the loss of loved ones, confusion and bewilderment on occasions with respect to business matters, attachment to pets, tendency to have as a part of his human makeup those frailties which are the lot of fallen man, such as temper, jealousy, harboring of grudges, inability to agree with daughters-in-law, and the innate desire to see his property descend only to his side of the family, rather than to that of an in-law. In the instant case, these and many other peculiarities similar in nature were the subject of testimony by relatives, friends, neighbors, and even individuals who were not acquainted with the testatrix, over the period from December, 1937, (the date of her husband’s death) to December, 1955, the time of the death of testatrix.
Not satisfied with the appendices, we have reviewed the entire record. We do not find in it any facts that substantiate the charge of incompetency or incapacity to make a valid will.
To illustrate the type of testimony we have reference to, Anna Corey, a neighbor who had known Mrs. Anderson for 40 years, stated that in 1938, after Mr. Anderson died, there was a marked change in Ollie; that there was an unusual amount of weeping on her [174] part; that when talking with her, she noticed that there were breaks in her conversation, and that Mrs. Anderson complained of pressure pains in her head.
Rex Curey testified that Mrs. Anderson would not allow him to return a machine which had been borrowed from the Anderson farm before Fred Anderson died, claiming that the machine did not belong to her.
Earl Hoyt testified that Mrs. Anderson did not have the mental capacity to make a will. He testified that he had interviewed her with reference to increasing the insurance on her buildings and she stated that the amount carried was sufficient.
Floyd Anderson, the contestant, testified that his mother, during her lifetime, did not handle the farm business matters, and after his father’s death she referred the matters to him. He further testified that after his father’s death his mother was in a great state of grief and shock; that she stated that she had an awful pressure in her head; that on 1 occasion she became incensed because his wife had bought him an electric razor and had purchased an $800 piano; that she complained to him that she believed that her daughter-in-law was a spendthrift; that she stomped on the flowers in her daughter-in-law’s garden; that on 1 occasion she had decorated the graves of some of the farm animals previously buried; that on the death of her pet dog she had him make a casket and vault for the same; that she would constantly call him on the telephone any time of the day or night when she wanted something; that on 1 occasion she returned to the house during a minor fire, where he found her in bed with her dog, and where she thought she was perfectly safe, even though he had previously removed her from the house before calling the fife department.
[175] All such matters have been before this Court on numerous occasions in will contest cases, and each has been held to have no bearing on the mental capacity of the deceased to make a will. Spratt v. Spratt, 76 Mich 384; Prentis v. Bates, 88 Mich 567; Page v. Beach, 134 Mich 51; Hibbard v. Baker, 141 Mich 124; Blackman v. Andrews, 150 Mich 322; Leffingwell v. Bettinghouse, 151 Mich 513; In re Murray’s Estate, 219 Mich 70; In re Littlejohn’s Estate, 239 Mich 630; In re Johnson’s Estate, 308 Mich 366; In re Calhoun Estate, 346 Mich 227.
It is significant to note that the son, Floyd Anderson, contestant, was the recipient of a deed for an acre of land, upon which land his home was built in the year 1954, at which time he did not know the contents of his mother’s will, and at a time when it was not convenient for him to allege her incompetency to make a deed.
The Court has said on several occasions that where a testator goes to an attorney and directs the drafting of a will disposing of his property in a fashion that indicates that he knows the property of which he is possessed and the objects of his bounty, and has sufficient reason for disposing of the property in the fashion he does under the will, such a testator has a mental capacity to make a will. In In re Little-john’s Estate, 239 Mich 630, 634, this Court quoted with approval from In re Ver Vaecke’s Estate, 223 Mich 419, 425, as follows :
“ ‘When a man goes to an attorney, and, without aid or suggestion, directs the provisions of his will, and furnishes specific descriptions of all the property he owns, it is a waste of time to discuss the question as to whether he was mentally competent to dispose of his property as he did.’ ”
In the instant case the record discloses that testatrix knew that her son and daughter-in-law would not [176] be able to have any children; that she had a concern about what would happen to the property acquired by testatrix and her husband in the event subsequent to her death and that of her son Floyd the property descended to her daughter-in-law. She therefore went to a practicing attorney, and without anyone present she directed that the personal property should be left to her son outright and that he would have the use of the farm during his lifetime; that on her son’s death it would not go to the daughter-in-law and her family, but that it would go to a grandniece of testatrix or to the 2 children of the grandniece in the event the grandniece did not survive Floyd. This will speaks eloquently of the fact that she could and did provide for the object of her bounty, her son Floyd. It also indicates that she had knowledge of her property, and that considerable thought had been given to the disposition of it. Her directions to her attorney to draft a will along these lines indicate that she had the mental capacity to make a will. The fact that she waited from about the 11th of July to the 15th of August indicates that it was not something that was done on the spur of the moment and without reflection.
This Court has several times held that if a testator was competent when the will was executed, it is valid, irrespective of his temporary condition before or after. In re Cottrell’s Estate, 235 Mich 627. The following cases were cited with approval therein: Pierce v. Pierce, 38 Mich 412; In re Weber’s Estate, 201 Mich 477; In re Cochrane’s Estate, 211 Mich 370.
It should be noted that this case was tried before the effective date of new section 16 of Court Rule No 37 pertaining to hypothetical questions.
Only 1 more bit of testimony requires discussion, that is the question of the submission of a hypotheti[177] cal question to Dr. Bunnell, psychiatric expert for contestant. The facts upon which the hypothetical question was based were not entirely supported by the evidence, and certainly the facts upon which the question was based had no tendency to show incompetency or incapacity of the testatrix at the time of the making of the will. In In re Marx’s Estate, 201 Mich 504, this Court said:
“In proceedings to contest a will, a hypothetical question, propounded to a physician, which assumed facts not testified to, and omitted material facts which had been testified about, was properly rejected by the court below.” (Syllabus 4.)
In Mapes v. Berkowitz, 304 Mich 278, this Court said:
“A hypothetical question may not embrace facts not supported by evidence.” (Syllabus 2.)
In In re Doty’s Estate, 212 Mich 346, this Court said:
“A hypothetical question as to testator’s insanity, at the date of making his will, largely made up of the substance of incompetent testimony, which covered a period subsequent to that date, held, objectionable, and the answer thereto incompetent.” (Syllabus 3.)
In the early case of Prentis v. Bates, 88 Mich 567, this Court said:
“A hypothetical question which, while mentioning some things which would possibly be evidence of some mental derangement, refers to facts which, standing alone or in connection with other things, have no tendency to show insanity or incompetency in a testator at any time, is incompetent.” (Syllabus 9.)
[178] The hypothetical question placed to Dr. Rennell was objectionable under all of these cases. Proponent’s objection should have been sustained.
The motion for a directed verdict at the conclusion of all proofs should have been granted. The judgment of the lower court is hereby reversed and the matter is remanded to said court, with directions to enter judgment for proponent on the reserved motion, notwithstanding the verdict, with costs to proponent.
Dethmers, C. J., and Smith, Black, Edwards, and Voelker, JJ., concurred with Kavanagh, J.