Wilson v. Mitchell

101 Pa. 495, 1882 Pa. LEXIS 288

• Court: Supreme Court of Pennsylvania
• Decided: December 30, 1882
• Status: Published

Opinion

Mr. Justice Trunkey

delivered the opinion of the court, December 30th 1882.

The determination of the first question presented in the issue was withdrawn from the jury by the court directing them to find that at the time of the execution of the alleged will, David Dougal was of sound mind and disposing memory. If this ruling was correct, the first four assignments of error cannot be sustained, even if the defendant’s first three points were, sound. In considering whether the question should have been submitted, some well settled principles may first be noted.

A man of sound mind and disposing memory is one who has á full and intelligent knowledge of the act he is engaged in, a full knowledge of the property he possesses, an intelligent perception and understanding of the disposition he desires to make of it, and of the persons and objects he desires shall be the recipients of his bounty. It is not necessary that he collect all these in one review. If he understands in detail all that he is about and chooses with understanding and reason between one disposition and another, it is sufficient for the making of a will: Daniel v. Daniel, 39 Pa. St. 191; Tawney v. Long, 76 Id. 106. If from any cause he is so enfeebled in mind as to be incapable of knowing the property he possesses; of appreciating the effect of any disposition made by him of it; and of understanding to whom lie intends to bequeath it, he is without the requisite testamentary capacity: Leech v. Leech, 21 Id. 67. “He must have memory. A man in whom this faculty is totally extinguished cannot be said to possess understanding to any degree whatever, or for any purpose. But his memory may be very imperfect; it may be greatly impaired by age or disease. He may not be able at all times to recollect the names, the persons or the families of those with whom he had been intimately acquainted; may at times ask idle questions, and repeat those which had before been asked and answered; and yet his understanding may be sufficiently sound for many of the ordinary transactions of life. He may not have sufficient strength of memory, and vigor of intellect, to make, and to digest all the parts of a contract, and yet be competent to direct the distribution of his property by will. This is a subject which he may possibly have often thought of and there is probably no person who has not arranged such a disposition in his mind before he committed it to writing ; more especially, in such a reduced *state of mind and memory, he may be able to recollect and to understand the disposition of his property which he had made by a former will, when the same is distinctly read over to him. The question is not so much what was the degree of memory possessed by the testator as this — Had he a disposing memory? Was he capable of recollecting the property he was about to bequeath; the manner of distributing it and the objects of his bounty? To sum up the whole in the most simple and intelligent form — Were his mind and memory sufficiently sound to enable him to know, and to understand, the business in which he was engaged at the time when he executed the will?” Stevens v. Vancleve, 4 Wash. C. C. 262; Lowe v. Williamson, 1 Green Ch. 82. Neither age, nor sickness, nor extreme distress or debility of body will affect the capacity to make a will, if sufficient intelligence remains. The failure of memory is not sufficient to create the incapacity, unless it be total, or extend to his immediate family or property. The want of recollection of names is one of the earliest symptoms of the decay of the memory; but this failure may exist to a very-great degree, and yet “ the solid power of the understanding” remain: Van Alst v. Hunter, 5 Johns. Ch. 148.

A careful examination of the facts related by the witnesses who had acquaintance with Dougal and opportunity to observe his condition about the time of the execution of the will, reveals no sufficient evidence of testamentary incapacity to warrant its finding against the convincing evidence that he had disposing mind and memory. Excepting the attesting witness to the will, one who is not an expert can only testify his opinion that the testator’s mind was unsound, after having stated facts within his own knowledge tending to show that condition; and whether he has testified to such facts as entitle his opinion to go to the jury is always a question for the court: First N. B. of Easton v. Wirebach’s Exr., 12 W. N. C. 150. In the admission of testimony the court allowed the defendants great latitude, and having heard it all, upon determining its sufficiency, properly gave no weight to opinions which were incompetent.

Dougal had lived over one hundred years before he made the will, and his physical and mental weakness and defective memory were in striking contrast, with their strength in the meridian of his life, tie was blind; not deaf, but hearing impaired; his mind acted slowly, he was forgetful of recent events, especially of names, and repeated questions in conversation; and. sometimes, when aroused from sleep or slumber, would seem bewildered. It is not singular that some of those who had known him when he was remarkable for vigor and intelligence, are of opinion that his reason was so far gone that he was incapable of making a will, although they never heard him utter an irrational expression. To remark the testimony of each witness called by the defendants would be vain, but tbe general character may be learned from one of the most intelligent — Mr. Dunlap: he knew Dougal in 1815, studied surveying with him in 1835, was an intimate friend, was very frequently with him in the line of their business, and when Dougal ceased surveying he turned his business over to the witness.. He testifies that Dougal was a strong-minded man, wrote rapidly and well, and was very tenacious of his opinions ; a tender and feeling man, always glad to meet his old acquaintances of childhood ; that in the last years of his life his mind was not so vigorous; that in 1880 his memory appeared to be right on transactions in the prime of his life, on these he conversed as well as ever ; did not talk about recent transactions, but he asked about witness’ wife ; asked the same question over several times, as if he had forgotten he had asked it before ; saw nothing like insanity about him, and never heard an irrational or insane expression by him, and observed no hallucination or delusion ; and the witness thinks that under solicitation and well-wishers, Dougal would have readily changed his mind, and doubts if he had capacity to make a will. Surely, this testimony does not show want of testamentary capacity. All true, and Dougal could understand the business in which he was engaged when he made his will, knew the property he possessed, and understood to whom he desired to give it. Other witnesses, who knew less of Dougal, had positive opinions that he lacked testamentary capacity, but the facts they stated, if not precisely the same as stated by Dunlap, come as far short of justifying such opinion.

The testimony of the experts, physicians, was upon hypothetical statements, and had the evidence warranted the finding of facts as stated in the interrogatories, the question of the testator’s capacity to make a will, ought to have been submitted to the jury. But the learned judge of the common pleas was right in holding that in no just view of the evidence could such a, case be found as the experts considered and passed upon.

The testator left the home of his kindred at an early age, and thereafter his intimate friends and associates were strangers to his blood. Until he became blind he lived alone. During the last few years of his life he M-as in the house of Mrs. Protzman, and the care she and her family gave him was satisfactory to himself. For many years Mr. Mitchell had been his attorney and friend, and in his blindness and feebleness he often requested and received visits from Mitchell more of a friendly than professional character. His estate, was not large, and it does not appear that he had made any disposition of it until a short time before his death. He conveyed one-half the farm to Mrs. Protzman in August 1878, and the other half in April 1879. He acknowledged two deeds on April 28th 1879, one to William Dougal and one to James Dougal, for the lots in Butler; and about the same time made a will. On December 31st 1880, he destroyed said will, and also, the deeds to William and James Dougal, and made a will devising the two lots in Butler to William M. Dougal, James Dougal, Catharine Protzman and Lewis Z. Mitchell, share and share alike. He appears to have been grateful for the care and kindness of those about him. Whatever may be thought of the wisdom of the devises, or of the just claims of his distant collateral relatives upon his bounty, the circumstances of this will add little force to the allegation that he had not disposing memory at the date of its execution.

We are of opinion that the court rightly withdrew the question from the jury. A case should not be submitted where the evidence is so insufficient that the court ought not to sustain the verdict: Cauffman v. Long, 82 Pa. St. 72.

The remaining assignments relate to the question, whether the will was procured by fraud, duress, imposition and undue influence. After calling attention to the fact that Mitchell had been the attorney and confidential adviser of Dougal, that he wrote the will and himself was a considerable beneficiary, the court charged, that when the alleged testator is weak in mind, arising from age or other cause, though such weakness is not sufficient to create testamentary incapacity, and the person whose advice has been sought and taken, receives a large benefit under the instrument propounded as a will, it must be shown affirmatively that the alleged testator had full understanding of the nature of the disposition contained in it. In the case of an old, infirm and mentally weak man, disposing of his estate in favor of his confidential adviser, the general rule that testamentary capacity and knowledge of the disposition made are presumed, does not apply. There should be very clear evidence of mental capacity and proof, independent of. the execution of the will, that Mr. Dougal’s mind was free and unbiased by the counsel, advice or influence of Mr. Mitchell in so executing it. The beneficiary himself is a competent witness and cannot complain that the rule is hard or unjust, which requires him to make it clearly appear that the gift to him was the free, intelligent act of the testator. Moreover, the defendants’ seventh point was affirmed, as modified or explained in the general charge. And nothing has been pointed out in the charge which diminishes the force of that proposition. That these were the fitting instructions respecting the constructive fraud from the relationship between Dougal and Mitchell, is not denied; but the defendants insist that the question of actual fraud should have been submitted, or that the jury should have been instructed to find for the defendants.

There was no evidence of any persuasion, entreaty or request by any one, for Dougal to devise or bequeath the whole or any part of his estate to Mitchell or Mrs. Protzman. The only thing pointing to such request is the testimony. of Kate Bauldauf, that Mrs. Protzman proposed to the witness to ask Dougal to will her something; but the witness did not. That was about ten years before the making of the will. Doubtless, there was the influence of affection and attachment resulting from the care and attention of Mrs. Protzman, but that by itself is a ground in support of the testamentary act in her favor. If Mitchell and Mrs. Protzman testified truly, Dougal himself directed the disposition of his property. If they and the subscribing witnesses are believed, the will was read to Dougal several times, and it is too simple to require explanation. It was executed in December, and in the next May Dougal desired that Jackman should also witness it and it was again read in the hearing of Jackman. Then he declined to have it witnessed by Jackman, although requested to do so, giving no reason at the time for his refusal; but in June he again sent for Jackman and had him subscribe as a witness. The character of Mitchell is unassailed. None of the subscribing witnesses or devisees are impeached, save by testimony off some contradictory statements. It was for the jury to determine whether Mitchell had clearly and satisfactorily proved the absence of fraud.

The presumption of fact is, undue influence by Mitchell over the testator whereby he obtained the devise to himself, and this is deemed a constructive fraud. This is what was necessary for Mitchell to rebut by proper evidence. If he satisfied the jury of the absence of such influence, there was no fraud. Hence, it was right for the court to instruct the jury upon the law applicable to the evidence, and not submit a question, of which there was no evidence. The answers to the defendants’ fourth, eighth,-ninth, tenth, eleventh and twelfth points, did not modify the instructions relative to the undue influence and fraud presumed from the relationship; but distinguished that influence and constructive fraud from actual fraud, or such undue influence as importunity that could not be resisted.

We think the defendants’fifth point was rightly refused. The evidence' fails, to show that Mitchell ever made any representation to Dougal of the value of his services, or requested compensation by a provision in his will. But Mitchell’s testimony is, that he never directly or indirectly expressed an opinion to Dougal in regard to his making a will; that about'a week before the making of this will, Dougal said he would make him one of his heirs; that was the only such intimation before the day of writing the will; that at the time the will was being written, Dougal wanted the devise to be in satisfaction of his services. Ground was not laid for the legal conclusion that the devise is void if incommensurate with the services rendered.

Judgment affirmed.