Bailey v. Bailey

• Decision Date: 06 May 1862
• Citation: 10 Mich. 155
• Court: Michigan Supreme Court
• Parties: Temperance White and another v. Alexander C. Bailey

10 Mich. 155

Temperance White and another v. Alexander C. Bailey

Supreme Court of Michigan

May 6, 1862

Heard January 17, 1862

Error to Kent Circuit.

Alexander C. Bailey presented to the Probate Court for Kent county, for probate and allowance, an instrument purporting to be the last will and testament of Luther Mudge. On the hearing in that court, Temperance White and Mary Blood, daughters of said Mudge, appeared and opposed, and the will was disallowed. Bailey appealed to the Circuit Court, where an issue was directed by the court to be made up and submitted to a jury. The issue and the case will be found stated in the opinion of Justice Manning. On the trial, considerable evidence was given on behalf of Bailey, under objection tending to show that Mudge considered himself ill-treated by his children, and kindly treated by Bailey; that he left the house of Mrs. White and went to Bailey's to live; that White spoke of him as a dirty, filthy old dog; that in his last years he was supported as a town pauper, and White called on the public authorities for pay for keeping him while at his house, and both Mr. and Mrs. White declared they would not keep him another year. The questions arising upon evidence rejected will appear by the opinion.

Judgment affirmed.

H Chase, and J. T. Holmes, for plaintiffs in error.

Bement & Moore, for defendant in error.

Manning J. Campbell, J. Christiancy, J. Martin, Ch. J. concurred.

OPINION

Manning J.:

The relevancy of evidence depends on the issue to be tried. Some cases admit of a much wider range than others. Where the motive of a person for doing an act out of the ordinary course of events is a legitimate subject of inquiry, under the issue, all the surrounding circumstances and influences that might have contributed to or caused such motive may be inquired into.

The plaintiffs in error, Mrs. White and Mrs. Blood, are children of Mudge, the testator. His only children, it is to be presumed, as no mention is made of any others. Bailey, the defendant in error, and to whom Mudge gave all his property, was, in no way related to him. The testator left White's family, in which he had been residing, and went to live with Bailey some two, three or four months, certainly not longer than four months, before his death; and while at Bailey's, and on the 18th day of August, 1858, made his will, and died in two or three days thereafter.

By direction of the Circuit Court an issue was made in that court to determine the following facts: 1st. The domicile of Mudge at the time of his death: 2d. Whether the alleged will was his last will and testament: and, 3d. Whether he was of a sound and disposing mind at the time the same was made, and was not under the undue influence of Bailey or some other person at the time.

It was on the trial of this issue that the several exceptions to the admission or rejection of evidence we are called to pass upon were taken.

The simple fact that the testator had by his will disinherited his children, and had given his property to one not related to him by blood or marriage, is so repugnant to parental feeling, and out of the course of things, as to excite more or less suspicion in the mind that all was not right. And when in connection with this unnatural act of the testator, it appears that he was an old man, infirm in health, and had but a few months previously left the house of a daughter and gone to live with Bailey, at whose house the will was made but two or three days before his death, this suspicion is so far strengthened by these additional circumstances as to give it the semblance of reality. Altogether they would, and unexplained should, have more or less influence with the jury. The following questions or others of a like character would most likely be found suggesting themselves to the mind: Why did the testator disinherit his children? Why did he leave his daughter's house and go to live with the appellee but a short time before his death? Why did he put off the making of his will until a day or two before he died? Were these acts his--the offspring of his own free volition? Or were they the production of artifice and cunning, practiced on an old man by some one behind the curtain? And, if we are to judge of the tree by its fruit, who, as the event has shown, had a deeper interest in the fruit the tree has borne than the appellee?

Now all the questions put and answered, to which exceptions were taken, elicited facts tending to answer these suggestions, and to remove the influence the untoward circumstances we have stated would, unexplained, have had on the jury; or to prove the sound and disposing mind of the testator. The object of most of the questions was to prove the ill-treatment of the testator in his old age by his children. And although a wide range was allowed for that purpose in some of the questions put, we do not think the court erred therein. Men's minds are so differently constituted and operated on, that what will influence the action of one will frequently have no influence on another. Hence it was sufficient to warrant the question, if the thing sought to be proved might have contributed to alienate the testator's parental feelings, and to create in his mind a dislike for his children. Such a state of mind would furnish a motive for giving his property to another, and repel all suspicion of undue influence.

What we have said disposes of some fifteen exceptions; but there are others that we must notice separately.

One Doctor Blumerick, was examined as a witness for the plaintiffs in error. The doctor testified that he knew the testator, and had doctored him at Mr. Blood's, and that he saw him frequently until within two or three months before his death; that he first saw him about nine or nine and a half years before the trial, and then doctored him for inflammation of the lungs, connected with a pain in the head; that he discovered lightness in the head; that he often saw him two or three years after that and talked with him, and that he appeared silly and would not pay him; that he sometimes rode with him in a buggy, and sometimes saw him on foot as he was coming to town or was going home; that sometimes when he saw him he would ask him to pay him for his medical services, and that he would not; and that he appeared like a silly old man; that he visited him at White's about a year and a half before, and that his impression was that he was not sick, but forgetful, weak-minded, and talked nonsense, and that he had not seen him since. The witness was then asked: From what you saw, what was his (Mudge's) mental capacity?

The question, we think, was properly excluded. It asked for the doctor's opinion of the mental capacity of the testator some two or three months before he made his will. Mental capacity for what? To make a will, for that was in issue. This is a question of law, and not of medical science. It is for the jury,...