McGinnis v. Kempsey

• Decision Date: 07 July 1870
• Court: Michigan Supreme Court
• Parties: Mary Kempsey v. Nancy McGinniss et al

21 Mich. 123

Mary Kempsey v. Nancy McGinniss et al

Supreme Court of Michigan

July 7, 1870

Heard May 10, 1870 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Kalamazoo circuit.

This case was brought into the circuit court for the county of Kalamazoo, by the appeal of Mary Kempsey from the judgment of the probate court of that county, allowing the will of Thomas Patterson. The issue formed in the circuit court was tried by a jury, who rendered a verdict for the proponents. The questions for review in this court arise upon the rulings of the circuit judge on the admission and rejection of evidence as to the testamentary capacity of the testator.

Dr. William Mottram was called by the appellant and contestant, and after testifying to facts within his personal observation, as to the condition of the testator, stated that he heard Dr. Abbott testify, and recollected the description he gave of Patterson, and that he heard Eckard testify, except a part of the cross-examination. He was then asked:

Question. Assuming the testimony of the witness as true in reference to the condition of Patterson during the days they mentioned, what, in your opinion, was his capacity to make a will, or as to his being of sound and disposing mind?

This question was objected to by the appellees as incompetent and irrelevant. The court sustained the objection. To which ruling and decision the counsel for appellant duly excepted.

Question. Assuming the testimony of Eckard in regard to the condition of Patterson during the latter part of Thursday and Thursday night, and Friday and Friday night, including his conversation and what he did, to be true; and assuming the testimony of Dr. Abbott in regard to his condition and symptoms from Friday morning to the time you went there, to be true, including your own observation on Saturday, what is your opinion as to Patterson being of sound disposing mind and memory on Friday morning, so as to be able to transact business continuously and understandingly from nine till eleven o'clock?

This question was objected to by the counsel for appellees on the ground of irrelevancy and incompetency, and it was argued that the answer to the question would take the question at issue from the jury, and that an expert cannot be allowed to give an opinion upon facts that were not under his own observation. The court sustained the objection. To which ruling the counsel for the appellant duly excepted.

Question. Assuming that the deceased, Thomas Patterson, was a man sixty-three years of age, of thin chest, and weak physical frame, and stooping; that he was attacked the 12th of December, 1865, with pleuro-pneumonia; that on the afternoon of Thursday, the 14th of December, he was in great pain and suffering, breath short, and through that night the pain and suffering and short breathing continued, with much thirst, with his mind wandering and flighty, running from one subject to another, his face pale and yellowish, purple under his eyes, that he was sleepless, and yet in a drowsy condition throughout the night, muttering and talking to himself, insisting that his horses were sick, when in truth, they were not sick; that on Friday morning he suffered and complained of pain, short breath, and much thirst, taking no notice of a person whom he himself had called in; that he was on the same morning, at about nine o'clock, found by a physician who had examined him, a very sick man, in great pain, short breathing, not much expectoration, only about a gill during the day, and that of a brownish color; skin neither hot nor cold; that his condition remained so during that day; that on Saturday morning he was worse; that on examination of him by you on Saturday afternoon, his lungs were found in the second stage of that disease, with little or no expectoration then, and no pain, but complaining of having suffered great pain, breath short, voice bronchial, and lying in a state of stupor, except when aroused by a question put to him, and then immediately subsiding into stupor again, with skin cool, feet and hands cool, ankles and wrists clammy, and face and extremities somewhat livid, and that he died about 11 o'clock that night, "*" what is your opinion as to Patterson being of sound disposing mind and memory on Friday morning, so as to be able to transact business from nine to eleven o'clock?

This question was objected to by the appellees on the following grounds: 1st. The question assumes facts of which there is no proof. 2d. It asks the opinion of the witness upon the principal question to be found by the jury--that is, the soundness of the mind of the testator. The objection was sustained by the court upon the second ground. To which ruling the appellant duly excepted.

Question. The same hypothetical question to the "*" with the following addition: "What was the effect of that disease upon the physical and mental faculties of the said Patterson on the morning and during the forenoon of Friday, the 15th, the day before his death," was put to the witness, and answered by him.

Dr. Foster Pratt was sworn for appellant, and testified that he had heard nearly all the testimony given by Eckard, Drs. Mottram and Abbott. The same hypothetical question that was put to the witness Dr. Mottram, and answered by him, was put to this witness and answered.

Question. The same hypothetical question to the "*" with the following addition: "In your opinion, was Patterson, on the morning of the 15th, the day before his death, and during the forenoon of that day, capable of planning and executing such a paper as is here offered as his will," was then put to the witness. This question was objected to by the appellees on the ground that it calls for the opinion of the witness on a fact to be found by the jury. Objection sustained by the court. To which ruling the appellant duly excepted.

Question. The same hypothetical question to the "*" with the following addition: "In your opinion, was Patterson, at and during the time above noted, in a physical and mental condition to transact any business requiring an exercise of the judgment, the reasoning faculties, and a consecutive continuation of thought," was then put to the witness. This question was objected to by the appellees on the same ground as the last. The court sustained the objection, and the appellant duly excepted.

Question. The same hypothetical question to the "*" with the following addition: "In your opinion, was Patterson, at and during the time above noted, in a physical and mental condition to make a will," was then put to the witness. This question was objected to by the appellees on the same grounds as the two last. The court sustained the objection, and the appellant duly excepted. Other witnesses were sworn for appellant, and testified as to the effect of the disease upon the mental and physical condition of Patterson on the forenoon of Friday, the 15th, the day before he died, and appellant rested.

The appellees then recalled Dr. Jonathan G. Abbott. The appellant objected to the re-examination of this witness on the ground, that while the witness was upon the stand he was fully examined upon all material questions touching the execution of the will. The court overruled the objection, and the appellant duly excepted.

The contestant removes the cause to this court by writ of error.

Judgment of the circuit court reversed with costs, and a new trial awarded.

Geo. V. N. Lothrop, for plaintiff in error:

Few subjects have received more frequent consideration by the courts of this country and England that the mental capacity of persons to do an act brought in question, or their legal responsibility for the violation of law when deprived of some portion of the intellectual strength which is presumed to exist in every one who has once arrived at an accountable age.

Sanity terminates in insanity, and capacity fades into incapacity, by degrees so insensible that it is often difficult to find the line which divides them. So indistinct is the boundary between them that even the daily observation of ordinary men fails to detect the passage of the mind from one to the other, and courts of law, when called upon to determine the question, have not unfrequently been compelled to seek the aid of scientific investigation, and invoke the skill of experts. While it is too late to doubt the admissibility of this species of evidence in these cases, the conflict of authorities at once renders apparent the extreme difficulty which attends its introduction.

This difficulty lies not so much in defining the limits of expert testimony as in fixing upon some general form of the question to be propounded to the witness, which, while it gives him entire freedom within the recognized boundaries, shall yet unfailingly prevent him from traveling beyond them.

A full review of the decisions relative to the admission of the opinions of experts who are to rely solely upon the testimony of other witnesses, will discover the two following rules:

1st. The question must be so framed that the witness shall not be called upon to decide upon the truth or falsity, in fact, of the assumed basis. 2d. It must be in such form that the jury while giving due weight to the opinion expressed, shall yet be at, and feel, complete liberty to pass upon the existence or non-existence of the facts presented as the foundation of such opinion. In order to insure the full operation of these two rules, there is an evident tendency to establish a third, or rather a single rule, which shall take the place of the two former, viz.: That the question...