3 N.W. 882 (Mich. 1879), Fraser v. Jennison

Citation:3 N.W. 882, 42 Mich. 206
Opinion Judge:[42 Mich. 210] COOLEY, J.
Party Name:ALEXANDER D. FRASER and others v. WILLIAM JENNISON and others.
Attorney:Levi I. [42 Mich. 209] Griffin and H.M. Duffield, for plaintiffs in error. Wm. Jennison and W.A. Moore, for defendants in error.
Case Date:November 29, 1879
Court:Supreme Court of Michigan

Page 882

3 N.W. 882 (Mich. 1879)

42 Mich. 206




Supreme Court of Michigan

November 29, 1879

A will was sought to be contested for want of mental capacity in testator. Evidence was offered that he was a man careful, prompt, and particular in the payment of debts, but that, notwithstanding this, two of those named as trustees in his will had presented large claims against the estate for services rendered him. Held, immaterial. Expressions of regret of a testator as to having made a certain bequest are not evidence of a want of mental capacity. Where one of the subscribing witnesses to a will was not called as a witness at the time the other subscribing witnesses were examined, but subsequent to evidence being introduced by the contestants, they having full opportunity to cross-examine, held, that they were presumably not prejudiced thereby. Question of undue influence in this case, and evidence in connection therewith, held, properly excluded. Ruling of the court limiting the number of experts called to testify as to the mental condition of the testator to five in number, held proper. The provisions of section 5943, Comp.Laws, prohibiting a physician from disclosing information obtained in his professional capacity, is a privilege for the protection of the patient, and may be waived by him or his representatives. Certain letters written by the testator more than a quarter of a century previous, showing the existence of friendly relations between testator and his brother, who had died 20 years before the testator, and whose descendants were not named in the will, held, properly excluded; and certain letters that were admitted held to have been immaterial and not prejudicial. Certain testimony offered to establish want of mental capacity criticised. The character and effect of expert testimony, of want of mental capacity in will cases, discussed. Mere mental disorder or weakness is not sufficient to authorize the refusal of probate of a will for want of mental capacity of the testator, when it appears that it is not of such a character as to render the testator incapable of acting rationally in the ordinary affairs of life, and has not manifested itself in the testamentary provisions made. Certain errors in receiving and rejecting testimony considered, and held not to work substantial injury to appellant, and not ground for reversal. Instructions given held sufficient, and to cover the proper requests presented.

In a will case in which the testator's sanity is in issue, an omnibus question to an expert, presenting a hypothesis covering many things of which there was neither proof nor offer of proof, including conditions which necessarily indicated insanity as well as facts which might coexist with a state of mental soundness and going not only into the history, eccentricities, and physical condition of the testator, but into the personal traits of his relations, is properly excluded as tending to make the jury suppose that each of the enumerated circumstances indicated insanity, and to leave them at discretion to decide whether the will was suitable and proper and satisfied their judgment.

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Levi I. [42 Mich. 209] Griffin and H.M. Duffield, for plaintiffs in error.

Wm. Jennison and W.A. Moore, for defendants in error.

[42 Mich. 210] COOLEY, J.

This case involves the validity of the will of the late Alexander D. Fraser, of Detroit, one of the oldest and best known members of the Michigan bar. The will bears date May 17, 1877. It was proved and allowed in the probate court for the county of Wayne, and an appeal was taken from that allowance to the circuit court. A copy of the will is given in the margin. [*] [42 Mich. 211] The decedent was upwards of eighty-three years of age at the time the will was made. The proponents of the will are special administrators on the estate, appointed by the Wayne probate court, and the contestants are children of Peter Fraser, a brother of the deceased, who, with others, constitute his heirs at law. By their pleading the contestants set up the following defences:

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First, they deny the due execution of the supposed will; second, they aver that, at the time of the supposed execution, the decedent was of unsound mind, and incapable of making a valid will; third, they allege that the will was the result of insane delusions in the decedent; fourth, they aver that the execution of the alleged will was procured by undue influence, but without specifying by whom the undue influence was exerted.

On the trial in the circuit court the contestants at first all appeared by the same counsel, and, when the jury were called, challenged peremptorily two whose names were drawn. Another counsel having then appeared to take charge of the case for two of the contestants, he claimed a right on their behalf to further peremptory challenges, but this was denied, and an exception taken. The ruling was within the decision in Stroh v. Hinchman, 37 Mich. 490, and requires no discussion.

[42 Mich. 212] The proponents began their evidence by calling all of the five subscribing witnesses except John Pettie, each of whom gave evidence tending to show the due execution of the will, and the sanity of the deceased at the time of execution. On

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the cross-examination of Mr. Bishop, he testified that Mr. Fraser, about 1856, lost the sight of one of his eyes by paralysis, as he understood it. The contestants thereupon proposed to question the witness further with reference to this loss of eyesight, but the court excluded the proposed evidence.

When Mr. Jennison was cross-examined he was asked: "Did you prove a claim against the estate of A.D. Fraser, and if so, how much?" This question was objected to, and ruled out. The contestants then offered to give evidence that the will was drawn by Mr. Jennison, who was one of the trustees named in it; that during its execution Mr. Jennison and Mr. Pettie, another trustee, [42 Mich. 213] were continuously present; that Mr. Fraser was then upwards of eighty-three years of age; that previous to that he had been a man prompt and particular in the payment of his debts; that upon his death Mr. Jennison and Mr. Pettie, two of the trustees, presented claims respectively for $4,650 and $2,500, the first for services in attending to Mr. Fraser's business, and the second for services as his nurse. This evidence was objected to and ruled out, as was other evidence of a similar nature.

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The witness was then asked whether Mr. Fraser did not afterwards express regret at having made the bequest to Mrs. Seymour; but this question also was overruled. The will was then offered in evidence by the proponents, but its reception was objected to, because Mr. Pettie, the fifth subscribing witness had not been examined respecting its execution, the proponents declining to examine him at that time. The objection was overruled.

[42 Mich. 214] Counsel for contestants then opened their case to the jury, in the course of which he offered to read a passage from Griesenger on Mental Diseases, to the effect that grief, loss of fortune and disappointed ambition are among the causes of insanity; but the court very properly refused to permit it. At the close of the opening address, no part of which is giveu in the record, the judge said to counsel for contestants: "I will say to you, in view of your opening, that you need not spend any time on the question of undue influence. Your opening does not disclose that undue influence can be shown, or any undue influence, such as could go to the jury. So you must confine yourself to the capacity of the testator." Counsel for the contestants excepted to this, but they did not then or at any subsequent time say to the court that they desired to go into evidence to establish the allegation in their pleading that undue influence had been employed, nor was any suggestion made that anything had been omitted in the opening.

Counsel for contestants than called Dr. Brodie, who testified that he had seen the sore on the nose of Mr. Fraser, which afflicted him more than twenty years ago; but, on objection, the evidence on this subject was ruled out.

Mary Calvin, one of the contestants, was then called, and testified that she was niece to the decedent, and daughter to his brother Peter; that she knew by repute that her father and the decedent came to Michigan together, and that they were the only two brothers of the family that did come to Michigan. The proponents objected to this evidence as being mere hearsay, and the court ruled it out.

Contestants then offered to prove that the relations between the decedent and Peter Fraser were always friendly and affectionate, and that the testator was in the habit of visiting his brother at his residence in Berrien in his life-time; but the offer, on objection, was overruled. They also asked Mary Calvin, "What relatives[42 Mich. 215] have you living besides your brothers and sisters?" Whereupon proponent's counsel inquired

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whether the purpose was to show undue influence; and contestant's counsel making no response, the court overruled the question.

Contestants also offered to prove by this witness that Peter Fraser, in his life-time, upon the least chill or the slightest attack of illness, was subject to delirious fits; but the evidence was not received. The witness testified that Peter Fraser had been dead twenty years; that she never saw decedent, and never saw or heard from the Misses Davidson mentioned in the will.

Letters by the decedent to Peter Fraser, dated in 1845 and 1851, were offered to prove the friendly relations existing between them, but they were ruled out.

The contestants then called a witness and offered to prove...

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