Pierce v. Pierce

• Decision Date: 02 April 1878
• Citation: 38 Mich. 412
• Court: Michigan Supreme Court
• Parties: Emeline E. Pierce et al. v. Loren Pierce et al

38 Mich. 412

Emeline E. Pierce et al. v. Loren Pierce et al

Supreme Court of Michigan

April 2, 1878

Submitted January 16, 1878

Error to Kalamazoo.

On appeal from the probate of the will of Isaac Pierce, the will was held invalid. Proponents bring error.

Judgment reversed with costs and a new trial granted.

Arthur Brown and H. F. Severens for plaintiffs in error. Undue influence, to be ground for setting aside a will, must be shown to have been exercised in every act of its execution McMahon v. Ryan, 20 Penn. St., 329; Eckert v Flowry, 43 Penn. St., 46; Shailer v. Bumstead, 99 Mass. 121; Elliott's Will, 2 J. J. Marsh., 340; Jackman's Will, 26 Wis. 104; Redf. on Wills, 740; Rutherford v. Morris, 77 Ill. 413; Tawney v. Long, 76 Penn. St., 106; Rudy v. Ulrich, 69 Penn. St., 177; affectionate influence is never undue, Gardiner v. Gardiner, 34 N. Y., 155; intoxication does not deprive one of the power of making a will unless he is so drunk as not to know what he is about, Peck v. Cary, 27 N. Y., 11; Redf. on Wills, 326; Duffield v. Morris' Ex'r, 2 Harr. (Del.), 375.

May, Buck & Powers and Edwards & Sherwood for defendants in error. Proof that husband and wife had lived together in adultery is admissible to show that the wife had strong influence over the husband, Dean v. Negley, 41 Penn. St., 312; Wallace v. Harris, 32 Mich. 394: Kessinger v. Kessinger, 37 Ind. 341; it is proper for a jury to consider the justice of a will in determining whether it was in fact the testator's, Clark v. Fisher, 1 Paige 171; Fountain v. Brown, 38 Ala. 72; 1 Redf. on Wills, 515, 521, 527; a testator's declarations made before the execution of his will and showing that he was subject to undue influence, tend to show undue influence in making the will, Beaubien v. Cicotte, 12 Mich. 486; Harring v. Allen, 25 Mich. 505; a will made under undue influence cannot be made valid by subsequent recognition, Lamb v. Girtman, 26 Ga. 625; any pressure so exerted on the hopes or fears as to overpower volition without convincing the judgment, invalidates a will, Hall v. Hall, 37 L. J., 40. Where a will is contested on the ground of incapacity through intoxication, evidence is admissible tending to show for whom the testator had intended his property, Denison's Appeal, 29 Conn. 399; Converse v. Wales, 4 Allen 512; Waterman v. Whitney, 1 Kern. 157; Rambler v. Tryon, 7 S. & R., 90; Doe v. Hardy, 1 Moo. & Ry., 525; 1 Redf. on Wills, 542.

OPINION

Campbell, C. J.

The will of Isaac Pierce was admitted to probate December 2d, 1873. It was executed July 29, 1871, and he died July 12, 1873. On appeal by certain of his heirs at law, the will was held invalid. Error is brought against that judgment. The will gave a large portion of the property to his second wife and to her children, who were under age. His children by a former wife, from whom he was divorced, were much older. Two of his sons he made no provision for, saying they had been provided for before. To three others of his older children he devised land, and to a married daughter he made a money bequest. He married his second wife, the plaintiff in error Emeline E. Pierce, in 1855, sixteen years before the date of the will, and eighteen years before his death.

The alleged objections to the will were incapacity generally, and from intoxication and undue influence. There was no evidence of general incapacity, the proof being uncontradicted that he was in his right mind. The only questions worthy of consideration arise out of the admission or exclusion of testimony, and rulings upon the other points, and certain complaints of the action of the court.

Before going into the general merits it may be proper to refer to two classes of objections to the rulings and course on the trial. It is claimed that certain rulings of the court were based on an omission of the counsel for plaintiffs in error to frame questions on the suggestion of the judge. It is not desirable that we who were not present at the trial should undertake to pass upon the merits of the occasions which led to some apparent loss of equanimity. But as matter of law, we are of opinion that rulings upon the admission or rejection of testimony must be based entirely on the legal quality of the testimony offered. There is also in several instances what appears to be inconsistency in rulings as to the proper scope of cross-examination. The view which we take of the main questions in the cause renders most of these unimportant. As our own previous decisions have laid down with some fullness the rules applicable to cross-examination, we need not attempt to go over that ground now.

There is also an exception taken to the action of the court concerning the verdict, which is of practical importance. It appears from the facts set out by the judge that the jury retired to their room on Tuesday afternoon. On Wednesday afternoon the officer in charge was requested to inform the judge that they could not agree. Thereupon the judge directed the officer to tell them "The judge does not believe it yet, and you might say to them that it is essential they agree to-night, as I am going away, and won't be back until day after to-morrow, and they might not get discharged until I come back, as Judge Coolidge is going to be here." The verdict was returned within an hour thereafter. The judge states that at the time one juror, who is named, was the only one holding out, and that he had partly consented, and from his character it was not to be presumed he was influenced by the message.

Inasmuch as it is a very plain violation of public policy to allow any testimony concerning the individual views of jurymen on a case, the question of the propriety of the judge's action cannot be made dependent on any such testimony. If it were, it is enough to say that the juror himself made no statement on the subject, and the oath of three jurors that in their opinion the verdict was not influenced by the message, would be of no account as evidence of that result.

We cannot but think the tendency of the message was to drive the jury into action which might not have been taken otherwise. There is no legal or moral presumption that before a jury has agreed will justify any speculation on the probable result. The one may be right as well as the eleven, and if right, may be able to persuade them. We certainly cannot say that there is anything in the present record which would render such a result impossible. And it is very possible at least not only that a message of the kind here given would be regarded by the outstanding juror as a somewhat strong intimation of the judge's opinion concerning the plainness of the case, and the impropriety of holding out, but also as a very harsh penalty for so doing. It needs no stretch of the imagination to infer what species of treatment a single juror might encounter beyond legitimate argument from associates who were likely to undergo an imprisonment which their agreement would not shorten.

Jury trials can never be safe unless the verdict is made as far as possible the unbiased and free conclusion of every juror. Every attempt to drive men into an agreement which they would not have reached freely, is a perversion of justice. It may be discretionary with the trial judge to keep a jury out until he is satisfied an honest and free agreement is not to be expected. But there is no legal propriety in keeping a jury confined unreasonably after they have come to an agreement, and a verdict obtained by the suggestion of such an alternative is a verdict obtained by what it would be hard to distinguish from duress. It may be that the court is not bound to be present continually on the chances of an agreement; but any unusual and prolonged delay is not to be favored without giving an opportunity to find a sealed verdict.

This error, however innocently committed, as we are bound to...