Hammond v. Dike

• Decision Date: 03 January 1890
• Citation: 44 N.W. 61,42 Minn. 273
• Parties: Mary A. Hammond and another v. Mathilde M. Dike
• Court: Minnesota Supreme Court

44 N.W. 61

42 Minn. 273

Mary A. Hammond and another v. Mathilde M. Dike

Supreme Court of Minnesota

January 3, 1890

An instrument having been admitted to probate in Rice county as a codicil to the last will of William H. Dike, the two daughters of the testator, who had contested the codicil in the probate court, appealed on questions of law and fact to the district court for the same county, where issues were framed for a jury and tried before Buckham, J. The jury found the codicil was signed and attested in due form, but that, at the date of its execution, the testator was not of sound and disposing mind and that it was not his codicil. The proponent, Mathilde M. Dike, appeals from an order refusing a new trial.

Order reversed.

H. S Gipson, for appellant.

Geo. W Batchelder, for respondents.

OPINION

Vanderburgh, J.

This controversy arises over the codicil to the last will of William H. Dike, deceased, the validity of which is contested by the respondents, on the sole ground that at the time of its execution he was not of sound disposing mind and memory. By his will, which was made in 1886, he made the following disposition of the estate then possessed by him, viz "After my wife, Matilda M. Dike, has received what is secured to her by the laws of this state, all the rest and residue of my estate, real and personal, I give and bequeath, share and share alike, to Mary A. and M. Louise Hammond, daughters of John and Maria Hammond, of Essex county, New York." The codicil makes additional provision for his wife, and it is as follows: "I give and bequeath to my wife, Matilda M. Dike, two-thirds of the judgment lately recovered by me against the state of Minnesota, on my old railroad claims, in addition to a life-estate in our homestead, and she shall have one-third of all the rest and residue of the estate, the same as the law would give it if there were no will, and the rest shall go as in my last former will directed." It is affirmed by the verdict of the jury that the codicil was formally executed; that is to say, it was signed by the testator, and duly attested in his presence. And it is beyond controversy that, up to the Sunday preceding his death, he was of sound mind, and had sufficient testamentary capacity to dispose of his estate, by will or other-wise, though he was of the age of 75 years, and was suffering from a complication of diseases which had become chronic. His fatal illness began on Sunday night, and, commencing with severe pain, speedily resulted in great bodily weakness and prostration. He executed the codicil on Monday evening, and died the next morning. He was apparently in a state of unconsciousness most of the time during his sickness, believed by some of the medical witnesses to have been coma caused by uremic poisoning, the result of kidney disease. But the evidence in behalf of the proponent tended to show that he could be aroused, and was conscious at intervals, and that he answered questions, recognized persons, including the attesting witnesses, and voluntarily gave directions in respect to his will; spoke of his own accord of the judgment which he had obtained; and, in answer to a request made of him by his wife, (the proponent,) declined to give her certain property, and declared his purpose to adhere to his previously expressed intention to give the property spoken of by her to the contestants. There is a conflict between the medical experts as to the measure of consciousness and mental capacity which he may have had, or which would be compatible with his physical condition. One of them, called by the proponent, testified that he evidently understood his condition, and would be able to decide about such things as were suggested by the counsel, and "that it was not unusual in uremic conditions for patients to arouse to a sound mental condition."

After the class of evidence we have referred to had been introduced on behalf of the proponent, and in connection therewith, as a part of her case, her counsel offered to prove that the week before the testator died he had arranged to have his will changed in the way it was changed by the codicil, and his declarations on that subject; and also that on the Saturday previous to his death he informed one Lowell that he would like to come to his office to make a change in his will involving the disposition of two-thirds or three-fourths of the...