O'Connor v. Madison

• Decision Date: 22 December 1893
• Citation: 98 Mich. 183,57 N.W. 105
• Parties: O'CONNOR et al. v. MADISON et al.
• Court: Michigan Supreme Court

57 N.W. 105

98 Mich. 183

O'CONNOR et al. v. MADISON et al.

Supreme Court of Michigan

December 22, 1893

Error to circuit court, Wayne county; Cornelius J. Reilly, Judge.

Proceedings by Catherine O'Connor and others, proponents, to probate the will of John O'Connor, deceased. The will was contested by Mary Madison and others. From a judgment for proponents on appeal by contestants to the circuit court from a judgment admitting the will to probate, contestants again appeal. Affirmed.

James H. Pound, for appellants.

Clarence A. Lightner, for appellees.

HOOKER C.J.

The will of John O'Connor being admitted to probate, the contestants appealed to the circuit court, where, by direction of the court, the jury rendered a verdict in favor of the proponents, and contestants again appealed.

The will is attacked upon the grounds of (1) mental incapacity of the testator; (2) undue influence. The testator was an unmarried man of nearly 80 years of age, who had resided at Detroit for many years, and, for some 9 years previous to his death, had lived with Mrs. Elizabeth O'Connor and her daughter Catherine. Etta Van Buren, another daughter of Elizabeth O'Connor, lived upon adjoining premises. Elizabeth was the widow, and Catherine and Etta were daughters, of Thomas O'Connor, a deceased brother of the testator, who had resided in Detroit previous to his death. The will was made about six months before the testator died. Counsel for contestants assert that he died possessed of upwards of $40,000. The will gave three parcels of real estate to Etta and Catherine upon condition that they care for their mother during her life; $300 to his niece Mary (O'Connor) Madison for her care of his brother James (deceased;) bequests to three charities in Detroit aggregating $1,000; and the residue to Catherine O'Connor. The contestants are Mary (O'Connor) Madison and her two brothers, children of testator's brother Patrick, who died in Ohio about eight years previous to the death of the testator.

The third assignment alleges error, in that the court directed a verdict for proponents. This direction was right, if there was no evidence to go to the jury upon the subject of undue influence, and if competency was proved. The burden of proving the latter was upon the proponents, and a prima facie case was made out by the testimony of the witnesses to the will. To overcome it, several witnesses were sworn upon behalf of the contestants. William Shields, who met him in front of the city hall, said his eyesight seemed poor, for he did not recognize him for a second or two; that he had failed considerable physically since he met him two years before; that he shuffled along when he walked, and seemed very feeble; and that his voice was weak. He joked the witness about getting married, as he had been in the habit of doing. The witness stated that he hardly thought he was able to judge of testator mentally. James Shields, Sr., testified that the testator was an old acquaintance, and that he visited the witness about a year before he died, returning home alone about 9 P. M. upon a street car; that he was physically feeble, and needed assistance to the car, though he objected to witness accompanying him; and that he tripped twice, with his knee upon the sidewalk. The witness saw him again in October or November before he died. He was upon the opposite side of the street, and appeared weaker. He also stated that "during the last year everything about him seemed to fail, and naturally his strength failed, and his opinion." He then stated that he thought him incompetent to make this will, and gave as a reason that the will was so different from what testator had previously said he intended to make it. The witness saw him last a short time before death, and was then told by testator that he (testator) was not long for this world. John Hardie, a witness about the same age as testator, crossed the street to meet him the fall before he died, but did not address him because he appeared in a passion, and he tried to get away as soon as he could, for fear people would think that they were quarreling. No further explanation of the transaction was given. Frederick Corbett, a tailor, who had left Detroit in 1885, returned in 1889. He had at one time had a land deal with the testator, and upon his return, about September, he went to see the testator for the purpose of trying to sell him some southern lands, but he did not find him in condition to do business. He does not seem to have discovered this until, after an attempt, lasting about 15 minutes, to interest the testator, the latter got angry, and pushed the papers across the table, and refused to have anything to do with the matter. He stated that testator was feeble and decrepit, and he could not make him understand about it at all. He was fidgety and deaf, and told witness that he did not want to do any more business with him at all. So, witness says that he conceived the idea that there was no use trying to do any business with him, for the reason that he was not capable of doing it. The court refused to allow this witness to testify to his opinion in relation to the testator's competency until he should relate the conversation that occurred at the time of this transaction. The testimony of this witness, especially in the light of the cross-examination, rather tends to create the belief that the testator recollected the past, and was able to look after his financial affairs with some prudence. Had he, at his age, yielded to the witness' importunities, and bought a piece of land in a remote state, there might have been more reason for doubting his competency. One other witness testifies upon this subject,-Andrew J. Scott. He says that the testator was debilitated physically, but able to get about until in the winter; that he was pretty deaf. "In talking with him I had no difficulty, except that I had to talk loud. He would answer as though he understood. Sometimes he would not answer, but he was a peculiar man that way. He failed some last year. I had an interview with him three months before he died. Old age appeared to be getting on him. He did not talk as he used to. He was a very solid talker, and had good judgment." In this interview he asked the witness about a man who lived in Ireland, in a part of the country witness never knew. The witness told him "yes," to please him. Then he asked which road he came to town on,-the old or new,-and the witness, to please him, said he came by the new line. Then he was asked his opinion as to competency, and his testimony was excluded. This was some time after the will was made.

The opinions of a witness upon the question of the competency of a testator are admissible only when it appears that the witness was sufficiently acquainted with him to be able to form an opinion; and it may be considered settled that the trial court may properly require the witness to state all of the circumstances upon which his opinion was based, before he is permitted to state his opinion, and perhaps it would not be a great stretch of discretion if he permitted cross-examination before allowing the opinion to be given. An opinion that a man is incompetent must be supported by some evidence that is inconsistent with competency. Hence, it is for the court to pass upon the competency of the witness and, unless there is something that legitimately tends to show incompetency, the opinion cannot be taken; and we cannot approve the course taken in this case, of repeatedly asking the opinion of the witness without a full showing of the circumstances within the knowledge of the witness. Eliminating such opinions as were given, there is no testimony fairly tending to show incompetency. It is shown that the testator was old, that he failed in health, that he was feeble, that his mind was not so strong as formerly, and that he was deaf; but all these things were under circumstances that raise no presumption of incompetency. A witness stated an instance of forgetfulness, but it was three months after the will was drawn. This will was not very complicated. The transaction, when it was made, shows an appreciation of his situation. The opinions of acquaintances upon the subject of competency are admissible where the witness is shown to have had the means of observation. This was fully discussed by Mr. Justice Campbell in the case of Beaubien v. Cicotte, 12 Mich. 459. It may be claimed that from that case the inference should be drawn that the opinion of an acquaintance, who saw the testator at the time of the alleged incompetency, may be given in the first instance, leaving cross-examination to test the value of such opinion. But upon page 501 it is said: "The practice permits all who have had means of observation to testify concerning the existence and measure of capacity with reference to the matter in controversy. * * * In every case the witnesses who speak from their own observation are expected to describe, as well as they can, what has led to their conclusions, as well as their means of observation; but the cases referred to show that in many instances the results of very limited observation have been permitted." Again,...