Barnes v. Barnes

• Decision Date: 08 January 1876
• Citation: 66 Me. 286
• Parties: HARVEY BARNES, appel't from the decree of the judge of probate, v. SARAH R. BARNES, executrix of the will of Amos Barnes. 1874.
• Court: Maine Supreme Court

66 Me. 286

HARVEY BARNES, appel't from the decree of the judge of probate,

v.

SARAH R. BARNES, executrix of the will of Amos Barnes.

1874.

Supreme Judicial Court of Maine.

January 8, 1876

ON EXCEPTIONS.

AN APPEAL from the decree of the judge of probate, approving a will of the following tenor:

" I, Amos Barnes, of Camden, in the county of Knox, and state of Maine, knowing the uncertainty of life, and being desirous of controlling the distribution of my property, do make, publish and declare the following, as my last will and testament:

First. I give and bequeath to my wife, Sarah R. Barnes, and to Fanny Thompson, daughter of Marcus Thompson, to hold undivided and jointly, all my real estate, consisting of my homestead in said Camden, containing three acres more or less, with all the buildings thereon; also a wood lot situated in said Camden, containing fifty acres more or less.

Secondly. I give and bequeath to my said wife and Fanny Thompson jointly and undivided, all my personal estate of every name description, and nature, consisting of household furniture horse, horse wagons, sleigh, sled, and all the implements of farming and husbandry; also all my goods remaining in my store, and all notes and accounts due me, to have and to hold, to them, and their heirs and assigns forever; they paying to my children hereafter named, in one year after my decease, the sums following, to wit: To my daughter, Abigail Tolman, the sum of two dollars; to my son, Amos Barnes, jr the sum of two dollars; to my daughter, Chloe Thorndike, the sum of two dollars; to my daughter, Mary Oxton, the sum of two dollars; to my daughter, Harriet Lowy, the sum of two dollars; and to my son, Harvey Barnes, the sum of two dollars; and they, the said Sarah R. Barnes and Fanny Thompson, pay all my just debts, funeral charges, and expenses of the probate of this my last will and testament.

Lastly. I do constitute and appoint my said wife, Sarah R. Barnes sole executor of this my last will and testament.

In testimony whereof, I have hereunto set my hand and seal, this 27th day of April, in the year of our Lord one thousand eight hundred and sixty.

Amos Barnes." (Seal.)

Signed and sealed by the said Amos Barnes, and by him declared to be his last will and testament, in our presence; and we each of us in his presence, and the presence of each other, and the same time subscribed our names as witnesses.

Nathaniel Meservey,

T. W. Chadbourn,

Charles A. Miller.

On due notice and hearing had before the probate court, held at Rockland, at its October term, 1868, it was " ordered by said court, that said instrument, proved as aforesaid, be approved, allowed, and recorded, as the last will and testament of said deceased."

From this decree an appeal was taken to this court, where on the hearing at nisi prius, several pleas were filed by the appellant, and joined by the appellee, the last of which was in the form following:

And for further plea the said appellant comes and says, that at the time of the signing of said instrument, and the supposed making and execution thereof, the said Amos Barnes was influenced thereto by insane delusion respecting his children, and their conduct towards him, and a groundless belief that they had done him some harm, and behaved undutifully towards him. And of this puts himself on the country.

After a long trial, the report of which is voluminous, the jury returned affirmative findings to the following questions:

I. Was the said supposed writing or will signed by said Amos Barnes, or by some person for him at his request, and in his presence, and was it subsequently subscribed in his presence by three credible attesting witnesses.

II. Was the said instrument duly executed and published by said Amos Barnes, as his will.

III. Was the said Amos Barnes of sound mind, at the time of the supposed execution of said instrument.

IV. Was the execution of said instrument the free, voluntary and unrestrained act and will of said Barnes, uncontrolled by other persons or influences.

The jury returned negative findings to the following questions:

V. Was the said Amos Barnes at the time of signing said instrument, and the supposed making and execution thereof, unduly influenced thereto by Sarah R. Barnes or any other person.

VI. Was the said Amos Barnes at the time of the signing and supposed execution of said instrument, influenced thereto by an unfounded and unreasonable prejudice against his own children and heirs-at-law.

VII. Was the said Amos Barnes at the time of the signing of said instrument, and the supposed making and execution thereof, influenced thereto by insane delusion respecting his children and their conduct towards him, and a groundless belief that they had done him some harm, and behaved undutifully towards him.

The appellant filed exceptions, among others, to the refusal of the presiding justice to give the following requested instructions:

III. That the mind of said Barnes was not sound, if he was under the influence of a delusion in respect to the character and conduct of his children, which influenced and controlled him in the disposition of his property by his will.

IV. That a delusion is a diseased state of the mind or affections, in which persons believe things to exist, which exist only, or in the degree they are conceived of, only, in their own imagination, with a persuasion so fixed and firm, that they act upon such delusion as though it were a fact.

V. That even if said Barnes at the time of the execution of said instrument had sufficient capacity, memory and sense to know and comprehend, and transact ordinary business transactions, yet in regard to his children, was subject to the delusion that they had unnecessarily and unjustly caused him to be put under guardianship, and taken the control of his property from him, when such was not the fact, and the guardianship was necessary, and if proper, and the children behaved in a dutiful or proper manner, in causing it to be imposed upon him, and the provisions of his will were affected by this delusion, he is not to be considered as of sound mind, when he signed or executed it.

And if such delusion existed as to any one of his daughters, who favored his discharge from guardianship at his request, and he acted upon it, the will is equally void as if the delusion existed as to all his children.

VI. That the burden of proof is upon the appellee, to show that said Barnes was at the time of the execution of said instrument of sound mind; and that the burden does not shift in the progress of the trial, but continues upon her to the end; and that if upon the whole evidence it is left uncertain whether said Barnes was of sound mind, and free from delusion affecting the provisions of his will, the instrument is not to be considered his will.

IX. That if the jury consider the provisions of the will to be unjust and unnatural, and that there is no sufficient reason shown why he should give the whole of his property to his wife and her grand-daughter, (except the nominal sums mentioned in the will,) to the exclusion of his own children, and especially his daughter, Mary, they are at liberty to infer from these facts, that the said Barnes labored under some unsoundness of mind, or was under some undue influence in making his will.

X. That if the jury are satisfied that the mind of said Barnes, at the time of the execution of said instrument, was in a weak and enfeebled condition, and the provisions of said instrument were induced partially by the weakness of his mind, partially by the improper influence of his wife, and partially by a groundless prejudice against his children, and that these combined influences induced him to make the instrument as he did, it cannot be considered his will.

Other exceptions, with a statement of the case, appear in the opinion.

A. P. Gould & J. E. Moore, for the appellant, contended, 1. That there was no sufficient proof of the due execution of the will. 2. That the presiding justice mistook the law in respect to the burden of proof on the subject of mental unsoundness. 3. That the ninth requested instruction should have been given. 4. That legal testimony was rejected, and illegal testimony admitted. 5. Expert testimony was improperly rejected. 6. Illegal testimony was admitted for the appellee. 7. There was error in the admission of portions of depositions.

On the second point, the counsel argued as follows:

The fourth reason of appeal was, that the testator was not of sound mind at the time of the execution of this instrument.

In this state the burden of proof is on the party seeking to set up a will, to prove the mental competency of the testator; and this burden continues on him throughout the trial.

It is only " a person of sound mind" who can make a will in this state. To set up a will, the supposed testator must be proved to have been such a person. R. S., c. 74, § 1. Cilley v. Cilley, 34 Me. 162. Gerrish v. Nason, 22 Me. 438.

In Crowninshield v. Crowninshield, 2 Gray 524, 534, it is said: " The burden does not shift during the progress of the trial, but continues throughout upon the appellee; and if, upon the whole evidence, it is left uncertain whether the testator was of sound mind or not, the will cannot be proved."

The particular form of mental unsoundness which existed in this case, was the delusion of the testator in respect to the character and conduct of his children; under the influence of which he disinherited them, and gave one-half his property to his second wife, and the other half to the child of one of her illegitimate children.

Delusion is insanity. If the testator acted under such delusion in respect to his children, his mind was not " sound," in the sense...