Rivard v. Rivard

Citation66 N.W. 681,109 Mich. 98
CourtSupreme Court of Michigan
Decision Date31 March 1896
PartiesRIVARD ET AL. v. RIVARD ET AL.

Error to circuit court, Wayne county; Robert E. Frazer, Judge.

Appeal by Charles Rivard and others, heirs at law, from an order of the probate court allowing the will of Ferdinand C. Rivard deceased. There was a verdict for contestants, and judgment setting aside the will, from which Paul Rivard and Ephraim Rivard, executors and proponents, bring error. Affirmed.

A hypothetical question to a medical expert, calling for his opinion, upon the facts assumed, as to the mental capacity of a testator, is not objectionable because it includes the question of his power to comprehend "his moral obligations to others, and the objects of his bounty," where, from the context, it would be readily understood that it referred to the moral obligation of the testator to his children.

Ferdinand C. Rivard died testate in 1892, at the age of 82 years. He owned a farm of 400 acres, situated about six miles from the city of Detroit, on the road to Grosse Point. There he was born and always lived. A part of the farm he inherited. The rest he obtained by purchase. He was a shrewd, careful, economical man. He amassed considerable property, and at his death owned some real estate in the city of Detroit, and two farms in Macomb county, besides considerable personal property. His wife died in 1874. Shortly after her death he made his will dated September 12 1874. He afterwards executed 12 codicils thereto, dated respectively, as follows: (1) July 6, 1875; (2) August 28 1880; (3) September 11, 1880; (4) same date; (5) August 25, 1882; (6) May 9, 1883; (7) February 7, 1885; (8) March 16, 1886; (9) April 2, 1886; (10) May 23, 1888; (11) May 28, 1888; (12) May 26, 1890. He had seven children,-three sons and four daughters,-all of whom were living when the original will was made. By this will he made an equitable division of his property among his children. By his various codicils he took away the larger share given by the first will to five of his children, and left most of it to his two sons Paul and Ephraim. The will is attacked upon the ground of incompetency and undue influence. These questions were submitted to a jury, who decided in favor of the contestants.

His daughter Archange was married to a Mr. Connon in 1870. This marriage was unfortunate, Mr. Connon being a spendthrift and a man of bad character. She had eight children, and in 1881 she left him, and, at her father's request, took them all, and went to his house to live. His daughter Pauline in 1870 married a Mr. Lodewyck. She died May 19, 1880, leaving five children. These children went to their grandfather's to live after her death. About four months after her death, Rose married Mr. Lodewyck. Mr. Rivard naturally was opposed to the marriage in so short a time after the death of Pauline. He refused his assent, whereupon Rose and Lodewyck went away, and were married without his knowledge. Julia, at 19 years of age, left home, lived some three years with Mr. and Mrs. Lodewyck, and then entered a convent. Charles, who by the first will was made equal with Paul and Ephraim, was by one of the codicils bequeathed only a life estate.

Errors are assigned upon the refusal to give certain instructions requested by the proponents, in giving certain instructions requested by the contestants, in giving certain oral instructions, and in the exclusion and admission of testimony.

The court, at the request of proponents, after stating the statute of wills, and the power of every person to devise his property, instructed them as follows: "(1) The intention of the statute of wills is that every one of full age and sound mind shall be at liberty, in making a will, to select the object of his bounty, among his relatives, at discretion, or to pass them by, if he so disposes. (2) The court or jury cannot interfere with a testator's voluntary and intelligent bequests, or inquire into the propriety of any disposition he chooses to make, so long as the will is not unlawful in its terms, and is legally executed." To this request the court added, "and the testator is, at the time of its execution, of sound mind." "(3) And the question as to the capacity of the one who makes the will must refer to the will in question,-not his capacity to make any will in general,-and must refer to the time when the will was made. (4) If the testator intends, of his own free will, to make certain dispositions of his property; if he is capable of knowing what he is doing, of understanding to whom he gives his property by his will, and in what proportions, and what heirs he is depriving of property,-this is sufficient to sustain the will, if he, at the time of making such will, is of sufficient age and sound mind. (5) It is not necessary that Ferdinand C. Rivard should have had the most perfect and complete understanding of all matters relating to his property, and all their bearings, that a person of good and vigorous health might have had. Nor is he required to know the precise legal effect of every provision in the will." To this the court added, "provided he is at the time of sound mind." "(6) The capacity to make a contract is sufficient to make a will, and a less degree will answer for making a will than a contract. (7) The will will not be set aside merely because its maker was weak, or sometimes foolish, or lacked the average mental capacity of his neighbors, or did not dispose of his property as others, who knew nothing of his reasons, might think he ought to have done." To this the court added, "if he was of sound mind at the time he executed it." "(8) It is immaterial that by the provisions of the will any child or children or grandchildren were disinherited, or the provision that was made for them in the will was subsequently changed by the codicils. It is immaterial whether the provisions of the will are or are not such as the jurors may think ought to have been incorporated in it. This is no reason for setting aside the will, provided that the jury find that at the time of the making of it the testator was of full age, and sound mind sufficient to understand its meaning, the objects to whom these bequests were made, and the child or children he has disinherited. (9) It is not necessary that the evidence should show what, in the opinion of the jurors, may have been a sufficient reason for omitting any one or more of his heirs from the provisions of the will. The justice or injustice of such omission cannot be inquired into, providing the testator was of full age and sound mind, and acted without any undue influence, and understood fully what he was doing, when he made the will by which he omitted any one or more of his heirs from the bequests. (10) The evidence is undisputed that for thirty years before his death the testator, Ferdinand C. Rivard, carried on his business of farming, made contracts and leases, bought and sold real estate and personal property, and that no one, so far as the evidence shows, ever questioned his mental capacity or competency to do so. These facts may be taken into consideration by the jury, and given weight by them, in determining the question as to whether, when he executed the will, he was of sound mind. (11) Even if the jury believed some of the provisions of the will betray ingratitude and the want of natural affection, showing that he did not distribute his estate equally among his relatives, still those facts alone do not prove the want of testamentary capacity." This request is marked, "Given as modified;" but there is nothing to show how modified, unless it be by the oral charge of the court. "(12) If Ferdinand C. Rivard, at the time of making his will, knew the nature and effect of it,-knew his children, and the circumstances of each of them in life; the extent of his property, and the scope and bearing of the provisions of his will; how much he was giving to each, and the way he was giving it, and which of them he was passing by,-and gave the property according to his free will and wishes, and he was of sound and disposing mind and memory, and competent to make it, his will would be valid, and should stand. It was his right to make it, and not the right of the jury to make or unmake it for him. (13) A testator has the capacity that his will shows him to possess. (14) A testator competent to make a will has the right to make it as he wills and wishes, and is not required to give any reasons why he has made it in the way he has." (15) The court, at proponents' request, also instructed the jury to find, in answer to special requests, that the testator, when the will was executed, did know the extent and value of his property, and also knew his children. (16) John Ward, an attorney of long standing and experience in the city of Detroit, was the attorney for Mr. Rivard for many years; drew the will and the codicils. Contestants' counsel argued to the jury that Mr. Rivard was unduly influenced by Mr. Ward. The court, at proponents' request, instructed the jury that there was no evidence to show any undue influence on the part of Mr. Ward to bring about either the will, or any codicil to it, but did not, as requested, instruct them to disregard the arguments of counsel for the contestants on this point.

The court gave the following requests on the part of the contestants: "(1) It is essential to the validity of a will that the person should be of sound mind, and that its provisions be the real wish of the testator himself, freed from all undue influence affecting its provisions. (2) While the undue influence which operates to defeat a will must be such as to overcome the free action of the mind at the very time of making the testamentary disposition of the property it is also true that...

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  • Rivard v. Rivard
    • United States
    • Michigan Supreme Court
    • March 31, 1896
    ...109 Mich. 9866 N.W. 681RIVARD ET AL.v.RIVARD ET AL.Supreme Court of Michigan.March 31, Error to circuit court, Wayne county; Robert E. Frazer, Judge. Appeal by Charles Rivard and others, heirs at law, from an order of the probate court allowing the will of Ferdinand C. Rivard, deceased. The......

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