Cuthbertson's Appeal

Decision Date14 February 1881
Citation97 Pa. 163
PartiesCuthbertson's Appeal. Appeal of the Contributors to the Pennsylvania Hospital. Appeal of the Zoological Society.
CourtPennsylvania Supreme Court

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

Appeals from a decree of the Orphans' Court of Philadelphia county; Of January Term 1880, No. 228.

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Henry J.McCarthy and William A. Porter, for James Cuthbertson, Agnes Georgeson and Jeanie Cuthbertson, appellants.— There was evidence to go to a jury that testator was not at the time of the making of the alleged codicil of sound testamentary capacity: Irish v. Smith, 8 S. & R. 576; McTaggart v. Thompson, 2 Harris 154. The provisions of the codicil, and the extraordinary and unreasonable change they would appear to indicate in testator's feelings, constitute clear evidence of incapacity, and may be taken into account: Leech v. Leech, 5 Clark 86; Hauberger v. Root, 6 W. & S. 431; Bitner v. Bitner, 15 P. F. Smith 347; Clark v. Fisher, 1 Paige's Ch. 175. Even if Neill's condition did not amount to absolute incapacity to make a will, it is nevertheless clear that his mind was so weakened that the burden of proof is on Yardley to show clearly the fact that no improper advantage was taken by him of testator's condition. Such is always the duty of those who draw wills giving large benefits to themselves, when a testator's testamentary capacity is impaired: Dean v. Negley, 5 Wright 317; Daniel v. Daniel, 3 Id. 209; Newhouse v. Godwin, 17 Barb. 236; Beall v. Mann, 5 Ga. 470; Krepps v. Krepps, 4 Brewster 38; Duffield v. Robeson, 2 Harrington 384; Tomkins v. Tomkins, 1 Bail. 92; Clark v. Fisher, 1 Paige Ch. 175; Ingram v. Wyatt, 1 Hagg. 384; Greville v. Tylee, 24 Eng. L. & Eq. 53; Durling v. Loveland, 2 Curteis 225; Baker v. Batt, 2 Moore's P. C. C. 317; Segrave v. Kirwan, 1 Beatty, Jr. Ch. 157. The case is directly ruled by Boyd v. Boyd, 16 P. F. Smith 283. An issue should have been awarded.

A. Sydney Biddle and George W. Biddle, for the Contributors to the Pennsylvania Hospital, appellants.—The testimony as to Neill's mental incapacity was very strong. He was not able to dispose of his property with clear understanding and memory: Marquis of Winchester's Case, 6 Rep. 23 a; Mountain v. Bennett, 1 Cox 353; Greenwood v. Greenwood, 3 Curteis Appendix; Marsh v. Tyrrel, 2 Hagg. 122; Harwood v. Baker, 3 Moore P. C. 282; Harrison v. Rowan, 3 Wash. C. C. 580; Den v. Johnson, 2 South. 454; Boyd v. Eby, 8 Watts 66; Converse v. Converse, 21 Vt. 168; Clark v. Fisher, 1 Paige Ch. 171.

The law will most scrupulously scrutinize any will drawn up by a confidential adviser whereby a large benefit is conferred upon himself. More particularly will they do this where there is any indication of testator's mental incapacity: White & Tudor's L. C. Eq. 1192, 1216, 1226, 1268, 1282, 1284, &c., and cases cited. In such case the onus is cast upon the adviser to prove the bona fides of the transaction: Boyd v. Boyd, 16 P. F. Smith 283. Nor is this case overruled by Frew v. Clarke, 30 P. F. Smith 170. In this latter case the testator's mental incapacity was not shown, and besides the case was decided by a divided court.

[SHARSWOOD, C. J. — The question on which the court differed in opinion was the competency of the witness Clarke. Judge PAXSON and I dissented on the ground that the paper was not a will, but a contract inter vivos, and in that view Clarke could not have been a witness under the Act of 1869, because the other party to the contract was dead.]

Yardley should be called upon to show the fairness of the whole transaction to the satisfaction of a jury. If he fails to do this, the whole codicil should be set aside, it being impossible to distinguish what parts of it were and were not produced by undue influence: Hughton v. Hughton, 15 Beav. 278; Cooke v. Lamotte, Id. 234; Florey v. Florey, 24 Ala. 241; Irwin v. Keen, 3 Whart. 347; Davis v. Calvert, 5 Gill & J. 269; Tyler v. Gardiner, 35 N. Y. 559.

W. W. Montgomery and Samuel Wagner, for the Zoological Society of Philadelphia, appellant, presented no paper book nor argument, but submitted the case to the court on the paper books furnished in the other appeals.

Robert N. Willson for the appellees.—Mere impairment or weakness of mind is insufficient to invalidate a will. To effect this the mind of the alleged testator must have been so far impaired as that from defect either of memory, judgment, or discernment, he did not really know and intend what he was doing when he executed the testamentary paper, or it must stand good: McMasters v. Blair, 5 Casey 298; Thompson v. Kyner, 15 P. F. Smith 368; Tawney v. Long, 26 Id. 106; Cauffman v. Long, 1 Norris 72. It cannot be pretended that there was evidence that Neill's mind was affected to this extent, even if there was a conflict of testimony on this point; it is equally well settled in this state that an issue will not be granted, when upon consideration of the whole case, the court is of the opinion that a verdict against the will ought not to be sustained: Graham's Appeal, 11 P. F. Smith, 43; Cozzens's Will, Id. 196; De Haven's Appeal, 25 Id. 337; Wainwright's Appeal, 8 Norris 220. Nor was there sufficient evidence of undue influence to go to a jury. Mere persuasion or solicitation does not amount to such influence: Miller v. Miller, 3 S. & R. 267; Tawney v. Long, 26 P. F. Smith 106. It does not exist unless the mind of the testator is subjugated by some kind of coercion which subverts his independence, destroys his free agency, and substitutes the will of another for his own, at the very time when the act of disposition takes place: McMahon v. Ryan, 8 Harris 329; Eckert v. Flowry, 7 Wright 46; Thompson v. Kyner, 15 P. F. Smith 368. Boyd v. Boyd, 16 P. F. Smith 283 is not applicable here. There a weak mind, illiteracy, extreme physical debility, and a lack of acquaintance with business transactions, were all shown to co-exist in the testator. Here the case is not near so strong as regards the testator's physical and mental condition. The case is ruled by Frew v. Clarke, 30 P. F. Smith 170.

Chief Justice SHARSWOOD delivered the opinion of the court, February 14th 1881.

Boyd v. Boyd, 16 P. F. Smith 283, established a general principle of the highest importance for the protection of persons who call in professional or other advisers to assist them in making their last wills. That principle may be briefly stated thus: Where the alleged testator is shown by evidence to be weak in mind, whether arising from age, bodily infirmity, great sorrow, or other cause tending to produce such weakness, though not sufficient to create testamentary incapacity, and the person whose advice has been sought and taken receives a large benefit under the instrument propounded as a will, it must be shown affirmatively that the alleged testator had full understanding of the nature of the disposition contained in it. The general rule undoubtedly is that testamentary capacity and knowledge of the disposition made are presumed. Where the testamentary capacity is perfect, fraud or undue influence must be shown. In such case the undue influence must be such as to destroy the freedom of will of the party, or at least very much to impair it....

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