Benoist v. Murrin
| Decision Date | 31 October 1874 |
| Citation | 58 Mo. 307 |
| Parties | SANGUINET H. BENOIST, et al., Appellants, v. JAMES MURRIN, et al., Respondents. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court.
Trusten Polk, for Appellants.
I. The court erred in refusing the third instruction prayed by plaintiffs. This instruction in effect asserted several propositions of law, which are correct.
a. The first proposition is, that a sound and disposing mind and memory are necessary to testamentary capacity. This proposition, I take it, is too plain for argument or authority. It is the universal assertion of all the authors and of all the courts.
b. The second proposition of the instruction is a definition of the word ““sound,” as required in the mind of the testator, to constitute him capable of making a will. It asserts that “sound signifies whole, unbroken, unimpaired, unshattered by disease or otherwise.” This is the very definition of the word given by the court in ipsissimis verbis, in the case of Den vs. Johnson, (2 Southard, 454).
c. The third proposition of the instruction contains a definition of the word ““disposing,” as a requisite to testamentary capacity in the mind of a testator to make him competent to make a will.
1. It asserts, first, that a “disposing mind and memory is a mind and memory capable of recollecting all the testator's property and its amount, condition and situation.”
2. The third proposition asserts, secondly, that the testator's mind must be capable of estimating his property and dividing it out, and of comprehending the scope and bearing of the provisions of the will. (The Parish Will Case, 23 N. Y., 29.)
3. The third proposition asserts, thirdly, that the testator must have a mind capable “of discussing and feeling the reations, connections and obligations of family and blood.”
4. “And of recollecting all the persons who come reasonably within the range of his bounty. (Redf. Wills, 123-4, § 5.)
5. “And also all that he had previously done for any and each of them.” (Redf. Wills, 126, § 9.)
6. “And also the number, condition and circumstances of those who are the proper objects of his bounty, and also of weighing their deserts, with respect to conduct, capacity and need, remembering all and forgetting none.” (Redf. Wills, 125-6, § 9; Clark vs. Fisher, 1 Paige, 171; Hinson vs. Kersey, ubi supra; Beck's Med. Jurisp., 860; Parish Will Case, 25 N. Y., 29; McClintock vs. Curd, 32 Mo., 40; Harrison vs. Rowan, 3 Wash, C. C., 585; St. Legu Will Case, 34 Conn., 434; Gen. Stat., 1865, 528, § 9.)
II. The court below committed error in refusing the second instruction prayed by plaintiffs. That instruction asked the court to declare, that if the jury should find, that, at the time S. A. Benoist executed the instrument propounded as his will, he was possessed of false and exaggerated opinions, of which he could not divest himself, of the several matters of fact therein enumerated, and that these caused and determined the disposition of his property contained in the instrument, then the jury ought to find that said instrument was signed by him under a delusion and mistake, and that it was not his will. The proposition of law asserted in this instruction is sound.
But the court gave another instruction embodying hypothetically the very same matters of fact contained in this second instruction of plaintiff, and in it told the jury, that if these false opinions solely caused and determined the dispositions of his property contained in the instrument purporting to be the will of Benoist, then the jury ought to find that said instrument was signed by him under a delusion and mistake, and that it was not his will. The court committed an error in putting the word “solely” in the instruction.
III. The errors hereinbefore complained of, are not obviated by the instructions given by the court, on its own motion, as has been already shown, nor by any given upon the motion of the defendants.
S. Knox, for Appellants.
I. The first and second instructions given by the court were not the instructions asked by plaintiffs, but the plaintiffs' instructions modified by the court. The third instruction given on a motion of defendants, as to what constitutes testamentary capacity, is erroneous. A man may be a monomaniac, or be under a delusion which influenced the provision in the will, and still possess the testamentary capacity prescribed in this instruction. The written offer of plaintiffs filed in this case, entitled the plaintiffs to the opening and conclusion of the case. The court refused to allow the plaintiffs this right.
E. C. Casselberry, for Appellants.
I. If a will is not the act or product of the mind, it is no will. It is only the mechanical act of the hand in executing the instrument.
II. A will is the serious and deliberate act of the mind, built upon reason and judgment, after a full examination of the whole subject, and all of the facts and circumstances connected therewith. Any instrument of writing falling short of this, no matter how formally the same may be drawn and attested, is not in law a will. No matter how sound a person's mind may be, if, from misconception, mistake, oversight, forgetfulness, or other cause, the instrument is not the act or product of his mind, it is not in law his will. Many things a person of perfectly sound mind does by or through misconception, mistake, oversight, forgetfulness, or other cause, which could not, with any degree of seriousness, be considered the act or product of the mind. A person may be perfectly sane on all subjects save one, and be perfectly insane on that one subject, and no one would be aware of his partial insanity, except those who might happen to converse with him on the subject on which he is insane.
As to the effect of delusion on mental soundness for testamentary purposes, see Tayl. Med. Jur., p. 626; Redf. Wills, 71-76; 1 Jarm. Wills, 58-79; Shelf. Lunacy, 296; Patterson vs. Patterson, 6 S. & R., 56; Seaman's Friend Society vs. Koffer, 33 N. Y., 619; Harrell vs. Harrell, 1 Duvall, 203.
As to the effect of partial insanity, see Cooper's Justinian, 146; Kevil vs. Kevil, 2 Bush, 614; Harrell vs. Harrell, 1 Duvall, 203; Gamble vs. Gamble, 29 Barb., 373; Jarm. Wills, vol. 1, pp. 79, 80; 2 Stark. Ev., (5 Am. Ed.) 392; Shelf. Lunacy, 279, 280; Thompkins vs. Thompkins, 1 Baily, 92; Groves vs. Grant, 2 Green Ch., 620, 635, 636; Couch vs. Couch, 7 Ala., 519; Dean vs. Littlefield, 1 Pick., 243; Hall vs. Warren, 9 Ves., 610; Clark vs. Lear cited, 1 Pill., 119; Davis vs. Calvert, 5 Gill. & Johns., 269, 301; Beaubien vs. Cicotte, 12 Mich., 459; Redf. Wills, Ch. 10, § 55, p. 537, vol. 1, 2nd. Ed.
As to the mental capacity required, see 1 Redf. Wills, 121, 122, 125, 128; Den vs. Johnson, 2 South., 454; Boyd vs. Eby, 8 Watts., 66; Clark vs. Fisher, 1 Paige, 171; 3 Sandf., 351; 2 Conn., 498.
III. Where the will is unreasonable in its provisions, and inconsistent with the duties of the testator, with reference to his property and family, or what the Civilians denominated an inofficious testament, this of itself will impose upon those claiming under the instrument, the necessity of giving some reasonable explanation of the mental character of the will, or at least of obliquity or perversion. (Redf. Wills, vol. 1, p. 515; Clark vs. Fisher, 1 Paige, 171.)
“Anything in the character of the will which renders it contrary to natural affection, or what the civil law writers denominated an undutiful testament, as where children or others entitled to the estate in case of intestacy are wholly disinherited; or if not wholly deprived of a share, it is given in such unequal proportions as to indicate that it is done without any just cause, and wholly dependent upon caprice or over persuasion or deception, it must always excite apprehension of undue influence, at the very least.” (Redf. Wills, 1, pp. 520-1, 2nd Ed.)
Gross inequality in the disposition of the property where no reason for it is suggested, either in the will, or otherwise, may change the burden of proof and require explanation on the part of those who support the will, to induce the belief that it was the free and deliberate off, spring of a rational mind. (Redf. Wills, 1, pp. 537, 538; Beaubien vs. Cicotte, 12 Mich., 459; Nelson vs. Wyan, 21 Mo., 347; Weaver's Appeal, 63 Penn. St., 309.)
IV. The court erred in not giving the opening and conclusion to the plaintiffs. The written admissions obviated everything that the Supreme Court of Missouri objected to on the subject. The decisions of the Supreme Court have not apparently been uniform on the subject of opening and conclusion. (McClintock vs. Curd, 32 Mo., 411.) On carefully examining the case of McClintock vs. Curd, and also the case of Farrell vs. Brennan, (32 Mo., 328,) it will be seen that we come within the reasoning of these decisions, and do not fall within the general rule laid down in the other two cases in 48 Mo., 291.Thomas Gantt with Glover & Shepley, for Respondents.
I. The action of the court in giving the opening and the close of the case to the supporters of the will was proper. (Tingley vs. Cowgill, 48 Mo., 291; Cravens vs. Falconer, 28 Mo., 23.)
II. The first instruction given at the request of defendants was...
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