Bitner v. Bitner
| Decision Date | 19 May 1870 |
| Citation | 65 Pa. 347 |
| Parties | Bitner <I>versus</I> Bitner. |
| Court | Pennsylvania Supreme Court |
Before THOMPSON, C. J., AGNEW and SHARSWOOD, JJ.
Error to the Court of Common Pleas of Franklin county: Of May Term 1870, No. 31.
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F. M. Kimmell (with whom were W. S. Stenger and W. McLellan, for plaintiffs in error).—The evidence rejected was proper to show the condition of the decedent's mind: 1 Greenl. Ev. sect. 445-449 J. McD. Sharpe (with whom were W. U. Brewer and G. W. Brewer), for defendants in error.—The character of a charge is not to be judged by disjointed sentences: Helfenstein v. Leonard, 14 Wright 462; Carothers v. Dunning, 3 S. & R. 379; Watts v. Cummins, 9 P. F. Smith 84. The expression by an expert of an opinion on the question of sanity, is proper: 1 Redfield on Wills 140, 141; Rambler v. Tryon, 7 S. & R. 90; Wogan v. Small, 11 Id. 141; Logan v. McGinnis, 2 Jones 31; Wilkinson v. Pearson, 11 Harris 117; Poole v. Richardson, 3 Mass. R. 330; Titlow v. Titlow, 4 P. F. Smith 216; Irish v. Smith, 8 S. & R. 573; McTaggart v. Thompson, 2 Harris 149. There will not be a reversal for harmless mistakes: Bunting v. Young, 5 W. & S. 188; Quinn v. Crowell, 4 Wharton 334; U. S. Bank v. Macalester, 9 Barr 475: Garrigues v. Harris, 5 Harris 344; Scott v. Baker, 1 Wright 330; Daniel v. Daniel, 3 Id. 191; Lothrop v. Wightman, 5 Id. 305; Hill v. Meyers, 7 Id. 175. Points need not be answered in the very words put: Coates v. Roberts, 4 Rawle 100; Geiger v. Welsh, 1 Id. 349; Utt v. Long, 6 W. & S. 174. The answers to all the points on the same subject should be taken together: McHenry v. McCall, 10 Watts 471; Hood v. Hood, 1 Casey 417; Groft v. Weakland, 10 Id. 304. The court may qualify an affirmative answer to a point: Columbia Bridge Company v. Kline, Brightly's R. 320; Woodwell v. Brown, 8 Wright 121; Leech v. Leech, 9 Harris 67. Declarations of the decedent about his will and after its execution were proper; 1 Redfield on Wills 546, 547; Waterman v. Whitney, 1 Kernan 157; Chess v. Chess, 1 Penna. R. 32; Irish v. Smith, 8 S. & R. 573. Partial insanity is a ground for avoiding a will: 1 Redfield on Wills 71-79; Shelford on Lunacy, 39-43; Ray Med. Juris. § 129, 274; Dew v. Clark, 3 Addams 79; Johnson v. Moore, 1 Little 371; Am. Seaman's Friend Society, 43 Barb. 625; Florey v. Florey, 24 Alabama 241; Jenckes v. Smithfield, 2 R. I. 255; Leech v. Leech, 9 Harris 67; Boyd v. Eby, 8 Watts 68. Evidence of insanity may be drawn from the will: Patterson v. Patterson, 6 S. & R. 55; Baker v. Lewis, 4 Rawle 357; Rees v. Stille, 2 Wright 138; Dean v. Negley, 5 Wright 316; 1 Redfield 514, 515.
The looseness with which feigned issues are so often formed is a source of frequent regret, which we had occasion to notice last year in a case from Luzerne county. This case is another instance. The only issue presented by the pleadings is whether the writing was the last will and testament of Christian Bitner. But this presented no issue of fact. It might not have been his last will for various reasons of law and fact, as want of due execution, revocation, duress, insanity, &c. Such an issue withdraws the will from the exclusive jurisdiction of the register or Register's Court, and commits it to the Common Pleas which has no jurisdiction except to try issues of fact only sent to it for a trial by jury. The register's precept in this case sent two issues of fact to be tried, to wit: the insanity of the testator and the undue influence of the three sons. The defendants should have replied these matters to the plaintiffs' declaration so as to raise the direct issues of fact sent to be tried. The Court of Common Pleas and the jury would then have had the issue directly in view.
The plaintiffs asked the court to charge that there was no evidence of undue influence on part of the three sons, and the court affirmed their point. The insanity of the testator was therefore the only question left to be decided by the jury. The unsoundness of mind which was set up to destroy the will was not total insanity, but a special form of it, which, while it left the mind of the testator capable of many acts of apparent soundness, led him to form erroneous views of the character and conduct of his sons Joseph, Henry and Jacob, resulting in an insane delusion as to them, entering into the composition of his will. In order to understand the course of the trial, and solve the errors assigned, it is necessary to notice the allegations of fact constituting what has been termed the theory of the cause. It was asserted, and proof was given to show, that Christian Bitner had been insane at two periods of his life beginning in 1838 and in 1848, and that this insanity had developed an unnatural and disturbed condition of mind which had changed his character, and affected his conduct to such an extent, as to evidence a delusion of mind in relation to the three sons named, and produce a causeless antipathy toward them.
If a mild, amiable, quiet and modest man should become insane, and afterwards, though recovered so far as to transact his own business with apparent discretion and judgment, and in many things to appear to be in his right mind, yet should evidence a total revolution in his character, and become irritable, suspicious and harsh toward his children or some of them, become exceedingly vulgar and obscene in his conversations, outraging all sense of decency in the presence of his family and of strangers, and should exhibit the most foul desires and disgusting lechery toward his own daughters and other females; it would be difficult to ascribe such a revolution of character and such conduct otherwise than to the precedent insanity which had thus developed an unnatural, morbid and unsound condition of mind. Such an unsoundness would not be inconsistent with an apparent right use of the faculties in many respects, and yet might strongly influence his conduct toward those against whom he exhibited these new traits of character. In an inquiry into an unsoundness of this kind, it is evident that the testimony ought not to be confined within a very narrow range, but that all those things which tended to show that the character of the man had changed since his attack of insanity should be received in evidence. Hence in the case of one who had been mild, amiable and modest, irritability, harshness, passion,...
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Duross' Estate, In re
...but well illustrate what the law means by 'an insane delusion which is sufficient to set aside a particular will.'--Bitner v. Bitner, 65 Pa. 347; Taylor v. Trich, 165 Pa. 586, 30 A. 1053; Thomas v. Carter, 170 Pa. 272, 33 A. 81; Power v. Overholt, 257 Pa. 254, 101 A. 733; In re Leedom's Est......
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Sommerville's Estate, In re
...272, 33 A. 81; Taylor v. Trich, 165 Pa. 586, 30 A. 1053; Shaver v. McCarthy, 110 Pa. 339, 5 A. 614; Tawney v. Long, 76 Pa. 106; Bitner v. Bitner, 65 Pa. 347; Boyd v. Eby, 8 Watts 66; See also Dovci Will, 174 Pa.Super. 266, 101 A.2d 449; Boughton v. Knight, L.R. 3 Prob. & Divorce In Duross W......
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In re Ford's Estate
...are not applicable to the instant case. They cite the following cases as being more in point upon the question presented here: Bitner v. Bitner, 65 Pa. 347; State v. Petty, 32 Nev. 384, 108 P. Ann. Cas. 1912D, 223; In re Swain's Estate, 189 Iowa 28, 174 N.W. 493. We are of opinion that thes......
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In re Lappe's Estate
...devisavit vel non is limited to the specific questions of fact set out in the register's precept: Jackson v. Tozer, 154 Pa. 223; Bitner v. Bitner, 65 Pa. 347; Hoxworth Miller, 7 Pa. 458. There is nothing res judicata in an issue devisavit vel non except what the statute makes so: Cavanaugh ......