Calhoun's Estate, In re

• Decision Date: 28 June 1956
• Docket Number: No. 24,24
• Citation: 77 N.W.2d 790,346 Mich. 227
• Parties: In the Matter of the ESTATE of Anna R. CALHOUN, Deceased. Frank ROWE, Jr., and Glenn Rowe, Proponents and Appellants, v. Harry BURRELL, Roy Burrell, Dorothy Kerber, Edna King, Eva O'Sullivan, Edward Rowe, Frederick C. Rowe, Oramel L. Rowe, Ralph Rowe and Florence Simms, Contestants and Appellees.
• Court: Michigan Supreme Court

Page 790

77 N.W.2d 790

346 Mich. 227

In the Matter of the ESTATE of Anna R. CALHOUN, Deceased.

Frank ROWE, Jr., and Glenn Rowe, Proponents and Appellants, v. Harry BURRELL, Roy Burrell, Dorothy Kerber, Edna King, Eva

O'Sullivan, Edward Rowe, Frederick C. Rowe, Oramel

L. Rowe, Ralph Rowe and Florence Simms,

Contestants and Appellees.

No. 24.

Supreme Court of Michigan.

June 28, 1956.

Lawrence, Ulrich, Tripp & Barense, Ypsilanti, Nelson S. Shapero, Detroit, of counsel, for proponents and appellants.

Wilson & Keyes, Ann Arbor, for contestants and appellees.

Before the Entire Bench.

BLACK, Justice.

This will contest arrives here on appeal from the Washtenaw circuit. At time of submission the case was assigned to Mr. Justice Reid. It was reassigned to the writer May 14, 1956.

Anna R. Calhoun, a school teacher in earlier life, died at Ann Arbor in October of 1952. She was 82 years old at death. Her husband died many years ago. There were no children of the marriage. During the last year of her life she was able for the most part to 'get about' with assistance and take occasional trips for business and on one occasion pleasure purposes. Her health and vigor were definitely impaired during final years and it is said that she did not have sufficient mental capacity to comprehend and execute the instrument we now appraise for legal worth.

Mrs. Calhoun entered the Tecumseh hospital in December of 1951. Thereafter and commencing in early January of 1952 her remaining life was spent in nursing homes. She entered the Evans Marshall home at Ann Arbor March 5, 1952 and remained there until a few days prior to death. The instrument in question was executed at the Evans home shortly after Mrs. Calhoun went there.

Mrs. Calhoun was personally acquainted with attorney Robert D. Ulrich, scrivener of the instrument in question. When Mr. Ulrich was a boy his parents were nextdoor neighbors of Mr. and Mrs. Calhoun. The acquaintance, apparently on a most friendly basis, continued from 1928 until the time of Mrs. Calhoun's death. A day or so prior to March 7, 1952 Mrs. Calhoun sent for Mr. Ulrich. The message--to effect that Mrs. Calhoun wanted a will made--was conveyed to him by the proponents, both being nephews of Mrs. Calhoun.

Mr. Ulrich went alone to the Evans home March 7, 1952. The usual conference between attorney and client took place preparatory to the drafting of a will. Neither of the proponents was present. Mr. Ulrich carefully questioned Mrs. Calhoun as to the nature of her property and intended objects of bounty including the names of nearest relatives. During the conference the usual lined tablet paper of legal size as found in most law offices was utilized by Mr. Ulrich and he noted thereon the details of information furnished by Mrs. Calhoun. These notes, consisting of 2 handwritten sheets, form an important part of the facts we are to weigh and they are set forth at margin. ¹

Mr. Ulrich left the Evans home late in the afternoon of March 7 and returned with the prepared form of will on March 11. He was accompanied by a partner, attorney Lawrence, the purpose being that of supplying an additional witness. It is apparent from prepared form of the instrument that the scrivener intended a third witness should be summoned on occasion of intended execution. Such was done as presently noted.

The instrument was read to Mrs. Calhoun and it was thereupon executed according to statutory formalities. Such formalities were duly attested by the testimony of Mr. Ulrich and Mr. Lawrence. Mrs. Pinion, daughter of the proprietress of the Evans Marshall home (Velma Evans), signed the instrument as third attesting witness. We shall refer to her testimony later. The instrument was executed in duplicate by all parties. One of the duplicates was given to and retained by Mrs. Calhoun and the remaining duplicate was retained by Mr. Ulrich. The instrument if effective wills Mrs. Calhoun's entire estate to the proponent nephews, Frank Rowe, Jr. and Glenn Rowen, subject to the conditions noted by Mr. Ulrich on occasion of the March 7 visit.

Following Mrs. Calhoun's death the executed instrument was duly submitted for probate and, on filing of notice of contest by the respective contestants, one being a brother and the rest being nephews and nieces of the decedent, such contest was certified to the circuit court at provided in the probate code. The contest came to jury trial before the honorable Archie D. McDonald, circuit judge presiding, and resulted in jury verdict of disallowance. Proponents' motion for judgment notwithstanding the verdict, and their motion for new trial, were denied by the trial judge and judgment disallowing the instrument was entered.

The mentioned motions are here for test. We are asked to hold, by the appellant proponents:

1. That the trial judge should have granted their motion, for entry of judgment upholding the instrument in contest as the decedent's last will and testament, notwithstanding the jury's verdict.

2. That the trial judge should have granted a new trial on assigned ground that the jury's verdict was contrary to the clear weight of the evidence received.

3. That the trial judge reversibly erred in jury instruction.

First: No motion for directed verdict was made during the trial. We cannot for want of such motion consider the mentioned motion for judgment notwithstanding verdict. Court Rule No. 37, § 8 [1945], as amended April 1, 1953; Forman v. Prudential Ins. Co., 310 Mich. 145, 16 N.W.2d 696; Robb v. Booms, 337 Mich. 583, 60 N.W.2d 469.

Second: The next question is whether the verdict below is contrary to clear weight of the evidence disclosed in the record. Admittedly an appellate court should be slow to overrule determination of a skilled trial judge in such regard. We realize that his position of judgment behind the plate is better than our spectral view through print from distant bleachers. Perhaps we should openly concede, as did Judge Frank of the court of Appeals of the 2nd circuit in his 'Courts On Trial' (Princeton Univ.Press, 1950), page 23, that:

'The trial court alone is in a position to interpret the demeanor-clues, this 'language without words.' An upper court, to use Judge Kennison's phrase, 'has to operate in the partial vacuum of the printed record.' A 'stenographic transcript,' wrote Judge Ulman, '* * * fails to reproduce tones of voice and hesitations of speech that often make a sentence mean the reverse of what the mere words signify. The best and most accurate record [of oral testimony] is like a dehydrated peach; it has neither the substance nor the flavor of the peach before it was dried.''

For evident reasons our Court on rare occasion has held contrary to the trial judge's considered appraisal of evidence and verdict on motion for nwe trial. It is well that we have done so. Nevertheless, when the exceptional case comes here, we are left no alternative than that of exercise of stinted power. This is such a case. While we cannot and do not decide that proponents would have been entitled to an instructed verdict below had they moved for same, we are bound by constraining authority to hold that the verdict we now scrutinize rests at best on evidence of gossamer weight.

It was convincingly shown in the course of proponents' case that the instrument in contest was understandingly executed according to the previously directed wishes of Mrs. Calhoun. The information shown in Mr. Ulrich's notes of March 7 came exclusively from the old lady and the text thereof discloses due knowledge on her part of property interests and the anmes of nearest of kin including each of the named contestants. The instrument is neither complicated nor unnatural. As drafted it is consistent in every respect with the facts and intentions that were given the attorney 4 days earlier and recorded then by him. When it is considered that wills, made by persons shown to have descended farther into the realm of eccentricity than Mrs. Calhoun did, ² have been regularly upheld as a matter of law, analysis of this record to ascertain clear weight of the evidence must of necessity be guided by that which was said in the oft-quoted case of Spratt v. Spratt, 76 Mich. 384, at page 397, 43 N.W. 627, 631, viz.,

'When no question of fraud or of undue influence is involved, but the question is one solely of mental capacity, and the fact is shown that the testator wrote or dictated the will without being prompted, and the will itself is intelligible and consistent in its provisions, and disposes of all the testator's property, and there is nothing upon the face of it to indicate mental unsoundness, the testimony as to mental incapacity would have to be very strong and convincing to defeat such will. I do not mean to say that more than a preponderance would be required, but that the facts suggested make a very strong case in favor of mental capacity.'

We turn from these premises to consideration of the testimony offered by contestants, starting with that of Mary Kathleen Pinion, the third attesting witness whose experience as an attendant of aged and incompetent people extended over a period of 6 precedent years. Mrs. Pinion was as noted above daughter of and assistant to the proprietress of the Evans home. The comprehensive summary of her testimony as given by contestants' counsel in their brief is an follows:

'Based on her experience, she expressed her opinion that Mrs. Calhoun was not mentally competent on either March 5, 1952, when she was admitted to the home, or on March 11, 1952, when she executed the Will. Some of the facts which caused Mrs. Pinion to reach the conclusion that Mrs. Calhoun was mentally incompetent were as follows:

'She was extremely forgetful. She would forget things she was going to do. She would start out of the room and forget what it was she was going to do. She would forget where the bathroom was. Several mornings after she was admitted to the home on March 5, 1952...