Chrisman v. Chrisman

• Decision Date: 09 March 1888
• Parties: CHRISMAN et al. v. CHRISMAN et al.
• Court: Oregon Supreme Court

18 P. 6

16 Or. 127

CHRISMAN et al. v. CHRISMAN et al.

Supreme Court of Oregon

March 9, 1888

Syllabus by the Court.

Appeal from circuit court, Lane county.

LORD C.J.

This is a proceeding brought for the purpose of having an order of the county court, admitting the will of C.E. Chrisman to probate, vacated and annulled, and to declare it void and of no effect. The will was executed on the 26th day of November 1884, and the testator died on the 21st day of June, 1885 and left surviving him a wife and seven children. On the 24th day of June, 1885, the said will was duly admitted to probate in common form; and the executors thereof, having duly qualified, entered upon the discharge of their duties in administering the estate. Subsequently and on the 11th day of November, 1885, the contestants filed their petition to the effect (1) that the said will was not properly executed, (2) that, at the time the same was executed, the testator was of unsound mind; and (3) that the will was procured by undue influence. The answer, after denying these facts, alleged affirmatively that the will was executed with the formalities required by law, that the testator was of sound mind, and that the said will was his free and voluntary act and deed. This affirmative matter being denied, and the cause thus at issue, it was referred by the court to a referee to report the testimony. After taking the testimony, the referee filed his report, and the county court proceeded to try the issue and on the 4th day of October, 1886, adjudged and decreed that the order made on the 24th day of June, 1885, admitting said will to probate, be vacated, and that the will be declared null and void. Upon appeal to the circuit court, the decree entered therein was reversed, and the said will admitted to probate as the last will and testament of the said decedent, and from this decree of the circuit court the present appeal is taken.

The record of this case is voluminous, and the work of reviewing and digesting the mass of testimony it contains, has been difficult and onerous. Much of this, no doubt, could have been avoided by restricting the latitude of examination, and confining the testimony of the numerous witnesses to the matter in issue. Although by the pleadings, as already outlined, there are three distinct questions suggested for determination, an examination of the record has disclosed and in fact the argument here has confirmed, that the contest is waged mainly about only one question, namely, whether the testator was of sound mind at the time the will was executed. Our statute of descents gives the property of a decedent to his heirs, unless divested by a will; and our statute of wills provides that no one can dispose of his property by last will who is not of sound mind. When a will is offered for probate, and the mental capacity of the testator to make it is denied and contested, there usually arises the preliminary question, upon whom rests the burden of proof? Upon this point there is much confusion and contrariety in judicial thought, nor is it free from difficulty. There is a general presumption, it is said, in favor of mental soundness, and that usually the burden of proof rests upon the party denying it, whether the question arises upon a will or contract or upon a trial for crime. This presumption is based on the idea that sanity is the normal condition of the intellect, and that insanity is exceptional and abnormal; hence the general presumption in favor of sanity or mental soundness. The contestants claim that the onus probandi is upon the proponents, not only to show that the will offered for probate was executed according to law, but that the testator was of sound mind when he executed it. As we are satisfied that the will was executed with the formalities required by law, the further consideration of that phase of the subject may be eliminated. The contention of the contestants assumes that an executor, in offering a will for probate, impliedly asserts that his testator is of sound mind, or mentally competent to execute a valid will, and that, while it concedes to him the benefit of the presumption of sanity, it does not relieve him of the burden of proving it when called into question, or thereby cast upon the opponents of the will the burden of affirmatively proving insanity. "When a will is shown to have been duly executed," said PRIM, J., "the law presumes the competency of the testator." Greenwood v. Cline, 7 Or. 26. This is nothing more than saying that, when a will is shown to have been duly executed, there arises a presumption in favor of the sanity of the testator, which, at this stage of the proceeding, unless rebutted or overcome by counter-evidence, will be sufficient to authorize the probate of the will. As Mr. Schouler on Wills says: "When the will is shown to have been properly executed and witnessed, it may be fairly presumed that the testator was competent, and unrestrained in the disposition of his property; but that these presumptions, being of fact, or mixed law and fact, may be rebutted, and the proponent has nothing more than a prima facie case in his favor." Schouler, Wills, § 174. But in Hubbard v. Hubbard, 7 Or. 44, it was said by the same judge, when the validity of the will, as here, is attacked by a direct proceeding that, "in every such proceeding, the onus probandi lies upon the party propounding the will; and he must prove every fact which is not waived, or admitted by the pleadings, necessary to authorize its probate in the county court. Whatever may be the form of the issue, as to every essential and controverted fact he holds the affirmative." In Perkins v. Perkins, 39 N.H. 171, BELL, C.J., after reviewing the authorities, said: "It is therefore proper to say that the burden of proving the sanity of the testator, and all the other requirements of the law to make a valid will, is upon the party who asserts its validity. This burden remains upon him until the close of the trial, though he need introduce no proof upon this point until something appears to the contrary." This doctrine that the burden of proving sanity, when denied and contested, rests upon the executor, or whoever sets up the particular will in controversy, was very ably asserted and maintained by THOMAS, J., in Crowninshield v. Crowninshield, 2 Gray, 524, and has been frequently approved and followed. See, also, Rigg v. Wilton, 13 Ill. 15; Cilley v. Cilley, 34 Me. 162; Robinson v. Adams, 62 Me. 369; Cramer v. Crumbaugh, 3 Md. 491; Morrison v. Smith, 3 Brad.Surr. 209; Delafield v. Parish, 25 N.Y. 32; Baldwin v. Parker, 99 Mass. 84; Comstock v. Hadlyme, 8 Conn. 254; Evans v. Arnold, 52 Ga. 169; Beaubien v. Cicotte, 8 Mich. 9; Garvin v. Williams, 44 Mo. 465; Williams v. Robinson, 42 Vt. 658; Renn v. Samos, 33 Tex. 760; Jenkins v. Tobin, 31 Ark. 306; McMechen v. McMechen, 17 W.Va. 683; In re Convey, 52 Iowa, 197, 2 N.W. 1084; Redf. Wills, 29, 30; Schouler, Wills, §§ 169-174; 6 Wait, Act & Def. 383; Abb.Tr.Ev. 113, 114. Such also seems to be the English rule. In Barry v. Butlin, 1 Curt, Ecc. 637, Baron PARKE said: "The rules of law, according to which cases of this nature are to be decided, do not admit of any dispute so far as they are necessary to the determination of the present appeal; and that they have been acquiesced in on both sides. These rules are two: The first, that the onus probandi lies, in every case, upon the party propounding the will, and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. Whether the party propounding a will, said CRESSWELL, J., relies upon a prima facie case, or gives the whole of his proof in the first instance, the onus remains on him throughout." Sutton v. Sadler, 3 C.B. (N.S.) 87; Wallis v. Hodgeson, 2 Atk. 56; Ogle v. Cook, 1 Ves.Sr. 177; Jackson v. Hesketh, 2 Starkie, 518; Fulton v. Andrew, L.R. 7 H.L. 448, 12 Moak, Eng.R. 76; Hodges v. Holder, 3 Camp. 366. So that, although numerous authorities may be cited contra, the rule deducable from these to which we have referred, while admitting the presumption of sanity to exist when, in a civil proceeding, the question of sanity and insanity is directly in issue, fixes the burden of proving sanity, throughout the entire trial, upon the party who asserts it. And Mr. Schouler says, in his excellent work already referred to, that "the larger and better class of American authorities point to the conclusion that the court or jury trying the case must, upon the whole evidence, be satisfied that the testator was of sound mind; so that, if there be inevitable doubt left on this point from all the testimony, the will cannot be considered as proved." And adds that "this conforms to the English rule as stated." Schouler, Wills, § 174, and note 5. So that testamentary capacity is mainly a question of fact, to be determined from a consideration of all the evidence, in conformity to the principles as already stated. Before recurring specially to the evidence, there are some facts which lie on the surface of the record that need to be mentioned.

It appears that the testator, with his wife and children emigrated from Missouri to Oregon in the year 1851, crossing the great plains with ox-teams. After some changes of residence during the first years, he finally settled in Lane county of this state, where he accumulated a large estate, and died at an advanced age. The facts indicate that he was a man of but meager education, but possessed of a vigorous understanding, and much energy and decision of character. To these qualities he joined habits of great industry, strict economy, and sobriety, and vigilant attention to his own affairs and business interests. As a result of such a combination of traits, ...