Conely v. McDonald

• Decision Date: 14 January 1879
• Citation: 40 Mich. 150
• Court: Michigan Supreme Court
• Parties: Edwin F. Conely v. Henrietta McDonald

40 Mich. 150

Edwin F. Conely v. Henrietta McDonald

Supreme Court of Michigan

January 14, 1879

Submitted November 22, 1878

Error to Wayne. Submitted November 22, 1878. Decided January 14 1879.

Proceedings affirmed.

Maybury & Conely, Fred. A. Baker and Ashley Pond for plaintiff in error.

Chas B. Howell, C. I. Walker and J. Logan Chipman for defendant in error, cited as to testamentary capacity, Kempsey v. McGinniss, 21 Mich. 123; Parish Will Case, 25 N.Y. 105; 1 Redf. on Wills, 126, and criticised the rule that a case ought not to be submitted to the jury unless there is evidence that ought reasonably to satisfy it that the fact sought to be proved is established, referring to Wittkowsky v. Wasson, 71 N.C. 451; Improvement Co. v. Munson, 14 Wall. 442; and to Ryder v. Wombwell, Pleasants v. Fant, Com. v. Clark, and Ins. Co. v. Rodell, reviewed in the opinion. Marked changes in temper, disposition and character may indicate insanity. Redfield on Wills, 67-69.

Marston, J. The other Justices concurred.

OPINION

Marston, J.

Under the issue as framed in this case, evidence tending to show undue influence was competent and admissible in evidence. The court in charging the jury, being of opinion that upon this branch the testimony did not tend to show undue influence, withdrew that question from their consideration.

The answer of the witness Frances A. Estabrook to the twenty-seventh interrogatory ^[*] was properly excluded. The interrogatory as framed permitted her to base her opinion in part upon what she had heard within a given time. This it is claimed from the form of the question could only mean and be understood by her as to what she had heard deceased say. The question is not so limited, and she clearly may have understood it in a different sense. Where a party insists upon an answer to an interrogatory he must see that it is not susceptible of a construction which would enable the witness in answer thereto, to testify concerning matters clearly incompetent, or as in this case to express an opinion, based upon hearsay evidence, the nature or character of which would be wholly unknown.

After the evidence was all in, counsel for proponent requested the court to instruct the jury, 1st, "There is no evidence in the case tending to show that the testator when he executed the will in controversy was in any respect of unsound mind, and the jury are therefore bound to assume that he was fully competent to make such a will;" 2d, "Upon the whole case the verdict must be for the proponent." These requests were refused, and to the charge as given no exceptions were taken.

It was not seriously disputed on the argument but that there was testimony in the case tending to show that the testator did not have sufficient capacity to make the will in question. It was, however, urged very strenuously that there was not sufficient evidence, all of which is returned, to sustain the verdict in this case, and consequently that the second above request to charge should have been given.

We had supposed that the law was well settled in this State as to the duty of the court under such circumstances. It is true the question may not have been discussed at length, and the authorities bearing thereon cited in any one particular case, but the question has frequently been referred to and acted upon in cases where perhaps, at least in some of them, it was of minor importance. As the question is one of importance in this case, and has been ably argued and authorities cited, more especially the decisions of the English courts and of the Supreme Court of the United States, it may be well to consider the matter at some length and see what the true rule is or should be in all such cases, and in the light thereof determine the controversy in this case. In England the rule is laid down that a scintilla of evidence clearly would not justify the judge in leaving the case to the jury; that there must be evidence on which they might reasonably and properly conclude that the issue was proven. See Ryder v. Wombwell, Law Rep., 4 Exch. 38, where many of the cases are collected and citations therefrom given.

When we turn to the decisions of the United States Supreme Court, it would seem at first view as though the rule there laid down was not uniform, especially as between some of the later and earlier cases. As, however, the earlier cases are cited in support of those later, we think there was no intention to overrule the former, which certainly were very clear upon this question. A brief reference to some of them may be permitted.

In Pleasants v. Fant, 89 U.S. 116, 22 Wall. 116, 22 L.Ed. 780, the true principle was said to be "that if the court is satisfied that, conceding all the inferences which the jury could justifiably draw from the testimony, the evidence is insufficient to warrant a verdict for the plaintiff, the court should say so to the jury." In Commissioners v. Clark, 94 U.S. 278, 24 L.Ed. 59, following the English rule, it was said a scintilla would not be sufficient; that "before the evidence is left to the jury, there is or may be in every case a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed."

In Schuchardt v. Allen, 68 U.S. 359, 1 Wall. 359, 17 L.Ed. 642, it was said, "A circuit court has 'no authority to order a peremptory nonsuit against the will of the plaintiff.' Where there is no dispute about facts, and the law arising upon them is conclusive against the right of the plaintiff to recover, it is proper for the court so to instruct the jury. If the evidence be not sufficient to warrant a recovery, it is the duty of the court to instruct the jury accordingly. 'This is equivalent to a demurrer to the evidence, and such an instruction ought to be given whenever the evidence is not legally sufficient to serve as the foundation of a verdict for the plaintiff.' This practice 'has in many of the States superseded the ancient practice of a demurrer to evidence. It answers the same purpose and should be tested by the same rules. A demurrer to evidence admits not only the facts stated therein, but also every conclusion which a jury might fairly or reasonably infer therefrom.'"

In Drakely v. Gregg, 75 U.S. 242, 8 Wall. 242, 19 L.Ed. 409, Davis, J. said: "The only question with which we have to deal at the present time is, whether the evidence in this record tended to prove the position assumed by the plaintiffs in error; for if it did, the learned court should either have submitted the evidence on this point to the consideration of the jury, or if, in the opinion of the court, there were no material extraneous facts bearing on this question, and the contract relied on must be determined by the commercial correspondence alone, then to have interpreted this correspondence and informed the jury whether or not it proved the contract to be of the character contended for by the plaintiffs in error." The evidence in this case consisted of a voluminous correspondence, and some parol proof explanatory of the conduct of the parties, and the duty of the court in reference to a construction of the written correspondence, and of the jury as to the extraneous facts were clearly distinguished.

In Hickman v. Jones, 76 U.S. 197, 9 Wall. 197, 19 L.Ed 551, the court instructed the jury to acquit the defendants. Swayne, J. said: "There was some evidence against both of them. Whether it was sufficient to warrant a verdict of guilty was a question for the jury under the instructions of the court. The learned judge mingled the duty of the court and jury, leaving to the jury no discretion but to obey the direction of the court. Where there is no evidence, or such a defect in it that the law will not permit a verdict for the plaintiff to be given, such an instruction may be properly demanded, and it is the duty of the court to give it. To refuse is error. In this case the evidence was received without objection, and was before the jury. It tended to maintain, on the part of the plaintiff, the issue which they were to try. Whether weak or strong, it was their right to pass upon it. It was not proper for the court to wrest this part of the case, more than any other, from the exercise of their judgment. The instruction given overlooked the line which separates two separate spheres of duty. Though correlative, they are distinct, and it is important to the right...