Hall v. Perry

• Decision Date: 14 May 1895
• Citation: 33 A. 160,87 Me. 569
• Parties: HALL v. PERRY.
• Court: Maine Supreme Court

33 A. 160

87 Me. 569

HALL

v. PERRY.

Supreme Judicial Court of Maine.

May 14, 1895.

(Official.)

Appeal from supreme judicial court, Knox county.

Arthur C. Perry offered the will of Margaret B. Perry for probate. From a judgment approving and allowing the will, F. A. Hall appeals. Affirmed.

C. E. & A. S. Littlefield, for appellant.

A. A. Beaton and R. R. Ulmer, for appellee.

WHITEHOUSE, J. This is an appeal from the decree of a judge of probate approving and allowing the will of Margaret B. Perry, of the following tenor:

"Know all men by these presents, that I, Margaret B. Perry of Rockland, Knox county, Maine, being weak in body, but of sound and perfect mind and memory, do make, publish, and declare this, my last will and testament, and herein dispose of all my worldly estate in manner following, to wit:

"First I order and direct my executor hereinafter named to pay all my just debts and funeral charges as soon as may be after my decease.

"Second. I give and devise to my adopted son, Arthur C. Perry, for and during the term of his natural life, the homestead upon which I now live, situate on Ocean street, in the city of Rockland, Maine, to have and to hold the same to him and his assigns, with all the appurtenances thereto belonging, for and during the term aforesaid. And I request the said Arthur C. Perry, if ever disposed to sell his right in the house and lot aforesaid, to give the first refusal of the same to my daughter, Mrs. Hezekiah Hall.

"Third. I give and bequeath to my daughter, Frank, wife of Hezekiah Hall, the sum of three hundred dollars ($300.00).

"I also give and bequeath to my said daughter, Frank, the furniture now in the parlor bedroom in my said house, together with the carpet now on the parlor floor of said house.

"Fourth. I give and devise to my granddaughter, Emma Perry, one of the children of said Arthur C. Perry, the reversion of the said house and lot hereinbefore devised for life to said Arthur C. Perry; my intention being that on the death of said Arthur C. Perry that said house and lot shall go to said Emma Perry, should she then be living. If she should not be living, then I devise said reversion to the heirs of the said Arthur C. Perry.

"I also give and bequeath to the said Emma Perry the furniture now in the front chamber in my said house.

"Lastly. I give, bequeath, and devise to my said adopted son, Arthur C. Perry, his heirs and assigns forever, all the rest, residue, and remainder of my estate, real, personal, or mixed, wherever found and however situated; and I do hereby appoint the said Arthur C Perry sole executor of this, my last will and testament, hereby revoking all former wills by me made."

One of the reasons originally assigned for the appeal was that the will was the result of undue influence on the part of Arthur C. Perry, but it is not seriously urged that there is sufficient evidence to establish this ground of appeal as an independent proposition.

The principal contention now is that the testatrix was not of sound and disposing mind at the time of the execution of the will admitted to probate. This objection is also duly set forth in the reasons of appeal, and the question is now to be determined by the law court, without the aid of a jury trial, upon the evidence adduced at the hearing before the judge of probate, or so much thereof as may be deemed legally admissible, with certain additional facts agreed upon by the parties and presented in the report as a part of the evidence.

The burden is upon the proponent to prove that the testatrix, at the time of the execution of the will, had mental capacity requisite to make a valid will. It is incumbent upon him to show that August 24, 1892, Margaret B. Perry was a "person of sound and disposing mind"; that she had a mind sound enough properly to devise and bequeath her property; that she had mental capacity sufficient to enable her to understand the business in which she was engaged when she made the will.

A "disposing mind" involves the exercise of so much mind and memory as would enable a person to transact common and simple kinds of business with that intelligence which belongs to the weakest class of sound minds; and a disposing memory exists when one can recall the general nature, condition, and extent of his property, and his relations to those to whom he gives, and also to those from whom he excludes, his bounty. He must have active memory enough to bring to his mind the nature and particulars of the business to be transacted, and mental power enough to appreciate them, and act with sense and judgment in regard to them. He must have sufficient capacity to comprehend the condition of his property, his relations to the persons who were or should have been the objects of his bounty, and the scope and bearing of the provisions of his will. He must have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and be able to form some rational judgment in relation to them. See Robinson v. Adams, 62 Me. 369; Barnes v. Barnes, 66 Me. 286; Delafield v. Parish, 25 N. Y. 9; 1 Redf. Wills, 121-135; Schouler, Wills, § 68.

But mere intellectual feebleness must be distinguished from unsoundness of mind. The requirement of a "sound and disposing mind" does not imply that the powers of the mind may not have been weakened or impaired by old age or bodily disease. A person may be incapacitated by age and failing memory from engaging in complex and intricate business, and incapable of understanding all parts of a contract, and yet be able to give simple directions for the disposition of property by will. Great age may raise doubt of capacity so far as to excite the vigilance of the court, but it does not alone constitute testamentary disqualification. On the contrary, as stated in Maverick v. Reynolds, 2 Bradf. Sur. 360: "It calls for protection and aid to further its wishes, when a mind capable of acting rationally, and a memory sufficient in essentials are shown to have existed, and the last will is in consonance with definite and long-settled intentions, is not unreasonable in its provisions, and has been executed with fairness."

When the mental capacity of Margaret B. Perry is subjected to these recognized and familiar tests, it is the opinion of the court, after a careful examination of the evidence reported and of the elaborate arguments of counsel, that it was not devoid of any element requisite to make a valid will. The internal evidence afforded by the will in question executed by her August 24, 1892, is not only no impeachment of her testamentary capacity, but rather a confirmation of it. The leading provision of the will, in which she gives the homestead to her "adopted son," Arthur C. Perry, during his life, and the remainder to his daughter, whom she mentions as her "granddaughter, Emma Perry," appears to have been in conformity with a desire which she had long cherished, and a purpose which she had explicitly declared long before the execution of the will. It is the uncontradicted testimony of two witnesses that two years and a half before the will was made she stated to them that she "intended for Arthur to have the house," and that it was her husband's wish that Arthur should have it when they were done with it. Nor is there anything in the evidence tending to show that the disposition of her property according to the terms of this will was unreasonable or unnatural. It nowhere appears that the "adopted son" was in any respect unworthy of the benefit bestowed upon him; and it may properly be inferred from the evidence that, as her daughter, Mrs. Hall, was happily married, and provided with a comfortable home, the testatrix considered her situation in life so fortunate as to place her beyond any need of her mother's bounty. The request that Mrs. Hall should have the refusal of Arthur's right in the house in the event of a sale, with the bequests to her of the parlor furniture and the sum of $300, was a kindly remembrance, apparently evincing not only natural affection, but a sense of justice towards her daughter. And all the provisions of the will, examined without the aid of extrinsic evidence, would seem to indicate an active memory on the part of the testatrix, and a...