In re Almira E. Cowdry's Will
| Decision Date | 09 March 1905 |
| Parties | IN RE ALMIRA E. COWDRY'S WILL |
| Court | Vermont Supreme Court |
October Term, 1904.
APPEAL FROM A DECREE OF THE PROBATE COURT establishing an instrument as the last will and testament of Almira E. Cowdry. George Wheeler, proponent. Henry C. Holmes and others, contestants. Trial by jury at the March Term, 1903, Washington County Stafford, J., presiding. Verdict and judgment for the proponent. The contestants excepted. The opinion states the facts.
Reversed and remanded.
T J. Deavitt, E. H. Deavitt, and Senter & Senter for the contestants.
Present ROWELL, C. J., TYLER, MUNSON, START, WATSON, and HASELTON, JJ.
Before the passage of No. 58, Acts of 1898, the statute provided for the appointment of guardians only of spendthrifts, insane persons, and certain absconding persons. Section 2760 mentions such guardians by name, and defines their authority and control. Section 7 provides that the words, "insane persons," shall include every idiot non compos, lunatic, and distracted person.
A person who is adjudged a non compos, and placed under guardianship as such, is thereby rendered prima facie incapable of making a will while the adjudication remains in force. In re Wheelock's Will, 76 Vt. 235, 56 A. 1013. The act of 1898 was passed as an addition to V. S. 2760, and provides that guardians of persons who have been adjudged mentally incapable of taking care of themselves or their property by the probate court appointing them, shall, until they are discharged, have the possession and management of the estates of their wards, and the care and custody of their persons, etc. It is apparent that it was the purpose of this amendment to enlarge the scope of the statute, and to add thereto a new class of persons over whom guardians could be appointed; and such must be taken to be its effect,--for it can have no other,--as it is not to be declared nugatory if it can be held effective. This amendment was undoubtedly prompted by the well known fact that many persons, and especially old persons, were willing to have a guardian, but were not willing to submit to an adjudication that would class them as insane, as was the case with this testatrix. Hence the amendment recognizes a difference between a non compos and his class, and a person merely lacking mental capacity to take care of himself or his property. The mind of a non compos is to be taken, prima facie, as insane and nondisposing, while the mental incapacity of the amendment does not imply such a mind, but may well be taken, prima facie, to consist with a sound and disposing mind and memory. This case is a good illustration of the utility of the amendment. The testatrix was very old and infirm, and had long been a town charge. All at once and unexpectedly she fell heir to $ 6,000. No wonder she did not know what to do with it, nor how to take care of it. But this does not make against her mental soundness, but only against her mental ability to meet the requirements of her new condition, and hence the necessity of a guardian.
We hold, therefore, that the adjudication of her mental incapacity to take care of herself and her property, and the appointment of a guardian thereunder, did not render her prima facie mentally incapable of making her will.
The executor and proponent of the will is the principal beneficiary under it, and was guardian of the testatrix before and at the time the will was made. The contestants requested a charge that the law presumes undue influence when a ward makes a will in favor of her guardian, and views the act with suspicion. The court refused, but charged instead that the burden was on the guardian to show no undue influence on his part. This was not enough. The presumption of undue influence, which the law undoubtedly raised, did more than to take the burden of proof from the contestants and place it upon the guardian. It established, prima facie, the existence of such influence, and was sufficient to defeat the will unless and until it was overcome by counter proof, and should have been used as a piece of evidence, and thrown into the scale and weighed as such in favor of the contestants. The nature, force. and effect of legal presumptions, and their proper place in the law, have been much discussed. The French Civil Code calls all presumptions, consequences that the law or the judge draws from a known fact to an unknown fact; and a legal presumption, one that a special law applies to certain acts or certain facts. Cachard's Translation, Articles 1349-1350.
Prof. Thayer says that disputable presumptions of law do not belong to the law of evidence, but to a much larger topic, the topic of legal reasoning in its application to particular subjects; that they are aids to reasoning and argumentation, and assume the truth of certain matters for the purpose of some given inquiry; that they may be grounded on general experience, or probability of any kind, or merely on policy and convenience; that on whatever basis they rest, they operate in advance of argument or evidence, or irrespective of them, by taking something for granted--by assuming its existence; and that the exact scope and operation of these prima facie assumptions are, to cast upon the party against whom they operate the duty of going forward in argument or evidence on the particular point to which they relate; but that they are not in themselves either argument or evidence, although for the time being they accomplish the result of both. Prelim. Treat. on Ev. 314.
But the Supreme Court of the United States takes a very different view of this question in Coffin v. United States, 156 U.S. 432, 452-460, where it is held on full consideration and without apparent dissent, that the presumption of innocence is evidence in...
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