In re Barber's Estate

• Decision Date: 25 October 1893
• Parties: In re BARBER'S ESTATE.
• Court: Connecticut Supreme Court

27 A. 973

63 Conn. 393

In re BARBER'S ESTATE.

Supreme Court of Errors of Connecticut.

Oct. 25, 1893.

Appeal from superior court, Hartford county.

The will of James S. Barber was admitted to probate, and contestants appealed to the superior court, where it was set aside. Proponents appeal. Reversed.

W. C. & W. S. Case and T. C. Watrous, for appellants.

C. H. Briscoe, A. F. Aggleston, and W. J. McConville, for appellees.

FENN, J. An appeal having been taken to the superior court from an order and decre of the court of probate for the district of East Windsor, proving and approving an instrument purporting to be the last will and testament of one James S. Barber, disposing of a considerable estate, on the trial to the jury the validity of said instrument was contested, mainly on the ground that the alleged testator was not of sound and disposing mind and memory at the time of its execution. The jury returned a verdict setting aside said will, which was accepted by the court, and judgment rendered thereon. From that judgment an appeal was taken to this court, and several reasons assigned.

We will consider first, as of the greatest general importance, the exceptions to the charge to the jury. Upon the trial the proponents and present appellants, having introduced the alleged will, also introduced the evidence of the two surviving witnesses to the will, tending to prove, and which they claimed did prove, its due execution, and that the testator was of sound and disposing mind and memory at that time. They then rested, and the contestants went forward and introduced evidence to show the want of capacity, mainly, as was claimed, because of the existence of an insane delusion existing in the mind of said Barber in reference to the paternity of his children. This was met by evidence offered by the proponents in rebuttal. The court, in the course of its somewhat lengthy charge to the jury, made several more or less direct references to the subject of the burden of proof upon the question of capacity. We will quote such portions of these references as seem in any way material. Early in the charge, the court having explained what constitutes testamentary capacity, said: "If, gentlemen, you are satisfied by a fair preponderance of the evidence that the testator had this kind of mental capacity, understanding, and strength at the time of making this will, it will be your duty to find that he was of sound mind, and, upon this issue, render a verdict for the proponents in favor of the will. If, on the other hand, you are not satisfied by a fair preponderance of evidence that the testator, at the time of executing this will, had the kind of mental strength and capacity which I have been describing to you, it will be your duty to find that he was not of sound mind, and your verdict should be for the contestants, and against the will. Gentlemen, the burden of proof as to the soundness of mind of the testator lies, in every case, on the parties relying on the will, and they must satisfy you that it is the will of a capable testator; and when the whole matter is before you, on evidence given on both sides, if the evidence does not, by a fair preponderance of it, satisfy you that the will is the will of a competent testator, you ought not to affirm by your verdict that it is. In other words, if, when the whole matter is before you, on the evidence given on both sides, it is left uncertain whether or not the testator was of sound mind, then it is left uncertain whether a person of sound mind, within the meaning of our statute, has made the will, and the will should not be sustained. In the course of the trial, gentlemen, the balance of evidence may fluctuate from one side to the other, but the burden of proof remains where it was at the outset—upon the advocates of the will; and unless, at the close of the trial, the balance is with the advocates of the will, unless the beam of the scale tips down on the side of the advocates of the will, they must fail. It is not sufficient that the scales stand evenly balanced. There must be a fair preponderance in the proponents' favor to justify a verdict sustaining a will. As I have before said to you, no person, unless of the age of eighteen years and of sound mind, can dispose of his or her property by will; hence, when the advocates or proponents of the will present the instrument, they must satisfy you by a fair preponderance of the evidence that the deceased, at the time he executed the will, belonged to the class of persons who by law can make wills." Towards the close of the charge, the court said: "In the case at bar the burden of proof is upon the executor to show that James S. Barber was, at the time of the execution of his alleged will, of a sound and disposing mind; and if, upon the whole evidence, you are uncertain whether James S. Barber, at the time of the execution of said alleged will, was of sound mind or not, then it is left uncertain whether, under the statute, he was capable of making a will, and it is your duty to render a verdict for the contestants. And I will further add, to render a will invalid, because of unsoundness of mind of the testator, it is not necessary to show that, at the time of making the supposed will, he was demented or an imbecile, and wholly deprived of sense. It is sufficient if you are satisfied by a fair preponderance of the evidence that he was affected with an insane delusion or delusions, and that the provisions in his will were the product of such insane delusion or delusions." The proponents, in their reasons of appeal, complain that this charge of the court, and especially the matter contained in the last quotation, (as well as in several other portions of the charge, which we have deemed it unnecessary to quote,) was confusing and contradictory. Confining our comments to the language quoted, we are constrained to say that it appears to us that there is some apparent foundation for this criticism. Taking the language used, strictly and without qualification, there would seem to be three conflicting rules, each distinctly stated: first, that the burden of proving that the will was the sane act of the testator, by a fair preponderance of evidence, lies "in every case," and remains throughout the trial, upon the proponents of the instrument; second, that the burden on the proponents is not that of proof by a fair preponderance of evidence, but by such evidence as brings certainty upon the point to the minds of the triers; third, in order to defeat the probate of a will, on the ground of its being the product of an insane delusion or delusions, the jury should be satisfied, by a fair preponderance of evidence, of the existence and effect of such delusions.

If the last of these rules had stood alone, and had been so stated that the jury might be presumed to have understood it, and that it was their duty to be guided by it, the proponents' ground of complaint against the charge, which we are at present considering. could be dismissed. But, taking the language which we have quoted as a whole, (and there is nothing elsewhere in the charge which in any manner explains or modifies it,) it is not only possible to see how the jury may have been misled, but it is impossible to see how it could have been otherwise. The statement twice made in different portions of the charge—that "if, when the whole matter is before you, on the evidence given on both sides, it is left uncertain whether or not the testator was of sound mind, then it is left uncertain whether a person of sound mind, within the meaning of our statute, has made the will, and the will should not be sustained"—would, as it appears to us, be likely to impress the jury, and remain in their minds, as the salient feature of the charge. Such a principle, if correct, would have the advantage of being most easy to understand and to apply. The trouble is that it is manifestly incorrect, none the less because it appears to be a quotation from the language of the supreme court of Massachusetts in the case of Crownlnshleld v. Crowninshield, 2 Gray, 524, 534, and so much so that it would be injustice to the learned judge to believe that he intended it to be understood or believed that it would be understood by the jury literally, strictly, and without qualification, as by the word "equally" before "uncertain," or by the other language which immediately preceded and that which immediately followed it. As it seems to us, nevertheless, that it must have been, on this ground, therefore, it must be held (as further claimed by the proponents) that the charge of the court was erroneous.

But a question of more general interest and importance remains to be considered, in reference to the portion of the charge stating as the rule that the burden of proof as to capacity, by a fair preponderance of evidence, remains in every case, and throughout, upon the proponents of the will. The inquiry is whether this is a correct statement of the law and practice in this state, or, rather, what the correct rule and principle is. In considering this question, an examination at length of the decisions in other jurisdictions would be of little practical utility, for the slightest inspection will disclose an irreconcilable conflict of views and opinions upon the subject. Thus, in 2 Greenl. Ev. (15th Ed.) § 689, it is said in the text: "In regard to insanity or want of sufficient soundness of mind, we have heretofore seen that though in the probate of a will, as the real issue is whether there is a valid will or not, the executor is considered as holding the affirmative, and therefore may seem bound affirmatively to prove the sanity of the testator, yet we have also seen that the law itself presumes every man to be of sane mind until the contrary is shown. The burden of proving unsoundness or imbecility of mind in the testator is therefore on the party impeaching the will for this cause." While in a note to the same se...