In re Disbrow's Estate

• Decision Date: 29 September 1885
• Citation: 24 N.W. 624,58 Mich. 96
• Parties: In re DISBROW'S ESTATE. [1]
• Court: Michigan Supreme Court

24 N.W. 624

58 Mich. 96

In re DISBROW'S ESTATE. ^[1]

Supreme Court of Michigan

September 29, 1885

Error to Kent.

CHAMPLIN, J.

In this cause the paper writing alleged to be the last will and testament of Eliza H. Disbrow was propounded for probate in the probate court for the county of Kent, by the said Levi M Schofield, proponent, in and by a petition filed in said court, upon the fifteenth day of July, 1884, which petition was in the usual form. The said contestant appeared, and filed her answer to said petition, thereby objecting, as one of the heirs at law and next of kin of said deceased, to the allowance and probate of said paper writing as the last will and testament of said Eliza H. Disbrow deceased, for the reason that the said deceased, at the time of the making and execution thereof, was not of sound mind or testamentary capacity; that she was under restraint and undue influence at the time of the execution thereof, and was unduly influenced to make the same by the said proponent and his wife, Mrs. Levi M. Schofield, the legatees and devisees named in said instrument; and that the said instrument was not, in fact, the last will and testament of said deceased. And upon the hearing of said matter, the probate judge of said court having decided in favor of the validity of said will, an order was entered in said cause allowing the same, and admitting it to probate as the last will and testament of said Eliza H. Disbrow, deceased, from which order or decree of said probate court an appeal was taken by said contestant to the circuit court for the county of Kent; and said appeal having been duly perfected, an order was entered framing the issue in said cause as follows to-wit: "Whether the paper writing probated by the probate court of Kent county, as the last will of said deceased, is, in fact and law, the last will of said Eliza H Disbrow, deceased." And the said cause having been brought to trial before a jury duly impaneled to try the same upon the issue thus framed, the said jury found the said issue in the affirmative, and judgment was thereupon rendered by said court in the usual form, upon and in accordance with the said verdict, declaring the said will to be the last will and testament of said Eliza H. Disbrow, deceased.

On the trial in the circuit court, Mrs. L.M. Schofield, who was named as a legatee in the will, was produced as a witness by the proponent, and asked the following questions: "Question. Now, I will call your attention to this will. Before this will was made, did you have any conversation with her upon the subject of her making her will?" Whereupon the attorneys for said contestant objected to said question, and to the witness answering the same, for the reason that said question was incompetent and inadmissible, for the reason that the said witness, Mrs. Schofield, was made incompetent and disqualified as a witness in her own behalf, being a person for whose benefit the suit or proceeding was prosecuted, and a party in interest, and therefore the statute (section 7545, How.St.) was a bar to the admission of her testimony on the point in question, and excluded her from answering the said question, and from testifying on the point, for the reason that the matter, if true, must have been equally within the knowledge of the deceased, Mrs. Disbrow, and not known to any other person; and that the said circuit judge overruled the said objection and allowed the said question to be put, and answered by said witness. And the said witness answered the said question as follows: "Answer. Well, there was in January. I suppose this would be what would come under that head. In January she was very much troubled. In the morning she came down, she would say, 'I could not sleep; my mind is in such a condition, I cannot sleep.' I wanted to know what was the matter. She said her affairs was not in a shape that she would want to leave them if she should drop off. I said: 'Put them in a shape that you can relieve your mind. Don't let such a thing as that keep you awake.' For she would feel very badly when she didn't get her sleep, and she said she wanted to talk to me about it. I said I had nothing to say on that question; that must be for herself; she must go to her lawyer and make her own will; I had nothing to do with that. She was then going down to Mr. Taggart's every day for four or five days, and then she said: 'I feel easier. I have got that thing settled.' "

This constitutes the first assignment of error. The ruling of the court was correct. The contestant had introduced testimony tending to prove that Mrs. Schofield had exerted an undue influence over the testatrix in making her will, and she was introduced for the purpose of rebutting this evidence. She was not a party to the proceedings to establish the will. She may be interested, but such interest is remote and contingent. The debts must first be paid, and these may consume the whole estate. Under statutes or practice where interested persons are disqualified, she would be a competent witness. Freeman v. Spalding, 12 N.Y. 373; Lawyer v. Smith, 8 Mich. 411-424. But our statutes have removed the disqualification of a witness on the ground of interest, and there appears to be no reason why she is not a competent witness.

The second assignment of error is substantially the same as the first, and must be overruled for the same reason.

The third and fourth assignments of error are based upon the refusal of the court to give the following instructions, namely: "Third. If you find that a confidential relation existed between the parties, as the contestant claims, and that Mrs. Disbrow reposed her confidence in Mr. and Mrs. Schofield, and that they had such influence over her as is claimed, that influence must be kept free from selfish interest and cunning and overreaching bargains, and in their dealings with her no selfish advantage must have been taken of this influence. Such influence must be exercised in good faith and not abused. It must be directed with reference to Mrs. Disbrow's best interests, and not to further their own selfish interests at her expense. Fourth. If you find that this confidential relation in fact existed, and that the Schofields possessed the influence over Mrs. Disbrow that it is claimed they did, and that she reposed her trust and confidence in them as claimed, the situation would impose a solemn obligation upon the Schofields to abstain scrupulously from attempting to derive any pecuniary benefit to themselves which selfish motives might suggest, at the sacrifice of those interests which they were bound to protect; for if confidence is reposed in that manner, it creates a high and sacred trust and an obligation and duty which must be observed. If confidence is reposed, it must be faithfully acted upon and preserved from any intermixture of imposition. If the means of personal control are given, they must always be restrained to purposes of good faith."

The confidential relation alluded to in the above requests refers to the evidence introduced by the contestant, tending to prove that the proponent of the will was, at the time of the death of Mrs. Disbrow, and had been for two years prior thereto, pastor of the Westminster Presbyterian church, of which Mrs. Disbrow was a member and constant attendant up to the time of her death, which was very sudden, and while she was walking upon the street; and Mrs. L.M. Schofield was the wife of her pastor. She resided in her pastor's family, and by her will made Mr. and Mrs. Schofield her sole legatees and devisees of all her property.

The contestant's counsel claims that these requests should have been given to the jury for a standard of conduct on morality that should govern the jury in their deliberations over the point whether Rev. Mr. Schofield and wife did what they ought not to have done in obtaining this will when confidential relations existed between them and the old lady. And they insist that when such relation exists, a different kind of conduct is required on the part of beneficiaries under a will, where they procure the testator to make the gifts to them, than would be required of strangers; that in such cases there is a "technical morality" which imposes a duty, where confidence is reposed, to faithfully act upon it free from any intermixture of imposition; and if influence is acquired it must be kept free from the taint of selfish interest and cunning and overreaching bargains. The question presented is whether the charge of the court sufficiently covered the point presented.

Upon an examination of the charge of the court we are satisfied that the court, in a clear and perspicuous charge to the jury covered the whole law applicable to the case, and that his refusal to charge in the language of the request was not error. He instructed the jury upon the law covered by the requests that "the contestant claims that she has put evidence in tending to prove that Mrs. Disbrow made this will in favor of her religious adviser and his wife, both of whom it is claimed were her confidential and trusted friends, to the exclusion of the contestant, her niece, and a natural object of the testatrix's bounty; and that Mr. and Mrs. Schofield had constant opportunities of exerting undue influence, and that the will is unreasonably and extravagantly in their favor. If you find from all the evidence in the case that such confidential relations in fact existed between the parties as claimed by the contestant, and that the opportunity for undue influence existed, as claimed; and if you find as a fact that the will presented was unreasonably and extravagantly in favor of Mr. and Mrs. Schofield, to the exclusion of the natural objects of Mrs. Disbrow's bounty,--if you find all this as a...