In re Ferguson's Estate

• Decision Date: 29 July 1927
• Docket Number: No. 61.,61.
• Citation: 215 N.W. 51,239 Mich. 616
• Parties: In re FERGUSON'S ESTATE. Appeal of McKAY et al.
• Court: Michigan Supreme Court

239 Mich. 616

215 N.W. 51

In re FERGUSON'S ESTATE.

Appeal of McKAY et al.

No. 61.

Supreme Court of Michigan.

July 29, 1927.

Error to Circuit Court, Wayne County; Guy A. Miller, Judge.

Proceedings for the probate of the will of Mary Ferguson, deceased, contested by John McKay and another. Judgment sustaining will, and contestants bring error. Affirmed.

Argued before the Entire Bench.

Dohany & Hersch, of Detroit, for appellants.

Frederic T. Hardward, of Detroit, for appellee.

WIEST, J.

This is a will contest on the grounds of mental incapacity and undue influence. Proofs in the case were directed to the issue of mental capacity of the testatrix.

June 6, 1918, Mary Ferguson, then 81 years of age, having a husband but no issue, executed the will in suit, making bequests to 24 named beneficiaries in various amounts. Those so named included three sisters, numerous nephews and nieces, and two societies. The residue she gave, in equal parts, to her husband, the Protestant Orphan Asylum, and the Florence Crittenden Mission, both of Detroit. April 2, 1920, she executed a codicil revoking a small bequest to Nellie Ferguson, her husband's niece, increased a bequest to a grandniece, and devised described real estate to two of her nieces. June 12, 1920, she executed a second codicil in which she revoked the residuum clause of her will (her husband having died), increased bequests to several nieces and nephews, decreased one former bequest, gave $3,000 to the Protestant Orphan Asylum, $2,000 to the Florence Crittenden Mission, and $1,000 to the Home for the Friendless in Detroit. She also made a small bequest to an old employee of her husband, and $200 each to her chauffeur and nurse, if they remained until her death. The residue she gave to the nephews and nieces to whom she bequeathed cash bequests:

‘Each nephew and niece to receive such proportion of the said residue as the cash legacy so given to such nephew or niece bears to the amount of such cash legacies.’

July 21, 1920, she executed another codicil merely revoking the appointment of one of the executors, leaving the other the sole executor. She died August 3, 1923, leaving an estate of about $200,000. Cerebral hemorrhage caused her death.

John McKay, brother of testatrix, not willed anything, and Belle Buchanan, sister, willed $1,500, are contestants of record.

The contest was certified to the circuit court. At the close of contestants' proofs the court directed a verdict sustaining the will. Contestants review by writ of error and insist there was evidence raising an issue of fact for consideration of the jury. We think the circuit judge was right, and will state our reasons.

Mary Ferguson was born in the Highlands of Scotland, as was also her husband. She was poor and did not have much education. One child was born, but died in infancy. When the will in question was executed Mr. Ferguson was suffering from an incurable cancer. He had made a will in which he devised to his wife certain real estate which she in turn, before his death, devised to two nieces. She was advised by her husband that in his will he had devised such property to her, and she, knowing that fact and of his approaching death, felt free to devise the property, by will, to her nieces. At her husband's death she took title under his will. The fact that she so devised such property in the will, executed before her husband's death, and therefore before she became the owner thereof, is much stressed by contestants as indicative of her want of understanding of the nature and extent of her property. Having in mind that her will did not speak until her death we think there is nothing in the contention made.

It is well settled in this jurisdiction that lay witnesses may not give opinion evidence that a testator was mentally incompetent to execute a will without first giving such facts as, in the opinion of the court, show a reasonable basis for an opinion. Fox v. Joslin, 225 Mich. 536, 196 N. W. 394. The testimony of the lay witnesses disclosed no acts showing want of sufficient mental capacity on the part of testatrix to make the will and codicils.

Mrs. Ferguson had a Highlander's opinion of a Lowlander, and in her hauteur twitted the chauffeur with being a Lowlander. He outlived the Highlander, and as a witness gave his opinion of her mental deficiencies. His opinion rises no higher than the claimed facts he detailed, and such facts failed to show mental incapacity on the part of testatrix to make the will. As this witness was a principal one for contestants we will discuss his testimony. William Haining, chauffeur, entered the employ of Mr. and Mrs. Ferguson in the fall of 1917, and was paid ‘a mere $40 a week.’ He ordered the groceries and necessities and, on occasions when help left, prepared meals. He left in July, 1921. He says he knew of no business transacted by Mrs. Ferguson. This was not strange, as she had others for that purpose. He also testified that all the time he was there she was under care of a doctor. It is significant that contestants called the doctor, who attended Mrs. Ferguson from 1911 until a week before her death and had him list her physical ailments, and that he said she was mentally competent and was not suffering senile psychosis. Haining said she was eccentric because she thought a maid and others were stealing things; that she had a key to a bureau drawer where she kept ‘bits of things and money,’ forgot the hiding place, and when she found the key would ‘make a big fuss.’ She gave away worn-out clothing, terming it ‘beautiful stuff,’ and Haining knew it was rags; she was changeable in giving him orders; she did not talk with him much about her property, but he thought she did not understand or realize what property she owned. He thought she did not know a $5 bill from a $50 bill because she could not see it on account of poor eyesight; that she would read, or pretend to read, papers, but could not read a book, and, after pretending to read, she would ask him what was in the paper; that she talked with him about her relatives and stated her opinion of some of them, and after a day or two ‘she would suddenly switch and instead of praising them she would ridicule them’; that sometimes she failed to recognize relatives, and after she was told who they were she would say that ‘she didn't recognize them intentionally or that she didn't know them’; that in 1919 or 1920, her brother, John McKay, called, and she did not know him, but after being told ‘whom he was she insisted upon his staying at the house and visiting and made quite a fuss about it.’ Being asked, ‘Is that your opinion that she was not mentally bright enough and her mind not sound enough to understand the provisions of this codicil at that time (the codicil of April, 1920)?’ he answered:

‘I would say not. I cannot tell. I am not a doctor. From my personal observation I would say she was not. * * *

‘Q. When you say you could not testify upon her mentality what do you mean? * * * A. I think that is for some one that has more experience than I. * * *

‘Q. From your personal observation what is your opinion as to whether or not she could understand the terms of this codicil of April 2, 1920, on that date? A. She could not.’

On cross-examination he testified:

‘Q. You do not know what mentality is required to make a will? A. Probably as much as the average man.’

The witness also testified that Mrs. Ferguson was very close about paying money to people.

The contestants claim that the opinion evidence of two medical experts, based on statements made in hypothetical questions, showed want of mental capacity of testatrix to execute the will and should have taken the issue to the jury. The hypothetical questions included the claimed physical and mental condition of testatrix to the time of her death on August 3, 1923, five years after the execution of the will and three years after the last codicil. The basis for the opinions of the experts was the assumption that testatrix was afflicted with senile psychosis. The family physician, a practitioner of high standing and long experience, and called as a witness by contestants, testified, prior to the experts, that testatrix was not, in his opinion, afflicted with senile psychosis. The experts evidently gave little heed to such testimony, on the theory that, in the early stages of such disease, no one but an expert like themselves might detect it, and one even thought it advisable for old persons, before making wills, to be examined by some one in their branch of the medical profession. Senile psychosis seems to be a stage somewhere between normal mentality and senile dementia. One expert testified:

‘Senile psychosis is a definite medical disease-a medical term for a disease. The symptoms of senile psychosis, and what this disease covers is a disease process involving primarily the brain. That is, in company with this brain process, there is degeneration in other faculties in the body, but diagnosis of psychosis is made upon involvement of the brain, in that we have a disturbance of memory, we have a disturbance of the ability of the patient to recall time, place and person; we have disturbance in the emotional conduct, that is, namely, their moods; we have disturbances in their irritability, their loquacity, their ability to talk, to carry on connected conversations. We find disturbances in what we, as psychiatrists term the stream of thought. By the stream of thought, we mean the ability to carry one connected sentence with another, to carry the content of that sentence, as with the whole conversation. We find disturbances in insight and judgment. By ‘insight and judgment’ we mean the ability to decide situations that come up to them in everyday life; also, we find, as a result of that, definite changes, that is, of a pathological nature. * * * In the body-not only in the body, but usually in the brain. * * * Those changes are usually in the nature of a...