In re Miller's Estate

• Decision Date: 04 January 1897
• Docket Number: 111
• Citation: 179 Pa. 645,36 A. 139
• Parties: In re Estate of Alexander Miller, deceased. Alexander Miller's Appeal
• Court: Pennsylvania Supreme Court

36 A. 139

179 Pa. 645

In re Estate of Alexander Miller, deceased. Alexander Miller's Appeal

No. 111

Supreme Court of Pennsylvania

January 4, 1897

Argued November 10, 1896

Appeal No. 111, Oct. T., 1896, by Alexander H. Miller, from decree of O.C. Allegheny Co., June T., 1892, No. 202, dismissing petition for an appeal from register of wills. Reversed. MITCHELL and FELL, JJ., dissent.

Petition for an appeal from register of wills admitting will to probate. Before OVER, J.

The facts appear by the opinion of the Supreme Court.

Error assigned was in dismissing the appeal.

The decree of the court below is reversed, and it is further ordered that an issue be awarded to determine whether the alleged will and codicils were procured by the undue influence of Florence C. Miller.

W. H Tomlinson and Charles E. Hogg, for appellant. -- Where there is a substantial dispute upon a material question of fact such an issue is a matter of right, and the test of substantiality in the dispute is that a verdict could be supported by the trial judge, upon a review of all the evidence adduced: Sharpless's Est., 134 Pa. 250; Knauss's App., 114 Pa. 10; Armor's Est., 154 Pa. 517.

A man of sound mind and disposing memory is one who has a full and intelligent knowledge of the act he is engaged in, a full knowledge of the property he possesses, an intelligent perception and understanding of the disposition he desires to make of it, and of the persons and objects he desires shall be the recipients of his bounty: Wilson v. Mitchell, 101 Pa. 495; Thomas v. Carter, 170 Pa. 272.

On the trial of an issue devisavit vel non a conflict in the evidence, a contrariety of the opinions expressed, and the veracity of the witnesses, are matters peculiarly within the province of the jury, and with them the court has nothing to do: Shaver v. McCarthy, 110 Pa. 339; Newhard v Yundt, 132 Pa. 324; Shaffer v. Clark, 90 Pa. 94: Weaver v. Craighead, 104 Pa. 288; Grubbs v. McDonald, 91 Pa. 236; Irish v. Smith, 8 S. & R. 573; McTaggart v. Thompson, 14 Pa. 149; Reichenbach v. Ruddach, 127 Pa. 564.

Undue influence to affect a will must be such as to subjugate the mind of the testator to the will of the person operating upon it: Tawney v. Long, 76 Pa. 106; Trumbull v. Gibbons, 2 Zabriskie's N.J. Rep. 155; Tyler v. Gardiner, 35 N.Y. 559; Reeme v. Parthemere, 8 Pa. 462; Davis v. Calvert, 5 Gill & John. 269.

That a will may be established in part and rejected in part is well established law: Steadman v. Steadman, 14 A. 406; Florey v. Florey, 24 Ala. 241.

The declarations of the principal legatee are competent evidence when the question of his fraud or undue influence is involved in the case, and may be considered as any other testimony: Morris v. Stokes, 21 Ga. 552; Redf. Am. Cas. on Wills, 200; Herster v. Herster, 116 Pa. 612; Rambler v. Tryon, 7 S. & R. 90.

The court in considering the sufficiency of the testimony to establish a fact must take the evidence as true with every reasonable influence favorable to him who has the burden of proof: Blakeslee v. Scott, 37 Leg. Int. 474; Hiss v. Weik, 78 Md. 439.

Johns McCleave, with him Clarence Burleigh and D. T. Watson, for appellee. -- The will was not obtained by undue influence exercised by Florence C. Miller: Dean v. Negley, 41 Pa. 317; Lang's Est., 44 Leg. Int. 431.

The burden of proof as to the existence of such constraint, at the very time of making the will, is upon the contestant: Levis's Est., 140 Pa. 179; Trost v. Dingler, 118 Pa. 269; Miller v. Oestrich, 157 Pa. 268; Hoshauer v. Hoshauer, 26 Pa. 407.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE DEAN:

Alexander H. Miller, a member of the bar of Allegheny county, on September 4, 1887, died at the age of seventy-three years; his wife had died seven years before, but he left surviving him six children, Alexander H., this appellant, with four brothers and a daughter, Virginia, married to Patrick H. Winston. He left a will, dated May 24, 1883, to which were appended two codicils, one dated May 29, 1884, and the other July 20, 1886. His estate, made up of realty and personalty, was valued at between three and four hundred thousand dollars.

By the will he gave his executors in trust for his daughter Virginia, $25,000; to his son Zant, $5,000; to his son Hampton, an annuity of $500 for life; to Thomas, $5,000; to his brother George W., an annuity for life of $200. All the residue he gave absolutely to his son Florence, and appointed him and James J. Donnell executors of the will.

By the first codicil, he adds $5,000 to the bequest to his son Thomas, making it $10,000; to his son Alexander H., who had been given nothing in the will, he gave an annuity for life of $400. By the second codicil, he gave to his son Hampton, in addition to his annuity, a house and lot then in the son's occupancy, and increased Alexander's annuity from $400 to $500.

The result of the will and codicils was to leave full three fourths of the estate to his son Florence. The will was proved September 10, 1887, without notice to the heirs or legatees; an appeal was taken by Hampton J. Miller from the decree admitting the will to probate, which was dismissed because of neglect of appellant to file the bond required by law (See 159 Pa. 562). On June 27, 1892, Alexander H. Miller, this appellant, presented his petition to the orphans' court for allowance of an appeal from same decree. In this petition he averred testamentary incapacity of his father at the date of the execution of the will and codicils, and undue influence exercised over him by Florence C. Miller, the principal beneficiary, to procure the making of them. It is not important, in the issue before us, to notice and discuss the decrees on this petition in the court below, in the interval between probate and dismissal of petition; they afford us no aid in the decision of this contention. It is sufficient to say the appellant got his case properly before the court below, and that there was a regular judicial decree on the merits, after hearing, by a court of competent jurisdiction, against him, from which he now appeals to this court.

He alleges the court erred: first, in not determining there was evidence for a jury that the testator lacked testamentary capacity at the date of the execution of the will and codicils; and second, in not finding there was evidence for a jury that the will was procured by undue influence exercised over him by Florence C. Miller.

When the question before an appellate court is, whether the evidence adduced in the court below was of that character which required its submission to a jury, and the answer of the appellate court is in the affirmative, a sort of restraint in the expression of an opinion, is always necessarily imposed on the appellate court; not because of doubt in the correctness of its judgment, but because of the possible effect of elaborate discussion on the retrial of the cause. Hence, in whatever we may say in vindication of this judgment, we desire it to be distinctly understood we are not pointing out what the verdict of the jury ought to be, but only the evidence on which a jury, after a consideration of it, may rest a verdict, if in view of all the evidence such verdict be warranted.

The appellant averred the testator lacked testamentary capacity when he executed the will and codicils; the court below, as a question of fact, determined this averment was so unfounded that there was no evidence which would warrant a jury in sustaining it, but that on the contrary, he possessed "testamentary capacity of the highest order."

It was alleged the testator had become so addicted to the use of intoxicating liquor years before the date of the will, and at that date the habit was so aggravated and confirmed, that his mental powers were weakened, and bordered on imbecility. In proof of this, twenty witnesses were called, some of whom had peculiar and long continued opportunities of observation, who testified that he began the drink habit about the year 1865, and kept it up until after the date of the will and codicils, and until his death; it had so grown on him as early as 1879 that he then drank, at times as much as a quart a day, and that it might be easy of access, he kept it in large quantities, both at his house and law office; he bought whiskey for his own use on more than one occasion by the barrel. One of the witnesses to the excessive use of liquor was W. A. Lewis, Esq., who commenced reading law with him in 1865, and continued in his office until 1882; some of the others were servants in his family, others street car conductors on the lines leading past his home; besides these disinterested witnesses, were some of his children, living much of the time in his house. That he drank liquor to gross excess from 1879 to his death cannot be questioned from this testimony, unless almost every one of the twenty witnesses be guilty of flat perjury. If they be believed, then his brain was saturated with alcohol for almost ten years before his death.

But further than this, it was averred and not denied, the testator when he executed the will and codicils was afflicted with locomotor ataxia. This, appellant alleged, contributed to his physical and mental prostration. As to the probable effects of alcoholism and the disease, locomotor ataxia, on the mind, the testimony of reputable experts was offered by the contestants, but rejected by the court, for the reason that a prima facie case of incapacity had not been made out, and the further reason, that a hypothetical question put to the experts, purporting to embrace the facts, omitted material facts proved by appellee. We do not think the grounds of the rejection...