In re Murphy's Estate

• Decision Date: 27 May 1911
• Citation: 116 P. 1004,43 Mont. 353
• Parties: In re MURPHY'S ESTATE. v. NETT. MURPHY
• Court: Montana Supreme Court

116 P. 1004

43 Mont. 353

In re MURPHY'S ESTATE.

MURPHY v. NETT.

Supreme Court of Montana

May 27, 1911

Appeal from District Court, Lewis and Clark County; J. Miller Smith Judge.

Contest of Edward J. Murphy's will by Mary Murphy against Anna E Nett. Judgment for contestant, and contestee appeals. Reversed and remanded.

H. G. & S. H. McIntire and Homer G. Murphy, for appellant.

Galen & Mettler, for respondent.

BRANTLY C.J.

On December 24, 1909, Anna E. Nett, defendant, filed a petition in the district court of Lewis and Clark county asking for an order admitting to probate a paper purporting to be the last will and testament of Edward J. Murphy, deceased, and to have been executed at Portland, Or., on December 12, 1908. The paper bears the signature of the deceased, attested by two witnesses pursuant to the form prescribed by the statute. On January 8, 1910, Mary Murphy, plaintiff, the mother of the deceased, filed her written opposition to the probate alleging, in substance: (1) That, at the time of the execution of the paper, Edward J. Murphy was insane and wholly lacking in mental capacity to make testamentary disposition of his property, and that the pretended will was not and is not his will; and (2) that the said instrument, if executed at all by the said Murphy, was procured to be executed by undue influence on the part of the defendant. Upon these allegations there was issue by answer. Upon a trial had to a jury, the following findings were returned:

"(1) Was the deceased, Edward J. Murphy, competent to make a last will and testament at the time of the signing of the instrument offered for probate as his will? Answer: No.

"(2) Was the mind of the deceased, Edward J. Murphy, at the time of the execution of the instrument offered for probate as his will, free from the undue influence of the defendant, Anna E. Nett? Answer: No."

The court entered its judgment thereon, rejecting the will and declaring that the deceased died intestate. The defendant has appealed from the judgment and an order denying her motion for a new trial. The principal contention is that the evidence is insufficient to justify the findings. Before proceeding to examine the evidence, however, we may properly notice briefly some suggestions made by counsel for appellant touching the sufficiency of the allegations of fact by plaintiff, showing undue influence, and alleged inconsistency in the findings.

It is suggested that the ultimate facts showing how undue influence was exerted upon the mind of the deceased are not alleged, and hence that this ground of plaintiff's opposition is vulnerable to a general demurrer. We understand that this suggestion carries with it the further suggestion that this ground of opposition is insufficient to sustain a judgment. We do not question the propriety of the rule invoked by counsel (In re Gharky, 57 Cal. 279; In re Sheppard's Estate, 149 Cal. 219, 85 P. 312); but we find nothing in the assignments of error in the brief on this subject. Counsel are therefore not entitled to have the suggestion in this behalf considered. Hickey v. Kaufman, 34 Mont. 106, 85 P. 870; Delmoe v. Long, 35 Mont. 139, 88 P. 778; Lehane v. Butte Electric Co., 37 Mont. 564, 97 P. 1038; Foster v. Winstanley, 39 Mont. 314, 102 P. 574.

If it be conceded that this ground of opposition should be held insufficient as a pleading in point of law, yet, under the view we have taken of the case, the integrity of the judgment is in nowise affected. The allegation of want of testamentary capacity contained in the first ground of opposition is conceded to be, and is, sufficient to support the judgment, and no serious contention is made that the finding in response to the issue tendered thereon is not sufficient.

But counsel say that the two findings are inconsistent, in that the one negatives the existence of the fact found in the other; in other words, that the finding that the deceased executed the alleged will under the impulse of undue influence exerted by the defendant implied testamentary capacity. A person enfeebled in mind and body, though still retaining testamentary capacity, may be more readily swayed and influenced by those about him, than when in his normal condition; yet, in a legal sense, undue influence cannot be exerted upon a person who is so far insane or unconscious as to be destitute of testamentary capacity. Gwin v. Gwin, 5 Idaho, 271, 48 P. 295; Stirling v. Stirling, 64 Md. 139, 21 A. 273; 29 Am. & Eng. Ency. Law (2d Ed.) 104. When in this condition a person is without intelligent volition: he is for that reason not legally responsible for his acts, whether they are prompted by others or not. Undue influence imposes a restraint on the will of the testator, who, but for the restraint, would be free and responsible, so that his testamentary act is not the result of his own volition, but of the will of another. Therefore the findings involve conclusions which cannot logically stand together, and in this sense are inconsistent; yet they are not inconsistent in the sense that each requires the rendition of a different judgment and thus mutually destroy each other. This is the test by which must be determined the question whether the judgment as rendered should be allowed to stand.

The findings are not so intimately connected that error in the one implies error in the other. Hence, if either be supported by the evidence, and it does not appear that substantial error intervened affecting it, the other may be regarded as immaterial. Dexter v. Codman, 148 Mass. 421, 19 N.E. 517. In this case it was said: "It is a mistaken assumption that the issues as to sanity and undue influence, in a case of this kind, are necessarily so connected that error in a finding upon one of them implies error in the finding upon the other. In many cases, perhaps in most, they are very closely connected. In some the connection is slight and unimportant. Where there is a close connection, sometimes it is such that an error in relation to the former would almost certainly involve an error in regard to the latter, while an error in regard to the latter would not be likely to affect the finding upon the former. Sometimes a very important part of the evidence of undue influence is the mental condition of the testator, and sometimes the proof comes chiefly from overt acts of coercive tendency. In the same case there may be evidence tending to show insane delusions affecting the disposition which a testator seeks to make of his property, and evidence of undue influence which has hardly any relation to his mental peculiarity. How far the fact that a jury has gone astray in dealing with one issue shall be deemed important in considering a motion to set aside their findings upon another must depend upon the relations of these issues to each other in the particular case, the evidence introduced upon each, and any facts and circumstances which throw light upon the nature or probable cause of the jury's mistake. And, finally, each issue is to be dealt with by itself, in view of the evidence, and of all that has occurred in the course of the proceedings."

The court should have directed the jury to omit an answer to the second interrogatory if they should answer the first in favor of the plaintiff, and vice versa. But that this course was not pursued does not necessarily require a reversal of the judgment, if either finding is justified by the evidence. Moreover, this contention, like the one first noticed, is made by way of suggestion during the course of the argument upon the sufficiency of the evidence. It is technical in character, is not based upon any special assignment of error, nor is it pointed out wherein any prejudice was wrought by the course pursued at the trial.

As to the mental capacity of the deceased: It would be impossible within reasonable limits to set forth and analyze in detail the large volume of evidence introduced at the trial. We shall therefore state our conclusions upon it, particularizing those portions of it only which we think require special notice.

The deceased was at the time of his death 37 years of age. His father had been addicted to the use of alcoholic liquors prior to the birth of deceased, and was quarrelsome and abusive toward the plaintiff. Because of his abusive conduct on one occasion, when the deceased was about three years old he was struck on the head with a stick of wood by a brother of the plaintiff. Subsequently he became insane and was confined in the asylum for the insane at Warm Springs, dying of dementia in 1907. The deceased was sober and industriously devoted himself to the business of stock raising, with the result that at the time of his death he had accumulated a considerable estate. During the year 1907 the deceased began to show some eccentricities of conduct; but these are significant only when viewed in the light of subsequent events. They were not deemed significant at that time. In August, 1908, while engaged in stacking hay, he fell from the stack sustaining a severe injury to his head. Presently he apparently recovered. During the following October he, with others, accompanied a shipment of cattle, by way of Great Falls, to Chicago. Before reaching St. Paul he became violently insane. Put under the influence of narcotics after his arrival at St. Paul he became better and proceeded to Chicago. On the way he again became violent. Upon his arrival there he was put under treatment. The defendant, who had also gone to Chicago in the meantime, took charge of him and had him under restraint and treatment at different institutions in the city for some eight or ten days. Thereupon, his condition not improving, under the advice of physicians, she took him to Portland, Or., about the end of October,...