In re Will
| Decision Date | 22 November 1920 |
| Citation | 111 A. 610,31 Del. 108 |
| Parties | IN RE GORDON'S WILL |
| Court | Delaware Superior Court |
Superior Court for Kent County, October Term, 1920.
Appeal from the Register of Wills for Kent County.
Appeal by Joseph R. Smith, executor, and others, devisees, from the decree of the register of wills for Kent county, refusing to admit to probate the will of Mary R. Gordon, deceased. Decree reversed, and record remanded for correction and probate of the will.
The caveat of Daniel C. Crew, T. Benjamin Crew, Robert S. Crew and Howell C. Crew, being heirs at law of said deceased, was received by the register against the allowance of an instrument as the will of said deceased, before its proof alleging that said paper writing is not in fact the last will and testament of said deceased.
In due course the cause came on for hearing before the register who refused to admit the will to probate. An appeal from his decision was taken by Joseph R. Smith, executor, and Violet Crew and Mabel R. Mitchell, devisees, propounders of the will, to the Superior Court for Kent county. Citations were issued for each of the caveators, and also for Philip Crew James Shephard, Carey Shephard, Jr., and Warren Crew, the remaining heirs at law of the deceased. Appearances were entered for the caveators, and there was a return of non est inventus as to each of the four remaining heirs at law of the deceased. As to the latter alias citations issued returnable to the next term of court, when again there was a return on each of non est inventus. Notwithstanding the court was requested to direct an issue to be tried by jury, the cause was tried by the court upon the record and depositions of the witnesses examined and taken at large in writing before the register.
The causes set up against the allowance of the will, the reasons of the court for declining to direct an issue, the general character of the testimony contained in the depositions of the witnesses before the register, and the contentions of counsel for and against the validity of the will, appear in the opinion of the court.
Decree reversed, and record remanded for correction and probate of the will.
James H. Hughes and William R. Russel (of the Maryland Bar) for propounders of the will, appellants.
John B. Hutton and W. Watson Harrington for caveators, appellees.
OPINION
This cause is before the court on appeal from the register of wills for this county in the matter of the probate of the alleged last will and testament of Mary R. Gordon, deceased. The causes of appeal urged at the argument and relied upon by the appellants were that the register erred in refusing to admit said will to probate on the ground that the testatrix when she executed the same was not of sound and disposing mind and memory, and also because she was subject to undue influence.
The caveators have requested the court to direct an issue to be tried by a jury to ascertain whether the paper writing in question is or is not the will of Mrs. Gordon. They ask this, not as a matter of right, but for the assistance and information of the court.
The evidence upon which the caveators rely, excluding that given by two nephews, consists entirely of the testimony of four witnesses, who swore that Mrs. Gordon was mentally incapable of making a will, and two of whom saw Mrs. Gordon on Monday, Friday and Sunday next preceding her death, on the 29th of December last. They were neighbors and called to see if there was anything they could do. Another witness saw her on Christmas day, and had called for the purpose of collecting a bill. He found her so weak that he thought she was not able to attend to business, but he had no conversation with her, did not ask her a question, and admitted that when about to leave Mrs. Gordon said:
"You have come a long ways and had better take your horse and put it in the stable and feed it."
Another witness saw Mrs. Gordon on Friday before her death on Monday, having called to get some geese that he had engaged. He was told that Mrs. Gordon was sick, and did not see her, but some one told her the business of the witness and he heard her say, "He's got the geese." His wife had called for them once before.
The two witnesses who called to see if there was anything they could do were in Mrs. Gordon's room on each of their three visits from a half hour to an hour, and about all they heard her say was:
One of these witnesses testified that on Friday Mrs. Gordon seemed so bad he did not remember her saying anything; she turned yellow that day. This witness admitted that Mrs. Gordon seemed to be a little better on Sunday, the day before she died, and told the witness the grape juice she sent her was good. The husband of this witness thought on Sunday Mrs. Gordon "had been doped, had been given something to put more life in her; she seemed restless." He said he had no faith in Dr. Smith, the attending physician. Mrs. Gordon's nephews were notified by Mrs. Violet Crew of their aunt's illness and two of them came to her home, one three or four days before she died and the other the day before. So far as the testimony shows they had full access to their aunt's room, and liberty to talk with her at all times during their stay, except when she was attending to the execution of her will, when all persons were excluded but the doctor and the attesting witnesses. The nephews testified that their aunt was as bad as she could be, just living, that was all, and incapable of making a will. They said, after Dr. Smith and the attesting witnesses left her room, one of them asked her if she knew what she had done, and she answered, "No." Nothing was said about her having made her will.
It is unnecessary to review at length the testimony of the two nurses who were witnesses for the propounders of the will. Dr. Smith, the principal witness in the case, had never attended Mrs. Gordon before her last illness, and so far as the testimony shows had never previously known her or her nephews or the two nurses who were the chief beneficiaries in her will.
According to all the witnesses Mrs. Gordon was a very sick woman, and critically ill for ten days before her death. She was suffering from pneumonia and her condition grew worse from the time her sickness began till the end. Undoubtedly she was physically very weak, being in bed all the time and wholly unable to wait upon herself. Towards the last she had to be raised and held up when she took her medicine. When well she talked very little, and during her sickness scarcely at all.
One of the nurses, Miss Mabel Mitchell, had lived with and taken care of Mrs. Gordon and her business for three years before she died, and the other, Mrs. Violet Crew, the widow of Mrs. Gordon's favorite nephew, had also been with her, assisting in nursing her for a week before her death.
These two nurses and Dr. Smith, who were with Mrs. Gordon during her illness more than any other persons, and much more capable of observing and knowing her mental condition than any others, testified that although physically very weak, her mind was absolutely normal, and she was mentally alert when she made her will and up to two hours before she died. The will was made about twelve or thirteen hours before her death.
Dr. Smith testified that on the morning of the day before Mrs. Gordon died he advised her if she had any business she wanted to have attended to that she had better have it attended to. He said she had become jaundiced and her heart was weaker, but her mind was alert until a very short time before she died.
To his suggestion about attending to any business, she responded that she wanted to make her will and that her taxes had not been paid. The doctor then said to her, if she wanted to make a will, if she would give him a synopsis of it, he would make a note of it, and have it drawn according to her direction; he asked her how she wanted it. She said she "had been intending to do that for a long while, but had neglected and put it off."
She said she wanted to leave the boys (meaning her nephews) $ 10 apiece; at that juncture Miss Mitchell suggested that she leave them $ 100. "The conversation was absolutely between me and Mrs. Gordon personally; nobody was consulted." After having made the bequests to the boys as she called them, she said, after her bills were paid, she wanted the residue equally divided, between Mrs. Violet Crew and Miss Mitchell. ...
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