Kramer v. Weinert

• Decision Date: 06 January 1887
• Citation: 1 So. 26,81 Ala. 414
• Parties: KRAMER v. WEINERT and others.
• Court: Alabama Supreme Court

1 So. 26

81 Ala. 414

KRAMER v. WEINERT and others.

Supreme Court of Alabama

January 6, 1887

Appeal from probate court, Mobile county.

Contested probate of will. Judgment for contestants. Executor appeals.

Fredk. G. Bromberg and Pillaus, Torrey &amp Hanan, for appellants.

L H. Faith, contra.

CLOPTON J.

An instrument purporting to be the will of Minna Frank having been propounded for probate, some of the heirs appeared to contest its validity, and issues were formed which a jury was impanelled to try, involving inquiries as to the testamentary capacity of the testatrix, and the procurement of the will by undue influence. In such proceeding and on such issues the particular time to which the investigation should be directed is the execution of the will; but, for the purpose of elucidating the competency and freedom of will of the testatrix at that time, her mental condition, preceding and subsequent, and all circumstances relevant to the issues, may be proved. O'Donnell v. Rodiger, 76 Ala. 222.

By request of the contestants, the court instructed the jury that if the testatrix, at the time of the execution of the will, "had a diseased brain, and, from this cause or disease, her mind was so unsound as not to remember the names of her relations, and to judge soundly of her acts she was then about to do, or to know and understand the business she then had in view, and to think and act on that business soundly, then she did not have capacity to make a will." The charge raises the question of the degree of mental capacity requisite to make a valid will. The term "of sound mind," as used in our statutes regulating the power to dispose of property by will, has the same meaning and expresses the same rule as to the test and degree of testamentary capacity, as the usual and general expression "of sound and disposing mind and memory." Neither the statutory nor the common-law term is to be understood in the sense in which the literal signification of the words import,-a mind unimpaired and unbroken, "having all the organs and faculties complete and in perfect action,"-but in the legal sense, as understood and practically applied in adjudging the validity of wills. On the other hand, dementia or idiocy, or a total deprivation of reason from any cause, is not requisite to destroy testamentary capacity. But it is not every impairment of the mind which renders a person incompetent. Mere weakness of intellect is not sufficient to incapacitate. Delusion or partial insanity will not invalidate a will which is not the offspring of such delusion or partial insanity. And a rule which would make a capacity to manage and transact business generally the standard of testamentary capacity was repudiated in Stubbs v. Houston, 33 Ala. 555. It is said: "There may be a competency to make a will without such capacity as would enable a man to transact the ordinary business of life." Mind and memory may be impaired and enfeebled by age or disease, and yet the testator possess sufficient capacity to make a will, though it may stimulate a vigilant scrutiny. The impairment must extend to a deprivation of the rational faculties, the use and exercise of which are requisite to a proper and intelligent disposition of property. The rule, as established in this state, and sustained by the weight of authority, as the test of testamentary capacity in cases like the present is: if the testatrix had mind and memory sufficient to recall and remember the property she was about to bequeath, and the objects of her bounty, and the disposition which she wished to make,-to know and understand the nature and consequences of the business to be performed, and to discern the simple and obvious relation of its elements to each other,-she had, in contemplation of law, a sound mind. Taylor v. Kelly, 31 Ala. 59; O'Donnell v. Rodiger, supra; Stevens v. Vancleve, 4 Wash. C. C. 262; Sloan v. Maxwell, 3 N. J. Eq. 563; Lowder v. Lowder, 58 Ind. 538; White v. Farley, December term, 1886-87.

The first of the alternative propositions of the charge under consideration asserts two standards of testamentary capacity,-inability to remember the names of relations, and to judge soundly of the act about to be done. The hypothetical failure of memory is based, so far as appears from the evidence, upon a mistake in the will in giving the Christian name of a sister of the testatrix who was the mother of some of the objects of her bounty, though she substantially recollected and stated the names of the beneficiaries, and their places of residence. The question is not the degree of memory, but its disposing power. A testator may not be able to recollect and recall the...