McAllister v. Rowland

• Decision Date: 12 December 1913
• Docket Number: Nos. 18,323-(127).,s. 18,323-(127).
• Parties: LELAH McALLISTER and Others v. ARTHUR H. ROWLAND.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

Page 27

124 Minn. 27

LELAH McALLISTER and Others v. ARTHUR H. ROWLAND.¹

Nos. 18,323-(127).

Supreme Court of Minnesota.

December 12, 1913.

Arthur H. Rowland petitioned the probate court for Lyon county for the allowance of the last will and testament of Margaret Bullard, deceased. Lelah McAllister, Beth Bullard, Zoe Bullard and Alma Bullard filed objections to the allowance of the will. From the order of the probate court admitting the will to probate, they appealed to the district court for that county. The appeal was heard before Olsen, J., and a jury which answered in the affirmative the question whether the testator was of sound and disposing mind at the time of making the will and in the negative the question whether the will was the result of undue influence exercised upon the testator by her sister, Mrs. Thomas, or by Mrs. Cardwell or by either of them. From the order granting contestants' motion for a new trial, Arthur H. Rowland appealed. Affirmed.

Fremont S. Brown, Knox & Faber and Charles M. Start, for appellants.

Albert R. Allen and O'Brien, Young & Stone, for respondent.

BUNN, J.

April 12, 1912, Margaret Bullard, then a widow 76 years of age, made her will. She died June 9, 1912. On June 24 the will was filed for probate in Lyon county. Four granddaughters of the testatrix, the respondents here, contested the will on the ground that the testatrix was of unsound mind at the time the will was made, and on the ground of undue influence. The probate court admitted the will, and the contestants appealed to the district court of Lyon county. The issues were there tried and submitted to a jury, which, in answer to special questions, found that the testatrix was of sound and disposing mind at the time she made the will, and that there was no undue influence. The contestants made a motion for a new trial on the ground that the verdict was not justified by the evidence, and on the further ground that the court erred in excluding certain evidence. The trial court granted the motion, upon the ground, as expressly stated in its order, of "error occurring at the trial, as mentioned in the attached memorandum, and not on account of any insufficiency of the evidence to sustain the verdict." The executor appealed from this order.

The only question on this appeal is whether the trial court erred in excluding the evidence hereinafter referred to. By the will, after bequests of $50 each to her four granddaughters, $100 each to two nephews, and $200 to another nephew, the testatrix devised and bequeathed all the residue of her property to her brother, Richard Rowland, of Tracy, Minnesota, and to her sister, Elizabeth Thomas, of Chicago, Illinois, share and share alike. The value of the estate was stated to be $7,000.

On the trial contestants called Richard Rowland for cross-examination under the statute. Testatrix, who at the time of making the will, resided in Fairmont, on that day or the following went to live with her brother, Richard Rowland, in Tracy, where she continued to live until her death. The contestants offered to prove by the witness that on May 16, 1912, he made an application to the probate court of Lyon county for the appointment of a guardian of testatrix, and offered in evidence the petition. They also offered to show that in pursuance of the petition a guardian was appointed. These offers were objected to, and the evidence was excluded. The petition was signed and sworn to by Richard Rowland, the witness, and stated that Margaret Bullard "is very deaf, and is almost totally blind, and her mental faculties and ability to attend to or manage her own affairs are greatly impaired, and that by reason of the said facts she is incompetent to have the charge and management of her property or business affairs." This petition was filed May 22, 1912. It does not appear when the order appointing the guardian was made, or what was its language, but we may presume that it was made before the death of Mrs. Bullard, and that it was based on the grounds alleged in the petition. The offers were objected to, and the evidence excluded. On the motion for a new trial the court concluded that the record of the proceedings for the appointment of a guardian and the adjudication making such appointment should have been received in evidence, as throwing light upon the mental condition of the testatrix at the time the will was made. Whether or not the court was correct in this conclusion is the main question on this appeal.

The will was executed April 12, 1912. The petition for the appointment of a guardian was made by Richard Rowland on May 16 1912, and filed May 22. The order appointing the guardian was made between this date and June 9. The petition could only be admissible on the ground that it was an admission against interest on the part of Richard Rowland, one of several beneficiaries, under the will. The order or judgment, granting it to be an adjudication that Mrs. Bullard was incompetent at the time the court entered such order, spoke as of that date, or as of the time the petition was made. It clearly was not an adjudication that Mrs. Bullard was mentally incompetent at the time the will was made. Was it admissible as some evidence of her mental state on April 12?

1. It is well settled that when the issue is the mental capacity of a testator or grantor at the time of making a will or deed, evidence of incapacity within a reasonable time before and after is relevant and admissible. In re Pinney's Will, 27 Minn. 280, 6 N. W. 791, 7 N. W. 144. Mr. Wigmore says: "Courts are today universally agreed that both prior and subsequent mental condition, within some limits, are receivable for consideration; stress being always properly laid on the truth that these conditions are merely evidential towards ascertaining the mental condition at the precise time of the act in issue. There seems to be no agreed definition of the limit of time within which such prior or subsequent condition is to be considered; and in the nature of things no definition is possible. The circumstances of each case must furnish the varying criterion, and the determination of the trial judge ought to be allowed to control." 1 Wigmore, Evidence, § 233, and cases quoted in text and cited in note.

2. It is equally well settled that a judgment or order in proceedings for the appointment of a guardian of an incompetent person and taking from such person the management of his property, is admissible in evidence in any litigation whatever, but not conclusive, to prove the person's mental condition at the time the order or judgment is made or at any time during which the judgment finds the person incompetent. 3 Wigmore, Evidence, § 1671, and cases cited. Field v. Lucas, 21 Ga. 447, 68 Am. Dec. 465; Den v. Clark, 5 Halst. 217, 18 Am. Dec. 282; Davis v. Calvert, 5 Gill & J. (Md.) 269, 25 Am. Dec. 282; Yauger v. Skinner, 14 N. J. Eq. 389; Hill v. Day 34 N. J. Eq. 150; Van Deusen v. Street, 51 N. Y. 378; Willis v. Willis, 12 Pa. St. 159; Hutchinson v. Sandt, 4 Rawle, 233, 26 Am. Dec. 127; Rippy v. Gant, 39 N. C. 443.

A finding of incompetency in guardianship proceedings, or in proceedings upon a writ of de lunatico inquirendo, for which the guardianship proceedings are the modern equivalent, is admissible as evidence of the mental condition of the person at the time covered by such finding, notwithstanding that the parties to the litigation are different, and notwithstanding the hearsay rule.

3. Whether the person's mental condition at the time covered by the finding is evidence of his mental condition at a prior time would seem logically to be a question of the probative force or weight of the evidence, or its tendency to prove the fact in issue. It is difficult to see why...