McClintock v. Curd

• Decision Date: 31 July 1862
• Citation: 32 Mo. 411
• Parties: MCCLINTOCK et al., Plaintiffs in Error, v. CURD et al., Defendants in Error.
• Court: Missouri Supreme Court

32 Mo. 411

MCCLINTOCK et al., Plaintiffs in Error,

v.CURD et al., Defendants in Error.

Supreme Court of Missouri.

July Term, 1862.

Error to Callaway Circuit Court.

The facts are sufficiently stated in the opinion. The following instructions given do not appear in the opinion:

By the court:

3. If the jury find that the testator was a young man of weak, disordered intellect; was so impaired and weakened from any cause as to subject him to the dominion, control, or influence of those with whom he lived; and the jury find that they, or any of them, exercised such influence and control over his mind in the disposition of his property as to destroy his liberty and free will, and cause it to be made to suit their wishes, and not his, this is such an undue influence as will invalidate the will of the testator, and the verdict should be against the will.

Asked by defendant:

1. Before the jury can find that the will of Thomas Freeland is invalid by reason of undue influence exercised over the testator Thomas Freeland, they must be satisfied from the evidence that a dominion over the free will of the testator was acquired, destroying his free agency, and constraining him to do, against his free will, what he was not able, by reason of such influence, to resist; and that their influence was operating upon the testator at the time of the execution of the will.

Asked by plaintiff:

3. If the jury find any evidence of fraud or imposition in procuring the execution of the will, they may consider the dispositions of property actually made in the will, to guide their judgment in making up their verdict.

The following instructions, asked by plaintiff, were refused:

1. A disposing mind and memory is a mind and memory which have the capacity of recollecting, discerning and feeling the relations, connections and obligations of family and blood; and unless the jury find from the evidence that Thomas R. Freeland, at the time of the execution of the will, had such mind and memory, they must find against the will.

2. If the jury find from the evidence that the whole or any part of the will of Thomas R. Freeland was suggested to him by any other person and adopted by him, such adoption must not have been the result of incapacity, weakness of mind, fraud, circumvention, or undue influence; and whether it was so, is for the jury to determine from all the facts and circumstances in the case.

4. To sustain the will, the jury must find it to be the will of Thomas R. Freeland. If it be the will of another, to which he assented from mere habit, and that the habit was produced by prostration of both body and mind, it cannot in any sense of the word be considered as his will, and ought not to be sustained; and of this the jury must judge from all the circumstances in the case.

7. If the jury find from the evidence that Thomas R. Freeland, at the time of the execution of the will, from natural imbecility, disease, or any other cause, was incapable of managing his own affairs, they must find against the will.

8. Should the jury find from the evidence that Thomas R. Freeland, at the time of the execution of the will, had a mind of sufficient sanity for general purposes, and of sufficient soundness and discretion to regulate his affairs in general; yet, if they further find that he was weak in body and mind, and under the dominion or influence of those about him, sufficient to prevent the exercise of such discretion, and that such dominion or influence did prevent the exercise of such discretion in the execution of the will; and of this they must judge from all the circumstances in the case.

Ansell, for plaintiff in error.

I. The court erred in refusing the plaintiffs the opening and closing argument in the cause. (Taylor v. Wilburn, 20 Mo. 306.)

1. The burden of proving unsoundness or imbecility of mind in the testator is upon the party impeaching the validity of the will for that cause. (2 Greenl. § 689; 1 Greenl. p. 93, § 78--p. 96, § 81.)

2. The question is not who denies, or who affirms the issue; the burden here is upon the (caveators) plaintiffs. They do not deny the execution of the will, but set up insanity, and such an influence exercised over the mind of the testator as will vitiate the will. (See remarks of Judge Clayton in Chandler v. Ferris, 1 Harr. 454, 461.)

3. On a trial where the sanity of the testator is in question, and where parties setting up and insisting on the validity of the will have the opening and closing of the case, they must prove the due execution of the will and the sanity of the testator; but where the parties opposed to the will admit the formal execution of the will, and allege insanity and undue influence, and have the opening and closing of the case, the onus probandi falls on them to show the insanity and undue influence over the testator. (Same case.)

4. After the formal proof of the paper, the executor might fold his arms until the plaintiffs produced something to overthrow his case, which is prima facie established by the production of the will and the inference of law in favor of sanity. We are of the opinion that the plaintiffs have the opening and closing. (Clayton, C. J., in Chandler v. Ferris, 1 Harrington, 461.)

5. From the nature of the issue, the onus probandi is with the defendants (now plaintiffs). The execution is proved, and the only question is as to the testator's insanity. The law presumes sanity until the contrary is proved. We are of the opinion that the defendants (plaintiffs) have the right to conclude. ( Per curiam, Bell v. Buckmaster; Chandler v. Ferris, n.; 1 Harr. 460.)

II. The court erred in refusing plaintiffs permission to read the deposition of W. H. Russell, which was on file among the papers in the cause, and taken by defendants as evidence in chief, and also parts of it in rebuttal of evidence offered by defendants for the reason given by the court for excluding the same, “that plaintiffs should have given defendants notice of their intention to use it before the trial.” (Greene v. Chickering & McRay, 10 Mo. 109.)

III. The first instruction of the court ought not to have been given. It, in effect, tells the jury, that unless he was an idiot, he was competent to make a will; one lingering ray of intellectual light is all that is required.

The second instruction of the court ought not to have been given for the same reason. It is more objectionable than the first.

If there was no evidence offered tending to prove undue influence, the third instruction of the court was unnecessary; but if Russell's deposition had been given in evidence, as it ought to have been, the third instruction would have been properly given.

The fourth instruction of the court may be good law and good doctrine in the lunatic asylum; but it is thought that when a man is proven insane upon one subject, he is not far from the dividing line of sanity and insanity upon all other subjects.

The fifth instruction given by the court is a bird of very equivocal plumage and of doubtful gender, of French origin. The court will not recognize perverted feelings, unaccompanied with mental delusion, as constituting insanity, which is nothing more or less than saying that moral insanity is not recognized by law.

IV. The first instruction asked by plaintiffs and refused by the court is undoubtedly law. To say that a disposing mind and memory is anything less than a mind and memory which have the capacity for recollecting, discerning and feeling the relations, connections, and obligations of family and blood, would be to substitute driveling imbecility in the place of sane and perfect memory, and to confound and obliterate all landmarks between sanity and insanity. (See Den v. Johnson, 2 South. 454.)

The seventh instruction asked by plaintiffs was improperly refused by the court. If Thomas R. Freeland, at the time of the execution of the will, was, from imbecility, disease, or any other cause, mentally incapable of managing his own affairs, he was incapable of making a valid will. He ought to have had a disposing memory, so that he was able to make a disposition of his property with understanding and reason; and that is such a memory as the law calls sane and perfect memory. (Boyd v. Eby, 8 Watts, Pa., 70; Davis v. Calvert, 5 Gill. & John. 269; Newhouse v. Godwin, 17 Barb., N. Y., 236.)

Moral insanity accompanied with delusion.--Delusion has generally been laid down as essential to insanity; that is, the fancying things to exist which can have no existence, and are impossible, according to the nature of things--as that trees will walk and statues nod--and which fancy no proof or reasoning will remove. (Shelford on Lunacy, 293.)

Whenever a person once conceives something extravagant to exist which still has no existence whatever, and he is incapable of being permanently reasoned out of that conception, he is said to be under a delusion, and delusion in this sense of it, is almost, if not altogether, a convertible term with insanity. (Den v. Clark, 5 Halst. 79; Stanton v. Witherspoon, 16 Barb., N. Y., 259.)C. H. Hardin, for defendant in error.

I. The court properly permitted the defendants to open and close the case. The only issue under the statute being whether the writing was the will of Thomas R. Freeland or not; the question as to proof of insanity or undue influence being simply subordinate inquiries which conduce to prove the issue “will or no will.” (Cravens v. Faulconer, 28 Mo. 19; Withington v. Withington, 7 Mo. 589; 1 Greenl. Ev. 77; Hawkins v. Simms, 13 B. Monroe, 269; 8 Conn. 261; Brooks v. Barrett, 7 Pick. 9; 8 Greenl. 42; Phelps v. Hartwell, 1 Mass. 71, 73 & n.;Buckminster v. Perry, 4 Mass. 593; Riggs v. Wilton, 13 Ill. 15; Potts v. House, 6 Ga. 324; 2 Gray, 524; Cilley v. Cilley, 34 Me. 162; Barry v. Butlin, 1 Curt. 637; Harris v. Ingledew, 3 Peer Wms. 93.) But, assuming even that the court committed error in allowing defendants the opening and conclusion, this court will not reverse for such cause. (Wade v....