McHugh v. Fitzgerald

• Decision Date: 18 December 1894
• Citation: 61 N.W. 354,103 Mich. 21
• Court: Michigan Supreme Court
• Parties: MCHUGH ET AL. v. FITZGERALD ET AL.

61 N.W. 354

103 Mich. 21

MCHUGH ET AL. v. FITZGERALD ET AL.

Supreme Court of Michigan

December 18, 1894

Error to circuit court, Wayne county; Robert E. Frazer, Judge.

Proceeding by Lydia H. McHugh, executrix, Mary Shattuck, and others, to probate the will of Delia M. Dunn, deceased. Margaret Fitzgerald and others contested the will, on grounds of mental incompetency and undue influence. From a judgment entered on a verdict for proponents, contestants appeal. Affirmed.

James H. Pound and Cassius Hollenbeck, for appellants.

Charles Flowers, for appellees.

GRANT J.

The will of the testatrix, Mrs. Dunn, was contested on two grounds,-mental incompetency and undue influence. The jury rendered a verdict sustaining the will. Mrs. Dunn died of pneumonia. The will was executed about noon of the day preceding her death. The proponents, to whom the property was devised, were her sisters; the contestants, her half-sisters. The proponents lived in Buffalo, N.Y. Mrs. Dunn directed them to be summoned. They arrived the night previous to the execution of the will, and were present when it was executed. There are 48 assignments of error, of which those will be noticed which we consider of importance.

1. Dr Duffield Stewart had known Mrs. Dunn for 12 or 15 years, and attended her in her last sickness. He testified fully as to her condition and disease, and that, "when left alone she would wander off and talk to herself." He visited her four times the day the will was executed,-in the morning about noon, late in the afternoon, and again in the evening. He testified that her mind seemed clear whenever she was spoken to; that she answered all questions intelligently; seemed to appreciate everything that was going on about her, except when she was left alone. He then testified, under objection, that he thought she was competent to make a will. The testimony did not refer, as counsel claim, to her physical, but to her mental, condition. The testimony was clearly competent.

2. The scrivener who drew the will testified that the proponents were present; that Mrs. Dunn was very weak; that he did not think he understood a word spoken by her to him or to anybody else; that she tried to speak, but he could not understand her. He further testified fully to all that was said and done by the proponents and by himself. On cross-examination by contestants' counsel, the witness was asked: "So that, as far as that is concerned, while it might possibly have met her approval, practically that was the sisters' will?" This was one of the questions, viz. that of undue influence, upon which it was the province of the jury to pass. His own opinion on this subject was incompetent and properly excluded.

3. Evidence of the relations and intercourse existing between Mrs. Dunn and her sisters and half-sisters, and prior statements that she intended the proponents should have her property, were competent evidence for the consideration of the jury. Mrs. Dunn had no children, and any circumstances tending to show that she preferred the proponents to the contestants was competent, as showing a reason for the disposition of her property, and had an important bearing upon the question of undue influence.

4. The testimony of one of the proponents that Mrs. Dunn had stated to her that she intended to leave her property to them is not within the prohibition of section 7545, How. St. ^[1] Brown v. Bell, 58 Mich. 58, 24 N.W. 824; Schofield v. Walker, 58 Mich. 96, 24 N.W. 624; Lautenshlager v. Lautenshlager, 80 Mich. 290, 45 N.W. 147.

5. A Mrs. Bayliss had known Mrs. Dunn about 25 years. She and her daughter saw Mrs. Dunn in the evening of the day the will was executed. She testified that Mrs. Dunn recognized them both; that she had no trouble in understanding her; that Mrs. Dunn told her she was taken ill the Sunday night previous; that witness asked her if she could do anything for her, to which she replied, "No"; that, while witness was fanning her, she had occasion to get up; that she called for Jennie, and asked witness to leave the room. The witness was then asked, "Would you say at the time whether she understood or was competent?" to which she replied, "She seemed to be." "Q. What would you say as to whether at that time her mind was clear? A. It seemed to me to be. She seemed to be clear enough." We think this testimony cannot be construed into an opinion as to her competency to make a will, but only as to her condition at the time, and her ability to talk and understand. The claim was made by the contestants that she had then lost the power of speech. It is not clear that the witness' opinion as to her competency to make a will would not have been proper, under the decision in People v. Borgetto, 99 Mich. 336, 58 N.W. 328. We find no error in this.

6. A physician testified for the contestants that a delirious person was not competent to comprehend business subjects, and other similar testimony, based upon hypothetical questions. On cross-examination the witness was permitted to answer, under objection, several questions, of which the following is an example: "Suppose this woman, on Saturday morning, should tell her sisters and those around her that she wanted some one to go and get some one to make a will. Would that be evidence of delirium?" These questions covered certain facts which the proponents claimed to have proven. The questions might very properly have been excluded, as it required no evidence to substantiate the facts inquired about. It is common knowledge that the conditions referred to in the questions are not evidence of delirium, but of its absence. We cannot therefore hold that the testimony was prejudicial.

7. Testimony was introduced showing that contestants took no steps to contest this will until approached by an attorney who went from Detroit to Buffalo to see them about instituting suit. The court subsequently ruled all this testimony...