Messner v. Elliott

• Decision Date: 03 January 1898
• Docket Number: 77
• Citation: 39 A. 46,184 Pa. 41
• Parties: Amanda Messner and Samuel J. Heath, for himself and as trustee, Pearl Ramsey, Bessie Heath, Estella Heath, Samuel J. Heath and Julia Elliott, minors, v. Mary S. Elliott, Appellant
• Court: Pennsylvania Supreme Court

39 A. 46

184 Pa. 41

Amanda Messner and Samuel J. Heath, for himself and as trustee, Pearl Ramsey, Bessie Heath, Estella Heath, Samuel J. Heath and Julia Elliott, minors, v. Mary S. Elliott, Appellant

No. 77

Supreme Court of Pennsylvania

January 3, 1898

Argued October 26, 1897 [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal, No. 77, Oct. T., 1897, by defendant, from judgment of C.P. No. 2, Allegheny Co., April T., 1895, No. 223, on verdict for plaintiffs. Affirmed.

Issue devisavit vel non. Before MAGEE, J.

At the trial it appeared that the issue was to determine (1) testamentary capacity; (2) undue influence.

Under the terms of the alleged will, Mary Elliott, the only child of the decedent was disinherited. The chief beneficiary under the will was Amanda Messner, who had lived with decedent for a year and a half before her death. Bequests were also made to the children of Samuel J. Heath who was appointed executor. Heath was a relative of the decedent's husband. The evidence tended to show that the contestant lived in another part of the county and seldom or never visited her mother.

Margaret Belsar, a witness for defendant, having testified that she was an intimate friend of and frequent visitor at the house of testatrix, was asked, "What was her custom about the use of opium?"

Objected to as too general. Objection sustained and bill sealed for defendant. [11]

Philip O'Hara, a witness for defendant, having testified that testatrix was generally under the influence of liquor or opium, was asked, "Will you state whether or not at any time she was not able to converse with you?"

Objected to as leading. Objection sustained and bill sealed for defendant. [13]

Julia Culp, a witness for defendant, having testified in a deposition that she was a sister and near neighbor of testatrix, testified as follows: "After she took her bed she did not talk sensible. I cannot recollect what foolish things she did or said."

Upon objection this portion of her deposition was excluded and bill sealed for defendant. [14]

Upon objection the court also excluded from Julia Culp's deposition the following: "I tried time after time to get her to quit using the stuff, but she could not talk sensible about it." Bill sealed for defendant. [15]

The court also excluded from the deposition: "She said they were tormenting her to make a will. I did not ask her who was tormenting her." Bill sealed for defendant. [16]

On objection the court excluded from the deposition of John S. Lytle, a witness for defendant, "Q. Do you know whether she became more addicted to the use of whisky in the last years of her life? A. Well, I thought she did." Bill sealed for defendant. [18]

The court admitted under objection and exception the following testimony of F. R. Storer, a witness for plaintiff, "Q. On that occasion did she seem to be under the influence of liquor or any drug? A. Not that I could notice." [20]

E. P. Douglass, an attorney-at-law, a witness for plaintiffs, testified to certain interviews and a business transaction which he had had with testatrix, and he was then permitted to testify under objection and exception as follows: "Q. From those interviews and that business transaction I wish you would state whether in your opinion she was able to transact business. A. I thought from my conversation with Mrs. Heath at that time that she was a woman who was amply able to take care of her affairs. [21] Q. How was her conversation, Mr. Douglass, connected or disconnected? A. I didn't see any difference between her conversation and that of the ordinary client who comes in and wants a job of that kind done." [22]

W. S. Fenton, a witness for plaintiffs, testified under objection and exception as follows: "Q. How did she converse, in a connected manner or disconnected manner? A. In my opinion she talked very intelligently. I thought she was an intelligent woman. [23] Q. What is your opinion as to her ability to transact business? A. I thought she was perfectly competent to transact business. She fully understood the business, -- the purpose I was there for, -- for to get her return of moneys at interest; and she gave it to me and fully understood it was necessary to be qualified, and led me to understand she fully understood business." [24]

J. M. Shoaf, a witness for plaintiffs, testified under objection and exception: "Q. Well, then, Mr. Shoaf, what was your opinion as to her ability to transact business? A. I thought she was fully competent to transact the business I was doing with her or I would not have done business with her." [25]

Thomas Reynolds, a witness for plaintiffs, testified under objection and exception: "Q. I wish you would state what your opinion was and is as to her ability to transact business. A. I think she was perfectly competent to transact business. [26] Q. And how was it as being rational? A. I considered her conversation rational." [27]

The court charged in part as follows:

The facts which have been introduced by a number of witnesses on the part of the contestant of the will, Mrs. Elliott, are to the effect that Mrs. Heath, from 1865, to the day of her death, indulged in the use of whisky, and that the indulgence of the appetite for drink grew so that, at and before March 15, 1892, the date of the will, she was consuming a quart of whisky daily; that during the same period she used, at first laudanum, and then opium, and that before the making of the will and afterwards, she used the drug in large quantities. Dr. Hart stated that she used six hundred grains in a little over three days, and another witness stated it was one and a half ounces a week. The effect of the indulgence in these articles is presented in the testimony. Now, the drinking of whisky and the taking of opium did not necessarily incapacitate her from transacting business, but the fact of her indulgence, and the conduct on the part of Mrs. Heath, and her condition at the time of the execution of the will, and at times prior and subsequent thereto, are shown by the testimony, which, it is contended by the defendant, indicate an enfeebled and shattered intellect, and that it destroyed her capacity to know and appreciate what she was doing. Most of the witnesses of the defendant confined her want of capacity to do business to a time some years prior to the making of the will. Some of the witnesses, and I think I may say all, have given certain acts and conduct and indulgence in liquor and opium by the testatrix, upon which they have based their opinion that Mrs. Heath, at the time of the making of her will, was not competent to do business, and as a consequence, not capable of making a will. The acts spoken of are of various kinds, such as foolish remarks, broken and disconnected conversation, appearing in her nightgown on two or three or perhaps more occasions, flighty at times and stupid at times, reckless in the care and disposition of her money, in bed a great deal of her time, never free from the influence of liquor and opium, and some witnesses say she had a defective memory of her doings from day to day; she requested different ones to prepare her will for her; that some time after her will had been made, she said she had been told she had made a will, and that it was through Samuel Heath; but that it was not her will; different money transactions are detailed, as tending to show want of capacity to do business. These things, and perhaps many others, which perhaps I have not recalled, but which counsel have directed your attention to, have been submitted to you as facts and circumstances upon which you are to pass, in connection with the entire evidence in the case. You will observe that I have not gone into the details of the evidence, but have merely intended to suggest to you what I consider to be an outline of the contention of the contestant of the will, and the general character of the evidence presented. With the aid of the discussion of the evidence by the counsel, you will have had your memories refreshed and your attention called to the important matters in the evidence, in the opinion and judgment of the counsel. The office of counsel is not to make facts for you, but to aid you to a correct conclusion from the facts in evidence, and upon which you, under the law, are to rest your verdict. You have the duty resting upon you of finding the facts from the evidence, and in no other way. The law you will take from the court, and apply it to the facts as you find them, from all the evidence before you.

Now, it appears by the evidence that there were two men in whom Mrs. Heath seemed to have placed confidence in her business transactions, if consultation about some business transactions, money payments, and the collections of some of her notes committed to his care is evidence of confidence on her part in the men; these two men are Samuel Heath and John Lytle, and both occupied that attitude toward the testatrix, whatever consideration that fact is entitled to have in your judgment as affecting either the weight to be attached to their evidence or the question of undue influence exercised.

The plaintiffs -- those who defend the will -- say that Mrs Heath had testamentary capacity, and that no undue influence was used to procure the execution of the will. In support of the validity of the will, they have submitted to you testimony as to the acts, conduct, various business transactions, etc., of the testatrix. I need not recall them to you; you will remember them. And they have presented the opinion of men who, from their acquaintance with her and what they know and saw of her, thought she was capable of transacting business. The witnesses to the will, one of whom wrote it, have detailed to you the circumstances which led to...