Paradis' Will, In re

• Citation: 87 A.2d 512
• Parties: In re PARADIS' WILL.
• Decision Date: 31 March 1952
• Court: Supreme Judicial Court of Maine (US)

Page 512

87 A.2d 512

147 Me. 347

In re PARADIS' WILL.

Supreme Judicial Court of Maine.

March 31, 1952.

McLean, Southard & Hunt, Augusta, for appellants.

Goodspeed & Goodspeed, Augusta, for appellee.

Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY and WILLIAMSON, JJ.

MURCHIE, Chief Justice.

The appellants in this case are Antonio Paradis and Jeanne Theriault, two of four children disinherited by a will leaving all the property of their father to his wife, if she survived him, and to a half-brother of theirs, if she did not. They seek a review of a decree of the Supreme Court of Probate, and the findings therein, made by the Justice who heard their appeal from the Probate Court, without the intervention of a jury. Their exceptions allege error in the decree and in rulings on evidence. The Justice denied their appeal, allowed the contested instrument as the last will and testament of Narcisse Paradis, and made specific findings that he was of sound mind when it was executed, and was not subjected to duress or undue influence in the making of it.

The testator, who was married twice, died December 24, 1948, survived by a widow, his second wife, and five children, two borne by her and three by the first wife. His will, executed February 28, 1948, recites expressly that he is not unmindful of the four disinherited children, naming all of them. The wife made a will at the same time, leaving all her property to him, if he survived her, and if not, to her son Joseph, Joseph was the contingent beneficiary under both wills.

The record presented does not contain all the testimony taken out in the Supreme Court of Probate. It presents the testimony of two of the subscribing witnesses to the will, and a stipulation that the third 'need not be personally called', to lay the foundation for the first exception, and that of two witnesses called by the appellants. The Bill of Exceptions quotes some evidence in addition, part of which relates to the second exception and part to the third, in connection with which it carries the full testimony of two additional witnesses called by the appellants. We shall take the exceptions up in order.

The First Exception.

The stipulation aforesaid recites that the witness whose personal appearance was waived by it would testify, if present, that she was a stenographer in the office of the scrivener of the will at the time it was executed, and was one of the witnesses thereto, that the testator was a stranger to her, and said no more in her presence than to answer 'Yes' when the will, as drafted, was presented to him, and he was asked if it was his last will and if he desired that it be witnessed. She would testify, also, it declares, that the testator, his wife, and the subscribing witnesses were together in the scrivener's office while all the signatures appearing on the document were affixed thereto, that the testator signed it in the presence of the witnesses, and that they signed it in his presence, and in the presence of the others. The case does not disclose whether the same witnesses subscribed the will of the wife.

The testimony of the scrivener, who was one of the witnesses to the will, relates the circumstances attendant upon the preparation and execution of it, and his long acquaintance with the testator, and carries his declaration of opinion that the testator was 'sane' at the time. That of the third witness to the will (second in order of signing) covers less than three pages in the record. She, also, was a stenographer in the office of the scrivener. Her evidence confirms the recitals of the stipulation, and the testimony of the scrivener, concerning the manner in which the will was executed. She was not asked to give her opinion whether the testator was of sound mind, either by the proponents or the appellants, but admitted, in effect, on cross-examination, that she had declared in the Probate Court, at the first hearing on the will, that she did not hear the testator say enough to permit her to form any opinion as to his mental capacity.

This exception is grounded in the fact that the stipulation, and the evidence of the third witness, particularly as given, according to her admission, in the Probate Court, establish conclusively that two of the three subscribing witnesses to the will gave no thought when signing it to whether the testator was 'of sound mind', to use the words of our statute of wills, R.S.1944, Chap. 155, Sec. 1. The exception is a dual one, alleging errors (1) in the refusal of appellants' motion that the will be disallowed made at the close of propoenents' direct case, and (2) in the decision carried in the decree, that the requirements of the statute were satisfied, despite omission of the witnesses to form an opinion that the testator possessed a 'sound mind'.

The claim of the appellants cannot be said to be entirely without foundation in precedent. In New York one ancient case, at least, may be said to support it. It was so construed, in any event, by Judge Redfield, and eminent writer on the law of wills. The case, Scribner v. Crane, 2 Paige Ch. 147, 21 Am.Dec. 81, was decided in 1830. It involved an instrument purporting to be the will of a very feeble lady, nearly ninety years of age, who, while lying on her bed helpless, had placed her mark on a document drawn by her physician, with a hand guided by him. He subscribed it thereafter, as a witness, as did two other persons, who testified, when it was offered for probate, that they had 'relied partially, if not entirely, on the declarations' of the physician as to the capacity of the testatrix. The will was disallowed because neither of these two witnesses 'had sufficient knowledge on the subject to give legal evidence of the due execution of the will.' Judge Redfield included this case in his collection of leading cases on the law of wills, American Cases on Wills, 137, attesting to the distinction of the author of the opinion, Chancellor Walworth, and subscribing to the desirability of a more stringent rule about the proper function of witnesses to wills than that generally recognized. It is his comment, thereafter, however, which bears directly on the present case. This reads as follows: 'We do not expect to be able to restore the office of the attestation of the subscribing witnesses to a will to its former healthy state. The law, upon all questions, must conform in some degree to existing usage and custom, however unwise we may deem it. And the fact that most men execute their wills in the most informal manner, away from their dwellings, in the offices of attorneys, calling the first persons they can find to witness them, must in a great degree deprive the attestation of all judicial character. Formerly, wills were prepared with great care, by giving formal instructions to solicitors, and designating the persons who were to act as witnesses, some near friends more commonly, and always such as were well acquainted with the testator and his family. The actual execution of one's will under such circumstances, became a very solemn act, somewhat in the nature of a religious rite, like a baptism or burial. It was then very proper to regard the formal attestation by the witnesses as a sort of judicial authentication, much like probate in common form. At that time a witness who attested the execution of a will, and then testified to the incompetency of the testator, was regarded much in the light of a perjured person. But now this is every day's occurrence, without exciting any surprise or rebuke. We can not but feel that the old practice was the better one; but we do not well see hwo it is to be restored, except by statute, and statutes are not so likely to be enacted in order to revive obsolete usages as to inaugurate new ones.'

The appellants do not cite Scribner v. Crane, supra, but they do cite an Annotation in 35 A.L.R., noted hereafter, which identifies it, several decisions of this Court, some Massachusetts cases and one from Illinois, and quote excerpts from several of them to sustain their position that witnesses to wills must form opinions about the soundness of mind, or otherwise, of those executing them. Gerrish v. Nason, 22 Me. 438, 39 Am.Dec. 589; McKenn v. Frost, 46 Me. 239; Robinson v. Adams, 62 Me. 369, 16 Am.Rep. 473; In re Trinitarian Congregational Church and Society of Castine, Appellant, 91 Me. 416, 40 A. 325; In re Wells, Appellant, 96 Me. 161, 51 A. 868; In re Martin, Appellant, 133 Me. 422, 179 A. 655; Chase v. Lincoln, 3 Mass. 236; Brooks v. Barrett, 7 Pick., Mass., 94; Hastings v. Rider, 99 Mass. 622; Nunn v. Ehlert, 218 Mass. 471, 106 N.E. 163, L.R.A.1915B, 87; and Allison v. Allison, 46 Ill. 61, 92 Am.Dec. 237.

The quoted excerpts have a tendency, without doubt, to confirm the claim of the appellants that the purpose underlying the requirement that wills be executed in the presence of credible witnesses is to have reliable evidence of the execution of them, and provide security against fraud. Many of the cases suggest the desirability of honest and unbiased opinions from such a source, concerning the soundeness of the mind of a testator. None, however, except Allison v. Allison, supra, rejected a will because one or more of the witnesses formed no judgment oon that question at the time it was executed, and that decision is explained by the court's declaration therein that the Illinois statute required 'before a will can be admitted to probate, that the subscribing witnesses shall swear they believe the testator to have been of sound mind and memory'.

It is not difficult to find statements in judicial opinions which, without reference to their context or the issues under consideration, lend color of support to implied principles of law the cases cannot be considered as having declared. In Robinson v. Adams, supra, for example, which the appellants cite as declaring that sanity on the part of the testator is one of the things a witness...