Patton v. Allison

• Decision Date: 31 December 1846
• Citation: 26 Tenn. 320
• Parties: PATTON, Executor, v. ALLISON et al.
• Court: Tennessee Supreme Court

26 Tenn. 320

PATTON, Executor,

v.ALLISON et al.

Supreme Court of Tennessee.

December Term, 1846.

William Patton died in Williamson county, having first made a will, in which he bequeathed his land and slaves to his two brothers, John and Samuel. These were of great value. He made donations of $5 to each of his other living brothers and sisters, and the same amount to the representatives of each of his deceased brothers and sisters. Samuel and John were constituted executors.

This will was offered for probate by Samuel Patton, in the county court of Williamson county, where John Patton appeared and renounced the execution thereof. William Allison, William Demumbrane, Lucy Patton, and others, appeared and contested the validity of the will. An order was made certifying this fact to the circuit court, that the validity of the will might be tried, and Samuel Patton was appointed administrator pendente lite.

The defendants moved that the names of Demumbrane and wife be stricken from the record as parties defendant; this was objected to by the plaintiff, but the motion was overruled, and their names stricken off.

The case came on for trial at the November term of the circuit court, 1846, Maney, judge, presiding.

The defendants, in the course of the trial, offered Demumbrane and wife as witnesses on behalf of the defendants, and a deed, duly acknowledged by them, assigning their interest in the real and personal estate of William Patton, deceased, to their children, was presented, and their testimony was objected to, and admitted.

There was proof that the will was in the handwriting of Samuel Patton, the executor and legatee, and signed by the testator. There was much proof in favor of the capacity of the testator to make a will, and some proof that he intended to make the disposition of his property which he did in the will. There was much proof of the incompetency of the testator to make a valid will, arising from the effects of habits of intoxication and chronic disease, which it is useless to set forth here.

The judge charged the jury, among other things not excepted to: “That if William Patton executed the paper writing before them as his last will and testament, in the presence of two subscribing witnesses, and if those witnesses attested the paper in his presence, and at his request, and in the presence of each other, then the forms of the law had been complied with; and if, in addition, it was his free and voluntary act, and he was at the time of sound mind and disposing memory, then it was his will, and the plaintiff was entitled to their verdict. That an idiot could not make a will, nor could a lunatic, except in a lucid interval; neither could he whose mind was worn down by disease, intemperance, or other cause, as to be incapable of a rational act. He must be of sound mind; the mind must be entire, complete, not unhinged, not defiicient in a material part, though it may be weak. A watch may be of very coarse construction, yet, if it be entire, it may answer in some degree the purpose for which it is intended; while another of the finest mechanism, but wanting a material wheel or spring, is incomplete and incapable of marking the lapse of time. To be of sound mind does not imply extraordinary intellect. On the contrary, a man justly characterized as a dull pate, or dunce, may be of sound mind, and competent to make a will; nor is it necessary in all cases that the party should possess all the intellect he may have enjoyed at any former period. Many men have more understanding than barely enough to make a will, and therefore may have enough left, though reduced by sickness, old age, or other causes, to an inferior degree of mental capacity.

The quantum of sense necessary to make a will cannot be accurately described. The jury must necessarily fix in their own minds a standard. The party must be rational and capable of performing a rational act; he must have disposing memory, so as to comprehend his estate, and appreciate the claims of those dependent on him. In other words, he must be able to dispose of his estate with sense and judgment. He may possess disposing memory, however, without being able to enumerate exery article of his property. It is sufficient if he be able to take a general view of the whole. Nor is it necessary to the validity of the will that it be consistent with natural justice or moral duty. It may be good, though in violation of both. The question is not whether it be such as we would have made under similar circumstances, but whether it is a rational act rationally performed. If the party have mind enough to know and understand the business in which he is engaged, it is sufficient. A will being the expression of the testator's wishes as to the disposition of his estate after his death, it must of course be his voluntary act. He must not be under undue influence; in other words, he must not be under the dominion of another person, so far as to prevent the free exercise of his will. This may be from fear of personal violence; and it may be also by entreaties and importunities in sickness, when the sufferer is unable to bear them, and yields unwillingly for the sake of peace. But honest entreaties and intercessions to one not distressed by them are allowable, and influence honorably acquired by acts of kindness and affection may be exerted.

To vitiate a will good in other respects it must be shown that influence was exerted, and such influence as amounted to force or fear. Fraud, as it vitiates every transaction into which it enters, of course avoids a will. A paper imposed on a person as his will materially different from his wishes is void, at least to the extent of the deception.

If the draftsman be a legatee, it is circumstance against the will, of greater or less weight, according to all the facts of the case; such, for instance, as the amount of the benefit, its proportion to the whole estate, and the claims of the party upon the bounty of the deceased. But, if the contents of the will be known to the testator, and approved by him, it is of course of no consequence that the draftsman be a legatee. It is incumbent on the propounders, however, in such case to show that the contents were known to the testator. This he may do by proving that the will was read by or to the testator, or that it was drawn in pursuance of instructions given by him, or by any other proof which may be satisfactory to the jury. Where there is no other evidence of knowledge of the contents than instructions, it is necessary that the evidence should be such as induce belief that the testator was of sound mind when he gave the instructions. If the jury should believe that instructions were given, and that the will was drawn in pursuance of them, it will be still for them to determine whether the contents were known to the deceased. When a person writes a will in his own favor, “such conduct creates a presumption against the act, and renders necessary very clear proof of volition and capacity, as well as of a knowledge by the testator of the instrument; but the law does not determine that the act is absolutely void, even though the person making the will in his own favor is the agent and attorney of the testator, but the suspicion is thereby, for obvious reasons, greatly increased.” The court here read to the jury, at the request of counsel, from 7 Ecc. 93, as follows:

I never understood the doctrine of this court to go beyond this, namely, that it is a circumstance which should awaken the vigilance and jealousy of the court to watch and see whether, by some means or other, a knowledge of the contents was brought home to the deceased, or it was shown that it was the intention of the deceased to make such a disposition of his property which the court would accept as sufficient proof, notwithstanding that the drawer of the will took a considerable benefit under it. I do not apprehend that there is any technical rule which requires proof that a will has been read by or to the deceased, or that it was prepared from instructions given by him. Even in Parke v. Ollat, it was not laid down that such proof was necessary; but if the court was satisfied that the instrument did contain the real intention of the testator, although there was no proof of reading, and no proof of instruction, it would grant probate of it.”

The court here told the jury that, although there might be other means of showing a knowledge of the contents besides reading over of instructions, it was necessary at all events, where the writer is materially benefited by the will, that they should believe from the evidence that its contents were known to the testator, and approved by him; that mere previous declarations in conformity with the will would not be sufficient for that purpose. The court further told the jury that they were the exclusive judges of all the facts of the case, and that they were to decide from all the evidence whether the paper propounded was or was not the last will and testament of William Patton.”

The jury rendered a verdict against the validity of the will. A motion for a new trial was made and overruled, and judgment rendered. The plaintiff appealed.

Fogg, for plaintiffs.

Mr. and Mrs. Demumbrane are incompetent under act of 1821.

A proceeding in a court of probate, seeking the proof and allowance of a will, is a “suit at law.” Haven v. Hilliard, 23 Pick. 19. The judge here says: “That it is a suit by which all titles to real estate by devise are to be settled; it may be tried by jury or otherwise, according to circumstances; it proceeds on the legal rules of evidence, and must be conducted and determined upon legal principles. We can entertain no doubt that it was intended to extend to all judicial controversies to which legal rights are drawn in question.”

If not excluded by the statute, Mrs. Demumbrane is incompetent because she is directly interested in the event of the suit, and has not released,...