Peery v. Peery

• Decision Date: 21 January 1895
• Parties: PEERY et al. v. PEERY et al.
• Court: Tennessee Supreme Court

29 S.W. 1

94 Tenn. 328

PEERY et al. v. PEERY et al.

Supreme Court of Tennessee.

January 21, 1895

Appeal from circuit court, Hickman county; W. L. Grigsby, Judge.

Proceeding by S.W. Peery and others against R. L. Peery and others to contest the will of Marcenus G. Peery, deceased. Judgment for contestants, and proponents appeal. Reversed.

Vertrees & Vertrees, W. P. Clark, R. L. Peery, and H. M. McAdoo, for plaintiffs.

Pitts & Meeks and T. L. Lanier, for defendants.

WILKES J.

This is a contest of the will of Marcenus G. Peery, upon an issue of devisavit vel non. The issues tendered in the circuit court were-First, that the paper writing was not the last will of M. G. Peery; and, second, that it was not such will, because it was procured to be executed by improper means and undue influence. The cause was tried before the court and a jury and a verdict and judgment rendered against the validity of the will, and proponents have appealed and assigned errors.

It is assigned as error that the court admitted certain declarations made by the testator to his son M. B. Peery some weeks before his death, and about six months after the will was made. The substance of this declaration made by the father is that he had to make the will as he did in order to have peace at home. This evidence was excepted to as hearsay and because it could not be introduced to impeach the will as made, and the objections were overruled. It has been held that the testator's declarations, after making the will are admissible to show his mental condition at the time the will was made, but not to show undue influence. If therefore, the latter had been the only issue tendered by the pleadings in this case, the evidence would have been incompetent and inadmissible. But inasmuch as, under the pleadings, the general issue of will or no will was tendered, it was admissible to introduce evidence to show the testator's mental condition at the time the will was made, and evidence was introduced to show that the testator's mind had become enfeebled by disease. The proponents were entitled, on request, to have this testimony limited by the court to the point of the testator's mental condition at the time the will was made, and to have the jury instructed that they must look to it for that purpose alone; but, in the absence of any request to so limit it, the objection was too broad, and the court was not in error in refusing to exclude the declarations and in failing to limit them. It is true the main contest in this case is over the question of undue influence, and it was so treated by counsel and court; still, the issue of mental infirmity was tendered in the pleadings, and to some extent supported by evidence, and it cannot be overlooked or ignored. Upon the general question of admitting such declarations, see Pritch. Wills, § 147, and cases cited; Beadles v. Alexander, 9 Baxt. 604, 606; Linch v. Linch, 1 Lea, 526 Maxwell v. Hill, 89 Tenn. 584, 594, 595, 15 S.W. 253. See, also, In re Hess's Will (Minn.) 31 Am. St. Rep. 690, note, 51 N.W. 614. In Beadles v. Alexander, 9 Baxt. 604, the declarations were admitted to show that the testator signed the will; in Reel v. Reel, 9 Am. Dec. 632, to show whether the testator knew the contents of the will; in Maxwell v. Hill, 89 Tenn. 595, 15 S.W. 253, to show whether the testatrix fully comprehended and approved the will as written. Linch v. Linch, 1 Lea, 526, simply approves the case of Beadles v. Alexander, 9 Baxt. 604. None of these cases are authority for the proposition that subsequent declarations are admissible where the only issue is that of undue influence.

Other errors are assigned which we need not consider in detail, in the view which we have taken of the case.

The first and most material assignment is that there is no proper and sufficient evidence to support the verdict. The rule laid down as to the force and effect of a jury's verdict is not different in cases of contested will from that laid down in other cases, and we proceed to examine the facts as tested by the usual rule. The testator died in 1888, being about 74 years of age. He had been twice married. By his first wife he had four sons, who are the contestants of the will. By his second wife he had three sons, one of whom died, and the other two, with his widow, are the chief beneficiaries under the will. His second wife had also two children by her first marriage, before she married the testator. There were thus three sets of children, two of them the children of the testator, and the other set the children of his second wife by a former husband. The testator lived happily with his last wife 28 years, but the several sets of children did not agree. The consequence was that the husband's children by his first wife and the wife's children by her first husband left the rooftree, and only the last set of children remained with their parents. This arrangement seems to have caused no disagreement between the husband and wife. The testator is shown to have been a quiet, honest, just man, of excellent character, and more than ordinary education,-a man of firm and decided views and opinions. Mrs. Peery was a woman of strong will and quick temper, and for a part of her married life was in bad health and nervous, but had recovered before the will was executed. There is no direct evidence of any disagreement between the husband and wife during the whole of their married life. The testator owned a home place, worth from $500 to $600; a one-seventh interest in a body of timber lands, containing some 1,000 acres, worth, perhaps, $1 per acre; and about $900 in good cash notes. By his will, he gave the home place to his wife for life, and the remainder to his last set of children, charging them with $400 in favor of his first children. He gave also to his first children the one-seventh interest in the timber land, and divided equally all his other property between all his children, giving nothing to his wife's children by the first marriage. The will was executed March 8, 1888, and the testator died in September, 1888, about six months thereafter.

It is not insisted that the testator did not have mental capacity sufficient to make a will, but there is proof that for some years his health had been precarious from a heart trouble and that his mind was not as active or vigorous as it had been formerly. There is no evidence that the last set of children had anything to do with making the will or causing it to be made. The contention is wholly that the undue influence was exercised by the wife in favor of this last set of children. It is not insisted that she attempted to get anything for her own first set of children, and there is no evidence tending in that direction, except the testimony of a single witness. A summary of the testimony is as follows: Mr. McLanahan testified that, about 25 years ago, he had a conversation with the testator, in which he stated that he thought as much of one of his children as of another, and was going to treat them all alike. M. B. Peery, one of the first set of children, and the principal contestant, states that he repeatedly heard Mrs. Peery say she intended to see that the older children got nothing off the place, and that she intended to see that her husband made a will, and cut the older children out. This was some 12 or 15 years before the will was made. In 1878 or 1879, J. D. Aydelotte heard Mrs. Peery say she thought the children of the last marriage ought to have the property, as they had remained with and worked for the old folks, while the first set had gone off and worked for themselves, but he did not hear her say anything about a will. About the year 1884, Ras Hill heard Mr. Peery say that his wife had been after him to make a will and give her children by her first husband a share with the others, and he had promised her to do so, but that he did not intend to make a will if he died in his right mind, but intended to treat all his children alike. Mrs. Mary Hutchison testified that Mrs. Peery told her that she was going to see that the property was willed to the younger children, as the older ones were off working for themselves. Mrs. Burchard testified that she heard Mrs. Peery say it looked to her like the younger children ought to have the property, as they had stayed at home, while the older children had gone off working for themselves. Mrs. Cave Peery says that, about 23 years ago, she heard Mrs. Peery say that she intended to see to it that Mr. Peery made a will. Frank Hunn testifies that, about 1870, Mr. Peery, at his wife's request, stopped a plow, that she might have a horse to make a visit. She was then in bad health. He heard her say that she intended to have him make a will, and leave the children of the first marriage out. Mrs. Lindsley lived with Mr. Peery about 1882, and heard Mrs. Peery say she thought the land ought to be willed to the younger children. J. S. Prince states that he heard the testator say he did not intend to make a will; that the law made a good enough will, and he intended to treat his children all alike. This was some one to three years before his death. Mrs. Gracey Whiteside testified that, a short time before the will was made, she heard Mrs. Peery say she thought her husband ought to make a will, and give the home place to the younger children, because they had stayed at...