Porter v. Throop
| Decision Date | 05 January 1882 |
| Court | Michigan Supreme Court |
| Parties | PORTER v. THROOP. |
An opening to the jury may be so unfair in its statement of irrelevant facts, and so well calculated to prejudice the jury improperly, as to justify setting aside a verdict obtained by the party making it. But an appellate court will not reverse a judgment for an unfair opening except in a very plain case.
A will was contested on the ground of want of mental competency and for undue influence. The provisions of the will were simple and the bequests few. An old acquaintance of the decedent was asked as a witness for contestants the following question "Having reference to the extent of her [decedent's] property, I ask you whether at the time of making this will in your opinion decedent had sufficient mental capacity to take into consideration the state of her property, the amount of it, and the relation of her children to her, so as to be competent to make this will?" Also, "From what you know of decedent, from your acquaintance with her from the time you first knew her up to 1875, what could you say about her mental ability to comprehend and understand a disposition of her property, and her ability to make her will to the extent of this paper here?" (the will.)
Held that both questions were competent.
As bearing upon the issue of undue influence in obtaining a will, it is competent to show that a son who was the principal legatee had the whole charge of the decedent's business for several years preceding her decease, had been her confidential adviser and assistant, that he had lived with her; that the other children of the decedent were subject to suspicions in her mind; that the son for these reasons had every opportunity for undue influence; that a very large share of her income was used by him in his own interest; that decedent, on some occasions, spoke of her income being eaten up with interest, insurance and taxes; and that on one occasion at least a friend who had called to see the mother at her request, was by the son denied admission.
The following facts were also admissible on the same issue: That decedent and the son were executors of the will of her husband, who died in her life-time, by the terms of which she had the income for her life, and then the property was to be divided among the children; that the executors never filed an inventory or an account; that after 15 years a daughter filed in the probate court a petition for the removal of the executors; and that the mother and son, according to his evidence, agreed between themselves that this was an attempt at "blackmail." If the mother so thought, the inference would be forcible that the suggestion came from the son himself, who would thus be making his sister's attempt to obtain a remedy for a wrong chargeable to himself the occasion for poisoning his mother's mind against her.
Error to Wayne.
E.Y. Swift, Ashley Pond, and C.I. Walker, for plaintiff in error.
F.G Russell, Wilkinson, Post & Wilkinson, and G.V.N. Lothrop, for defendants in error.
This case involves the validity of an instrument purporting to be the last will and testament of Eliza G. Porter, deceased which the circuit court for the county of Wayne, on appeal from the probate court of that county, has refused to admit to probate. Eliza G. Porter was the widow of George F. Porter of Detroit, who died in August, 1862, leaving children surviving him, Arthur the proponent, who had previously been married, George, who died several years afterwards being still unmarried, Gove, who married in 1866 and died six years or so afterwards leaving a widow and child who still survive, and Mary who was married to Mr. Throop in 1866 and is still living. George F. Porter left a last will, which bears date April 28, 1858, and was duly probated. By this will Mrs. Porter and Arthur were made executors without bond, and the whole income of the estate was given to the widow during her life-time, but subject to the support and education of the "younger children." On the decease of Mrs. Porter the property was to be equally divided between the surviving children, deducting from the share of Arthur a sum which had been previously advanced to him, and which appears to have been about $10,000, and also his indebtedness to his father on general account, and providing from the estate for the education and support of the younger children until they should respectively arrive at the age of 21 years before such distribution. The indebtedness of Arthur, not including the sum advanced to him, is stated by him at $20,000 or thereabouts exclusive of interest.
The executors of this will never filed any inventory, but the estate appears to have exceeded $150,000 in value, the major part of it being in available corporate bonds and stocks. Arthur took exclusive charge of the estate, converted securities into cash and made improvements upon real estate which resulted in a steady and considerable income. This income is estimated by him to have averaged $7,000 a year. It was collected and received by him, and the major part of it used for his own benefit. When this case was tried, he estimated that he was indebted to his mother in the sum of $8,000 on income account. After the marriage of Gove and Mary, the former entered into business copartnership with Mary's husband, which was continued for several years, during which time the mother assisted them to the extent of $30,000. They failed, however, in 1870, and of the sum advanced to them only about one-third was paid by their assignee. From time to time Mrs. Porter let Mary have some money; the whole amount aggregating $3,000; and she gave small sums to the widow and child of Gove, but they were insignificant. Arthur went to live in the house with his mother in 1875, and in October of that year the will now in controversy was executed. A copy of this will is given in the margin. [*] Its probate was contested on the grounds--First, of want of testamentary capacity; and, second, for undue influence employed to procure it by the principal legatee. It is in evidence and not disputed by anybody that Mrs. Porter had imbibed the suspicion that both Gove and Mary had been married with mercenary motives; and though after Gove's death she had his widow with her part of the time, it is evident she was not very cordial towards her. Arthur seems to have had her entire confidence, and managed the estate of her husband and also her own property at discretion. The fact that Mrs. Porter had made a will was not made known to Mary or to Mrs. Gove Porter, but the free use Arthur was allowed to make of his mother's means created ill-feeling.
On the first of June, 1877, Mary, who was then at Orchard Lake, addressed a letter to her mother, stating that her husband was out of employment with nothing to live upon; that the hard times had swamped them; and expressing the opinion that she had "as good a right to be supported until things looked brighter as [her] amiable able-bodied brother that went home to his mother to be supported; and has lived on her for two years." She stated that she had written to Arthur twice and received no reply, and she claimed to be entitled to help from her father's estate and thought it was her mother's duty to see that it was given. To this letter a reply was written by Arthur, which is given below. [*]
Yours truly, ARTHUR.
I have read the above letter and approve the same ELIZA G. PORTER.
On receiving the reply Mary presented a petition to the probate court setting forth that the executors on her father's estate had received and disbursed large sums of money belonging thereto, and sold real estate; that Arthur had acted as managing director and done principally all that had been done; that he had never made any report, and as petitioner fully believed had wrongfully and unlawfully appropriated a large portion of the estate; and she prayed that the management of the estate be taken from the hands of said executors and committed to administrators with the will annexed. The presentation of this petition seems to have been treated by Arthur as an attempt at "blackmail," and he says of himself and his mother "We agreed upon that point." If that was its purpose, it did not succeed. Neither did it result in eliciting from the executors any report of their doings as such. Mutual friends seem to have induced the dropping of the proceeding. Mary visited her mother frequently afterwards, but at one time in the year 1878 when she was staying at her mother's for some considerable time, Arthur went to Mr. Joy, who was a mutual friend, and informed him that his mother wanted Mary to go away; that she was determined to stay, and he requested Mr. Joy to go up there and see if he could not induce Mary to leave the house. Mr. Joy went as requested, and induced Mary to go. Whether she had been previously requested to leave does not appear. Mrs. Porter had been sick, and Dr. Farrand, who was her physician, was of the opinion that at this time she was laboring under the delusion that Mary was some other person. Mrs. Porter died in the winter of 1879-80. For 10 years previous to her death she had lived a very quiet and retired life, seeing but few friends, and apparently making Arthur almost her sole confident. Dr. Farrand, who was an old family friend, was in the practice of calling upon her at least once a week, but he did not interfere in her business affairs; though she frequently spoke to him of her business in a general way. This statement will be sufficient for an understanding of such legal questions as are deemed important.
1. In opening to the jury the case for the contestant, counsel indulged in the following language: ...
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Porter v. Throop
...47 Mich. 31311 N.W. 174PORTERv.THROOP.Supreme Court of Michigan.Filed January 5, An opening to the jury may be so unfair in its statement of irrelevant facts, and so well calculated to prejudice the jury improperly, as to justify setting aside a verdict obtained by the party making it. But ......