Prentis v. Bates

• Decision Date: 21 December 1891
• Citation: 88 Mich. 567,50 N.W. 637
• Court: Michigan Supreme Court
• Parties: PRENTIS et al. v. BATES et al.

50 N.W. 637

88 Mich. 567

PRENTIS et al. v. BATES et al.

Supreme Court of Michigan

December 21, 1891

Error to circuit court, Wayne county; GEORGE S. HOSMER, Judge.

The will of Mrs. Adeline King, which made Browse T. Prentis and others legatees, was admitted to probate. George W. Bates and others, to contest the will on the ground of undue influence and testamentary incapacity, appealed to the circuit court where a trial by a jury resulted in a judgment against the will, and proponents appeal. Reversed and remanded.

Geo. H. Prentis, (Alfred Russell and John Atkinson, of counsel,) for appellants.

Griffin & Warner, (Otto Kirchner and Levi T. Griffin, of counsel,) for appellees.

GRANT, J.

Mrs Adeline King died in Detroit, November 9, 1886. She left a will, dated July 31st of the same year, by which she devised to Rachel L. Doty, her husband's sister, her homestead in Detroit, her wearing apparel, jewelry, household furniture pictures, and silver-ware; to John H. Prentis, a son of Browse T. Prentis, a gold watch and chain; to Matthew Huss $500; and to Cora Doty, $50. All the residue of her property she directed to be sold, and divided into seven parts, and devised two of said parts to Browse T. Prentis, and the other five to other legatees, five in number, who were relatives of her husband. The will was admitted to probate by the probate court without contest, and on the last day provided by the statute contestants appealed to the circuit court, where a trial by jury resulted in a verdict against its validity. Mrs. King was about 67 years old at the date of the will. Her husband had died shortly before. She had no children. The contestants were her heirs at law, being hernephews and nieces. An enmity of long standing existed between her and her brother and sisters and their families, the reason of which it is unnecessary to state. This fact is of importance in view of the opening statement of counsel for contestants to the jury. Mrs. King was under no more obligation to these relatives than she was to the legatees named in her will. The will was contested upon two grounds,-undue influence and incompetency to make it. The burden of proof in both of these particulars was upon the contestants, and it was incumbent upon them to produce positive proof in support of either one or both of these propositions to entitle them to a verdict. After permitting arguments to the jury for six days, the circuit court took away from the consideration of the jury the question of undue influence, holding that the contestants had made no case upon this point. Several errors are alleged, which will now be disposed of in their order

1. In his opening statement to the jury counsel for contestants, after referring to the provisions of the will, said: "Now, the law says, gentlemen of the jury, that when a will-an unnatural will, as this is-gives property away from kindred, the law draws an inference that that will was procured by fraud." He further, in the same connection, argued to them that in this case the burden of proof was upon the proponents to show both lack of undue influence on the part of the legatees, and the competency of the testatrix. Counsel furthermore did not confine himself in his opening to a brief statement of the facts he proposed to prove, but argued questions of law and fact. He also stated facts which he proposed to prove, but which were not proven, upon the trial. Counsel stated that Mrs. King was at one time taken to a sanitarium, and then used the following language: "Dr. Gallagher, a physician there, wanted to give her some pills, and he brought them to her. She said they were flies. She says, 'They are not pills. I shan't take them.' 'Why not?' 'They are flies.' 'Why, Mrs. King, look at them. Those are not flies. Examine them. Here they are; six pills; round and smooth and nice.' 'No, sir; you can't fool me; they are flies.' Now, the doctor wanted to know just how far this woman would carry this delusion,-whether it was put on or whether it was genuine,-and so he went out and got six flies, and killed them, and he put the pills on the table, and said, 'Mrs. King, there are the flies,' and he put on the table the six flies, and said, 'Mrs. King, there are the pills; now take your choice.' She says, 'I will take the pills,' and she gathered up the six dead flies, and ate them." There was no foundation in the proofs adduced for this extravagant statement. Counsel, in their opening to the jury, should be limited to a brief and concise statement of the facts which they propose to prove. It is likewise the duty of counsel to inform himself as to these facts, and to satisfy himself of his right to prove them. The opening is not the place for argument. The opening in this case was such as could scarcely fail to create a prejudice in the jury, and prevent a fair and impartial trial. As applicable to this branch of the case, I quote with approval the language in Porter v. Throop, 47 Mich. 320, 11 N.W. 174, Mr. Justice COOLEY speaking for the court: "We should impeach the judgment and legal knowledge of counsel if we were to assume that in making this opening he was putting before the jury those facts only which on reflection he had satisfied himself he had a right to prove." Other language might be quoted from this opening statement fully as objectionable as that above given, but the latter is sufficient to illustrate its character, and to show the danger of permitting counsel to argue their cases to the jury upon a mistaken view of the law, and their own statement of the facts without proof. Especially is it the duty of courts to exclude from the jury the unjustifiable statements of counsel, as well as immaterial and incompetent evidence, which might prejudice a jury in a case involving the validity of a will, when the soundness of the testatrix's mind was not questioned during her life-time by any of her relatives, and she was left in the entire control and management of her large property until her death. Pierce v. Pierce, 38 Mich. 420. For this error alone the verdictin this case should be set aside.

2. It is urged by the proponents that error was committed in permitting counsel for contestants to argue to the jury the question of undue influence. They argue that this ruling should have been made at the close of contestants' testimony, and that it is a fair presumption that the jury were prejudiced by the arguments of counsel. It is stated by proponents in their brief that no reply was permitted by them to the jury upon this branch of the case. If this were so, the record fails to show it. The record contains no indication that the circuit judge ruled upon this until after the arguments of counsel for both sides. It is, of course, important that such questions be eliminated from the consideration of the jury as soon as possible. It is the better practice to have such questions discussed in the absence of the jury, where it is claimed they are questions of law and not of fact. Then there exists no danger of prejudice. In the case of Fraser v. Jennison, 42 Mich. 214, 3 N.W. 882, the question of undue influence was eliminated from the case upon the opening statement of counsel for contestants. But it is quite possible, even where the question is first argued before the court alone, that the judge may not become convinced of his duty in the matter until after the arguments to the jury. In such case we cannot presume that the jury will not follow the instructions of the court, and leave the question out of their consideration. The result of this contention would be that a new trial must be ordered in every case where the court has taken from the consideration of the jury any question which has been argued before them. I find no authority for such a rule, nor do I think it founded in reason.

3. A large mass of immaterial and incompetent evidence was admitted. It would be a long and tedious task to select and point it out. It is unnecessary to do so, for a few instances will illustrate it all, and serve as a guide upon a second trial of the cause. A large amount of this testimony came from those who were employed in building a house for her in 1885. An instance of this is from one Edmund Austin, who testified as follows: "I am a plasterer. I knew deceased in 1883. Did plastering on the job on Wood ward-Avenue house under Steven and Decker contract. Was there, off and on, about a month. I have no doubt I saw Mrs. King five or six times. Talked with her mainly about the plastering. She seemed to take an interest in it, about as a wife would about her husband's interest. Also talked with her about plastering in old times. She was able to talk a long time without stopping. She had more to say than I did. Don't think I could remember definitely what she said. One thing I remember: I talked with Mr. and Mrs. King both about pay, and I remember she said she was gratified that Mr. King had paid me. If I remember Mrs. King did not dress up much. I did not know her prior to that time. I thought her conversation was quite erratic,-rather eccentric, curious,-that is the impression, mind you. I cannot remember distinctly any particular conversation, but that was the impression I gathered of her. Well, a curious, erratic sort of a woman." Witness was then shown the will, and asked his opinion upon her mental capacity to make it, and he replied that he thought it "would he a very difficult matter for her to master it." One George Hawley, a plasterer, did some work for her in her house in 1877 or 1878. Again did like work for her in 1885. "Saw a change between 1877 and 1885. In 1885 she was fond of talking on different subjects,-rambling, disconnected conversation, different altogether from what she was when I first knew her. She was...