Rice v. Rice

• Decision Date: 25 April 1883
• Citation: 50 Mich. 448,15 N.W. 545
• Court: Michigan Supreme Court
• Parties: RICE v. RICE and others.

15 N.W. 545

50 Mich. 448

RICE v. RICE and others.

Supreme Court of Michigan

April 25, 1883

A probate order adjudging a man "incompetent to have the care of his property," and appointing a guardian for him, is not prima facie evidence that he lacks testamentary capacity; nor does it become so by the recital in the order that he is insane, if the petition for guardianship does not put his sanity in issue. But such an order may be put in evidence as bearing on his condition.

One who has capacity to make a contract is competent to make a will.

A non-professional witness, in giving his opinion as to a person's sanity, can speak only from personal observation; but his opinion is not admissible in evidence if he does not, as far as possible, explain to the jury the grounds for it.

In examining a non-professional witness as to a person's capacity to execute a will, it seems to be improper to put a hypothetical question containing a confusing number of elements as to the various items of his property and the members of his family, and then require the witness to arrive at a result by comparing the testator's appearance and conversation, as he had described it to the jury, with what the witness had known of him formerly.

Delusions as to "greenbacks," or to the effect that one is holding or running for office, or that his wife courted him or had maltreated him after marriage, do not necessarily render a man incompetent to make a will if they do not influence its provisions.

Wills are not to be set aside merely because their makers were weak or sometimes foolish or lacked the average mental capacity of their neighbors, or did not dispose of their property as others, who knew nothing of their reasons, might think they ought to have done.

The preparation of a bill of exceptions by simply tacking a heading and a conclusion to the stenographer's notes of the testimony is rebuked.

Where a bill of exceptions was three times as large as it need have been to present all the questions involved and appellant prevailed, he was allowed, in taxing costs, to include only one-third of the expense of the record.

A nonprofessional witness, in giving his opinion as to a testator's sanity, can speak only from personal observation; but his opinion is not admissible in evidence if he does not, as far as possible, explain to the jury the grounds for it.

Hawes & Shakespeare, for plaintiff.

H.C. Briggs and O.W. Bowers, for defendants.

COOLEY J.

The writ of error in this case brings before us the proceedings on the probate of the will of William H. Rice, late of the county of Kalamazoo, who died December 3, 1880. Plaintiff in error is his widow and was named sole executrix in the will. Defendants are his heirs at law. The will was admitted to probate in the probate court, but denied in the circuit court. Two objections were made to it in the pleadings First, that Rice was insane when he executed it; and, second that it was obtained from him by undue influence. This second objection was abandoned on the trial.

A copy of the will is given in the margin, ^[*] and its provisions are seen to be simple and not obviously unreasonable. The evidence disclosed the fact, however, that on the day of its execution proceedings were pending in the probate court for the appointment of a guardian for Rice, and the appointment was actually ordered a few hours after the will had been signed and attested. As these proceedings were made important and perhaps controlling by the rulings of the circuit judge, it is necessary to understand exactly what they were.

The petition for the appointment of a guardian was made by two of the children of Rice, and by a third person, whose relations to him are not stated. The petition states that Rice is possessed of real and personal estate, estimated at $21,500, and that he is, as petitioners believe, "mentally incompetent to have the charge and management of his property," and that, as they are informed and believe, he "is spending and has expended money within the last few days foolishly and unnecessarily, and for articles and property which he did not need, and paid and agreed to pay more than the same was worth." Rice was notified to answer, and appeared and procured an adjournment, but on the adjourned day, instead of contesting the application, went to the office of Mr. Shakespeare, an attorney, and had his will prepared and executed, and then went home. The petitioners appeared before the probate judge, and the order appointing a guardian was made, the judge reciting therein that it appeared to him that Rice was "insane and incompetent to have the care of his property." Rice was at this time 68 years of age, and had been married to the plaintiff about three years and six months.

The defendants in this case contended that the order appointing a guardian was prima facie evidence of the incapacity of Rice to make a will, and that the plaintiff must overthrow this prima facie case by affirmative evidence. The circuit judge assented to this view, and instructed the jury as follows "This determination of the probate court is on the first view, or prima facie, evidence of the testator's insanity and incapacity to make a will, and shifts the burden of proof to the proponents, and renders it necessary for them to establish before you by a preponderence of the evidence that the deceased was mentally competent to make a will at the time of the execution of the instrument here proposed for probate." If the question of testamentary capacity had been involved in the application for the appointment of a guardian, and had been determined by the appointment, the circuit judge would have been correct in his ruling. But in fact it was in no way involved. The substantial averment in the petition was that Rice was mentally incompetent to have the charge and management of his property, and was wasting it. Insanity was not alleged or put in issue, and the recital of the existence of insanity in the order which was made was very likely an inadvertence. But, whether inadvertent or intentional, it went beyond anything to which Rice had been called upon to answer, and was of no force. The order judicially determined that Rice had become unfit to manage his property, and it determined nothing more. But this is not inconsistent with testamentary capacity; the state of being unfit to manage property is not even inconsistent with capacity to make contracts; and the principal reason for the appointment of a guardian often is that a party possessing the capacity and power to contract is employing it foolishly. But if a party has capacity to make a contract, and to bargain in respect to its terms with another who may be supposed to have an interest in getting the better of him, he must certainly have authority to execute, as his own voluntary and spontaneous act, a testamentary disposition of his property. Testamentary capacity is not, therefore,...