Rodney v. George Burton of J. H.

• Decision Date: 11 November 1912
• Citation: 27 Del. 171,86 A. 826
• Court: Delaware Superior Court
• Parties: ANN S. RODNEY v. GEORGE BURTON of J. H., Executor, et al

86 A. 826

27 Del. 171

ANN S. RODNEY v. GEORGE BURTON of J. H., Executor, et al

Superior Court of Delaware, Kent County

November 11, 1912

Superior Court, Kent County, October Term, 1912.

Issue from the Register of Wills devissavit vel non by consent of parties. The issue presented, to be tried by a jury in the Superior Court, and the contentions of the parties appear in the charge of the court.

Announcement of rule with respect to taxing fees for witnesses subpoenaed but not called; also for expenses and counsel fees for contestants of the will.

Decree of the register is reversed and set aside.

Arley B. Magee and James M. Satterfield for the plaintiff.

Henry Ridgely, William M. Hope and George M. Jones for the defendants.

PENNEWILL C. J., and CONRAD and WOOLLEY, J. J., sitting.

OPINION

PENNEWILL, C. J., charging the jury:

Gentlemen of the jury:--In this case the validity of an alleged will is contested.

The paper writing in issue, purporting to be the last will and testament of Harriet W. Burton, deceased, was executed on the seventeenth day of June, 1911, and was approved and allowed by the register of wills, after formal proof of its execution, on the eleventh day of August, 1911, the said Harriet W. Burton having died on the eighth day of August 1911.

A petition for the review of the proof and allowance of said paper writing as the last will and testament of Harriet W. Burton was presented to the register of wills on the day of July, 1912, whereupon the register ordered and directed that the following question, to wit: "Whether the paper writing bearing date the seventeenth day of June, 1911, purporting to be the last will and testament of Harriet W. Burton, late of Kent County and State of Delaware, deceased, is or is not the last will and testament of said Harriet W. Burton, deceased, be tried before a jury at the bar of the Superior Court of the State of Delaware, in and for Kent County."

Such, gentlemen, is the issue you are impaneled to try. The sole question in the case is whether or not Harriet W. Burton had a sound and disposing mind and memory on the seventeenth day of June, 1911.

We will not undertake to state at length the testimony given by the witnesses. You have been very attentive during the trial; you are intelligent men, have listened carefully to the witnesses, and will doubtless remember their testimony with clearness and accuracy.

You understand, of course, that your finding must be based exclusively upon the testimony in the case, and the law as declared by the court. By this and this alone you are to be governed in reaching your verdict. You should not be influenced by any feelings of sympathy, favor, prejudice, or any consideration other than the evidence and the law.

It is undisputed that the testatrix, at the time she executed the alleged will, was about seventy-six years of age, and physically very weak; that her son, who was her only child, had died a few days before that time; that she was, at the time of her death, the owner of considerable real estate, including a very valuable farm just south of Dover, and other property; that her nearest relative was her sister Ann S. Rodney, who is the contestant in this case, and that George Burton, of J. H., the chief beneficiary under the alleged will, was a nephew of the testatrix's husband, but not related by blood to her.

It is claimed by the contestant that Harriet W. Burton was, at the time she made the alleged will, without testamentary capacity; that is, of unsound mind and incapable of making a will. In particular it is contended that she was at that time, and had been for a considerable period before, afflicted with paranoia, and had delusions respecting her property and her sister Ann S. Rodney. The contestant insists that there had never been any serious difference or trouble between herself and her sister, the testatrix; that she lived in another state, far from Dover, and did not see her sister for eight years before her death, but had called at her home once during that period and made an unsuccessful effort to see her.

It is claimed by the propounders of the alleged will that Harriet W. Burton was, at the time of making the alleged will, of sound and disposing mind and memory; that although she was physically weak, she was not afflicted with paranoia or any other mental disease, and was free from delusions of any kind. It is also claimed that the relations between the testatrix and her sister, the contestant, were strained and unfriendly at the time the alleged will was made, and had been for some time before, mainly because of a controversy or difference about the division of property.

It is insisted on the one side that the relations between the testatrix and George Burton, the chief beneficiary under the alleged will, had been, for many years prior to the making of the same, very close and friendly; and on the other side it is claimed that there were times when the testatrix did not feel any interest in, or fondness for, the contestant.

Under the law of this state any person of the age of twenty-one years or upwards, being of sound and disposing mind and memory, may make a will. Every person is presumed in law to be of sound mind until the contrary is shown, and the burden of showing an unsound mind in the testatrix to the satisfaction of the jury by competent evidence rests on the party contesting the validity of the will, and the testimony must relate to the time of its execution.

Testamentary incapacity is not to be presumed, but must be satisfactorily shown to the jury by the preponderance or greater weight of the evidence in the case.

If, however, insanity is once clearly established, the burden shifts, and it devolves on those supporting the will to show, by testimony as strong as that required to establish insanity, that it did not exist at the time the will was made; the burden, however, does not shift until insanity is so established to your satisfaction by a preponderance of the evidence.

In determining the question of testamentary capacity, that is, whether the testatrix was of sound mind, you must direct your minds to the precise time of the execution of the will. In cases like this, courts have been liberal in admitting testimony as to the mental and physical condition of the testatrix, both before and after the time of the execution of the will; but such testimony is admitted only for the purpose of enlightening your minds, so that you may have the environments of her life, and be able to concentrate your judgment upon the critical moment, and to say in that concentrated light whether at the precise time of the making of the will she was of sound and disposing mind and memory. If she was, then it is a matter of indifference what may have been her condition at any other time. Ball, Guardian, v. Kane's Executor, 1 Penn. 104, 39 A. 778.

In the case of Smith v. Smith's Adm'r, 18 Del. 245, 2 Penne. 245, 45 A. 396, this court said: "The law gives a person the right to dispose of his property as he sees fit, and he alone is the judge of how he will dispose of it. You are not to consider whether it is such a will as you would have made, or such a will as you think he ought to have made. If he was possessed of a sound and disposing mind and memory it was his right to dispose of his property by will as he pleaded, and with that disposition you have nothing whatever to do."

There are many varying grades of mental capacity, ranging from weak to strong--from the lowest to the highest degree of intelligence.

Intellectual feebleness alone, or mere weakness of the understanding, whether this condition of the mind be natural or the result of injury, or of disease, does not disqualify a person from making a valid will. A partial failure of mind or memory, that is to say, even a failure of mind or memory to a considerable extent, from whatever cause, is not, in itself, sufficient ground for setting aside a will, if there still remains sufficient mind and memory to enable the testatrix to comprehend and understand what she is about, or what she is doing. If she is able to understand that she is disposing of her estate by her will, and to whom she is disposing of it, however weak her intellect may be, she is able and competent to make a valid will. And hence the courts never undertake to measure the size, the degree, or the extent, of a woman's understanding or capacity; nor do they ever inquire into the wisdom, or the folly, of the dispositions which she may have made of her estate.

The question is not so much as to the degree of mind or memory possessed by the testatrix, as this: Had she sufficient mind and memory? Had she a disposing mind and memory? Was she capable of recollecting what property she was disposing of, and to whom she was disposing of it? In a word, were her mind and memory sufficiently sound to enable her to know, and understand, the business in which she was engaged, at the time when she executed her will? Jamison's Will, 3 Houst. 108.

If the jury are of the opinion from the evidence that the testatrix was capable, at the time she executed her will, of exercising thought, and judgment and reflection--if she knew how she was disposing of her property--what she was about, and had memory and judgment, her will cannot be invalidated. Chandler v. Ferris, 1 Harr. 454; Lodge's Will, 2 Houst. 418.

In the case of Sutton v. Sutton, 5 Del. 459, 5 Harr. 459, 461, Chief Justice Harrington instructed the jury that testable capacity on the part of the testator amounted to nothing more than a knowledge of what he was about, and how he was disposing of his property, and the purpose so to do it.

In considering and determining the question of capacity, the time when the will...