Sharp v. Merriman

• Decision Date: 26 February 1896
• Citation: 66 N.W. 372,108 Mich. 454
• Court: Michigan Supreme Court
• Parties: SHARP ET AL. v. MERRIMAN.

66 N.W. 372

108 Mich. 454

SHARP ET AL. v. MERRIMAN.

Supreme Court of Michigan

February 26, 1896

Error to circuit court, Jackson county; Erastus Peck, Judge.

Suit by Dwight Merriman against Ella W. Sharp and others to set aside the will of Howard L. Merriman, deceased. From a judgment in favor of proponents, contestant brings error. Affirmed.

Pringle, Hewett & Henigan (Wilson & Cobb, of counsel), for appellant.

Blair Edwards & Blair (Benton Hanchett and Thomas E. Barkworth, of counsel), for appellees.

MONTGOMERY J.

Appellant has brought here for review the proceedings had in the circuit court on appeal from the probate of the will of Howard L. Merriman, deceased. On a trial before a jury the will was adjudged a valid will. The objections to the probate of the will stated in the appeal from the probate court are that the deceased was possessed of an insane delusion in regard to the appellant, the father of the deceased, which delusion deprived the deceased of testamentary capacity. On the trial in the circuit, the circuit judge submitted to the jury the question of whether the deceased possessed testamentary capacity, and also the question of undue influence, but held that there was no testimony in the case fairly tending to show the existence of an insane delusion. The charge of the court upon the subject was as follows "I instruct you, in this regard, that if, independent of this question of mental delusion, you find the testator to have been of sound mind, the evidence is insufficient to prove such an insane delusion as would, considered independent, and standing alone, vitiate the will in question. It is, however, proper for you to consider the evidence bearing upon *** these questions, in determining first, whether the testator was in fact of sound mind when the will was made, and whether the will was the result of undue influence practiced upon him." Counsel for contestant contends that the testimony tended to show "that, after his mother's death, Howard Merriman felt wronged and aggrieved by her will, and agreed with his father that it should be contested; that he changed his mind, and wanted to support it, and that a feeling grew up on his part against his father, because he (the father) continued in his purpose to contest the will; that this feeling became intense and morbid"; also, that some months after the execution of the will "he fell into a passion, and swore and cried, and insisted that his father was trying to cheat him out of that money,-trying to rob him,-and that Walter Bennett had looked it up, and he knew how it was down there; he knew it was a regular scheme; and that he would put his father behind the bars, if necessary."

Mrs. Merriman, the mother of Howard, and wife of Dwight, died June 10, 1892, leaving a will containing bequests to charitable institutions, and named Howard as one of the executors. It appears that at first there was no intent to contest the will, and Dwight Merriman offered to go on Howard's bond when he should qualify as executor. Subsequently it was agreed that the will should be contested, and, as the testimony of contestant tends to show, Howard agreed with his father and sisters that the will should not be sustained; but he, later on, determined that the will should be sustained, and employed an attorney to do so That this litigation, in which Howard and his father took opposite sides, caused some bitterness between them, is manifest, but is no more manifest from Howard's course than from language used towards him by his father, which bitterness could alone excuse, and which was calculated to leave a sting which would cause, in the mind of Howard, towards his father, a sense of wrong which it would be a wide stretch to call a delusion. A delusion is a belief in a fact for which there is no foundation. It cannot be said that the belief of Howard that his father was trying to wrong him by contesting his mother's will had no foundation. It is said that Howard would have received more from his mother's estate if her will had been set aside, but it is in evidence that he felt a pride reposed in him by his mother in naming him as executor; and, if he became convinced that the will of his mother was properly made, it is certainly not evidence of an insane delusion that his father, in attempting to defeat the will, was guilty of a wrong, and a wrong against Howard himself, if it can be considered that a dutiful son can have an interest in carrying out the last wishes of a deceased parent. So, as regards the statement which Howard made after the making of the will, implying that his father was trying to cheat him, it can be said of this that Merriman delayed in turning over to Howard his money, and while such a judgment of his father was harsh, and perhaps unwarranted, it cannot be said it had no foundation in fact. Furthermore, this delusion, if it existed, could not have influenced the making of the will, for it was not shown to have existed until months after the will was executed. So far as it had any tendency to show general mental incapacity, it was submitted to the jury. We are convinced, by a careful examination of the record, that the circuit judge was right in holding that there was no evidence tending to show an insane delusion. The testimony of the statement of Howard that his father was trying to rob him is not, within the ruling of Haines v. Hayden, 95 Mich. 332, 54 N.W. 911, admissible. In this case the statement was not only made after the making of the will, but related to transactions which had taken place after the will was made; and if, by any stretch, it can be said that a misjudging of the transaction amounts to an insane delusion, it certainly does not tend to show a delusion existing months before. In Haines v. Hayden the alleged delusion was as to a supposed fact, which, if it existed, antedated the making of the will; and the testimony was admissible, not for the reason that any delusion which found lodging in the mind after the will was executed would defeat the will, but as tending to show that the particular delusion did exist in the mind of the testator at the time that the will was made. The charge of the court defining the degree of mental capacity requisite to enable one to make a valid will was full and clear, and followed the previous holdings of this court.

Criticism is made of the charge upon the subject of undue influence. The court charged as follows: "Undue influence is such influence as suppresses the volition of testator, and constrains him to give expression to the will of another instead. Undue influence need not be proven by direct evidence, but may be inferred from circumstances; and, in determining this question, you should take into account the confidential relations existing between testator and Walter A. Bennett, who, with others, is charged with having exercised such influence; the opportunities of said Bennett and others to exercise an influence over the testator; the fact that this will was made without the knowledge of the heirs of the deceased; changes, if any, between the testator's declared intention and the provisions of the will; any unnatural or unjust provisions the will may contain, if there are any; and, in fact, all the circumstances surrounding the testator at the time it is alleged this will was made." Contestant proposed charges as follows: "It is to be presumed that the testator, being of sound mind and free volition, will, in general, bestow his property on his next of kin, and will not disinherit his heirs." "If...