Shepardson v. Potter
| Decision Date | 06 March 1884 |
| Citation | 18 N.W. 575,53 Mich. 106 |
| Court | Michigan Supreme Court |
| Parties | SHEPARDSON v. POTTER. |
Where a party asserts that an instrument was obtained by undue influence, the law excluding all presumption of undue influence over a person of sound mind, he is required to prove affirmatively that it was so obtained; but in order to do this he should be permitted to show the previous relations of the parties within a reasonable time. In most instances this proof would be made by circumstantial evidence, and the exclusion of such testimony in this case is error.
The undue influence which operates to defeat a will must be such as overcomes the free action of the mind at the time of making the will; but the pressure may have been brought to bear previously, and if it remained so as to coerce the mind of the testator at the time the will was executed, it cannot be upheld.
Admissions made by a party to the record may be given in evidence by the opposite party.
Error to Wayne.
Geo. W. Coomer, for complainant.
Wilkinson Post & Wilkinson, for appellant.
In this case Noah Shepardson filed the will of his wife, Olive L Shepardson, for probate, in the probate court for the county of Wayne, he being one of the legatees and the executor of said will. At the hearing in the probate court James C. Potter, the father of Mrs. Shepardson, appeared as a contestant of the will. The probate court refused to admit the will to probate. Proponent appealed to the circuit court for the county of Wayne, where the will was sustained. Contestant brings error.
The grounds upon which the probate of the will was contested were want of capacity to execute it, and undue influence exercised by Noah Shepardson, the principal legatee and executor. The record discloses that Dr. Shepardson, the proponent, was married to the decedent on the eighth day of June, 1882, and that she died July 22d, following. She had been, previous to her marriage, a widow, and had been under his treatment as her physician. It also appears that the proponent had previous to the marriage above referred to, been married, and had separated from that wife in 1879. There was evidence going to show that in January, 1882, which was some six months prior to the marriage, Mrs. Shepardson, then Mrs. Brunthaver, had made a will while she was at Plainwell, and had sent it to proponent, who was then located at Wyandotte; and that afterwards she had destroyed this will because he was not suited with the disposition of the property she had made. This was before the proponent's first wife had obtained a divorce from him.
The proponent was called to testify by the contestant, and was allowed to state that there had been talk between himself and Mrs. Brunthaver as early as 1881 about her making a will, but was not permitted to state what was said about it at that time. From statements which he made to her father and mother at the time of his wife's funeral, that there had been an agreement between him and the decedent that they should each make a will in favor of the other, to the effect that whichever should die first the survivor should have the use of the property left by the deceased, during life, and then it should go to the heirs of such deceased person; and that the will in question was made by her to carry out the agreement. Mrs. Shepardson was taken ill on Wednesday and died on Saturday, at about 4 o'clock in the afternoon. Proponent was with her alone during Friday night, and became satisfied that she was so sick she could not recover about 1 or 2 o'clock on Saturday morning.
The attorney who drew the will states that he received a message, about 8 o'clock in the morning of the day Mrs. Shepardson died, to come to Dr. Shepardson's drug-store; that on arriving there he met proponent, who told him that his wife wished him to draw some papers for her, and took him into the room where Mrs. Shepardson was lying in bed, and introduced him to her, and she stated to him that she wished to make a will; that he sat down by the bed and made a memorandum of how she wished to dispose of her property, and then went to his office and drew the will according to the instructions she had given and the memorandum taken, and returned in about half an hour and read it over to her, and she pronounced it correct and executed it; that Dr. Shepardson was out and in while he was taking the memorandum and while she was executing the will, and asked her about two or three items of property, what she wanted done with them,--the things at her father's, and the lots in Ohio.
The contestant called witnesses and proposed to prove that the deceased was an invalid from the fall of 1880 until the fall of 1881, and that Dr. Shepardson treated her as her physician during that time; and also proposed to show the relations of the deceased and proponent, and that these relations were brought about by proponent and continued until the fall of 1881; and to establish this proposition he asked a witness these questions: "Did she ever live at your house?" "State whether to your knowledge, at Fremont, in the state of Ohio, Dr. Shepardson attended the decedent as her physician, and what time that treatment commenced?" "Up to what time did he treat her as her physician?" "Do you know from the doctor's statement, or otherwise, what the malady was for which he treated her?" "State when it was, if you know, that Mrs. Brunthaver came away from Fremont?" "State whether at this time Dr. Shepardson had a wife with whom he was living, and a family of children?" "How long did the doctor treat Mrs. Brunthaver at Fremont, Ohio?" "Do you know what time the doctor left Fremont?" "Do you know when Mrs. Brunthaver left Freemont?" "Do you know whether the doctor and Mrs. Brunthaver came away from Fremont together?" "Do you know how intimate their relations were while she was there at your place?" "Do you know when the doctor and his first wife separated, and ceased to live together as husband and wife?" The witness then testified that at that time Dr. Shepardson was acting as business agent for decedent, and counsel for contestant then asked witness, "Do you know what amount of property she had at that time?" All of these questions were severally objected to and excluded as immaterial, the court remarking "that if no marriage had afterwards taken place between the proponent and deceased the case might stand differently, but as she afterwards married the proponent this made a great difference."
The following questions were put to Mrs. Eliza Potter, the deceased's mother, and objected to as immaterial, and excluded: "Do you know at what time your daughter became acquainted with him?" "State, from what occurred in your presence, whether the doctor had any influence over your daughter?" "How many times was the doctor at your house?" "When was he last at your house?" "What were the relations of your daughter, the deceased to yourself and your husband, her father and mother?" Witness then testified that during the latter part of the year 1881 her said daughter had a talk with her about what disposition she intended to make of her property, and said she intended her property, after her death, should go to her parents,--to her mother, especially; that she spoke of it several times, and the last time was just before she went to Plainwell on a visit, in December, 1881. Witness was then asked: "Did you ever at any time see, among her papers, a written memorandum, in her handwriting, with reference to her will?" To this question counsel for proponent objected as immaterial, as it was before the marriage to the doctor. Counsel for contestant explained that it was a memorandum as to what disposition she would make of her property. The court asked the witness when it was, and she answered that it was before the last conversation about the property. Thereupon the court sustained the objection, and the counsel for the contestant duly excepted. Witness further testified that the several conversations with the doctor about the will, that she had testified to, occurred at Wyandotte, and that afterwards, at the funeral, while she and her husband and the doctor were riding together in a buggy, the doctor said he promised the deceased that if she would make the will to him it would only be for a short time; that he could not live long, and that then it should all come back to her parents as...
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