Small v. Small

• Decision Date: 01 May 1826
• Citation: 4 Me. 220
• Court: Maine Supreme Court
• Parties: EMILY SMALL & als. appts. v. MARY SMALL

4 Me. 220

EMILY SMALL & als. appts. v. MARY SMALL

Supreme Judicial Court of Maine, Cumberland

May, 1826

IN this case, which was an appeal from the decree of the Judge of Probate refusing probate of the will of Henry Small, the principal question was whether, under the circumstances proved, the testator intended the instrument as his last will, or only as an expedient, to operate in terrorem upon a child who had incurred his displeasure.

Decree reversed, and the will approved and allowed.

It was argued at this term by Emery for the appellants.

Longfellow for the appellee.

OPINION

The facts sufficiently appear in the opinion of the court, which was delivered at the following November term by MELLEN, C. J.

This is an appeal from a decree of the Judge of Probate in this county. A paper, purporting to be the last will and testament of Henry Small, was presented for probate. Upon examination of all the facts in relation to the same, the Judge was of opinion, that the testator, at the time of making the supposed will, was not of sound and disposing mind and memory; and he thereupon decreed against the probate and allowance of the same, as the last will and testament of said Henry Small. In the reasons of appeal, the decree is alleged to be against law, because the testator, at the time of making the will, was more than twenty one years old; was then of sound and disposing mind and memory; and that the instrument was duly executed, and was his last will and testament. It has not been denied that the testator was of competent age; and in the argument it has not been contended that he had not the possession of his reason, understanding and memory; but the point relied on is, that if the instrument was duly executed as to form, still that it was not intended to be, or executed as the testator's last will; and, even if it was, that it was made under the unlawful importunity and influence of his wife, who is the principal appellant in the case, and that on that ground, it is void.

1. From the testimony of the subscribing witnesses, there does not seem to be any doubt as to the execution of the will in point of form. One of the witnesses testifies to his making the usual declaration, that the instrument was his last will and testament. The other two do not particularly recollect this but the circumstance is not material; the due subscribing by the testator and witnesses being proved. See 4 Dane's Abr. 559, 560, 561, 568, 569, and cases there cited.

2. The next question is, whether the instrument, so executed, was intended to be, and operate, as his last will; or was only designed as an admonition to his daughter Mary, the appellee and an experiment, by way of corrective to her conduct, of which he was habitually complaining; and was, in fact, a mere measure to have its effect in terrorem on the mind of his daughter, but none upon his own property.

On this point the proof is not clear. If such was his object, it seems no measures were taken to apprize her of what he had done; and there is proof of Mary's declaration, that she did not know of the existence of a will till some time after the testator's death, and more than four years after the will was executed. One of the subscribing witnesses says that the testator stated that " if his daughter found out that he had cut her off, she would do better." Another of the witnesses says that the testator, at the time the will was written, remarked that if his daughter " reformed, he should do better by her." Both say that at that time he appeared much excited and angry. And yet, during four years, he does not appear to have changed his determination as to his daughter, and the disposition of his estate, though his excitement and passions must have subsided. It further appears, from the testimony of one of the witnesses, that the testator requested him to examine the will, and give his opinion respecting it; and spoke of it as his settled will. Considering all these circumstances, in connection with the other important fact, that the will does not appear to have been revoked, or cancelled, or in any manner altered, we cannot perceive any legal ground for concluding that the instrument in question, when it was executed, was not intended to be his last will and testament, and as such to be considered and respected. We must presume that in his view, at least, his daughter had not " reformed," and therefore he was never disposed " do better by her."

3. The next inquiry is, whether the instrument in question is to be disallowed as the last will and testament of Henry Small, on account...