Spencer v. Terry's Estate

• Decision Date: 10 July 1901
• Citation: 86 N.W. 998,127 Mich. 420
• Parties: SPENCER et al. v. TERRY'S ESTATE.
• Court: Michigan Supreme Court

86 N.W. 998

127 Mich. 420

SPENCER et al. v. TERRY'S ESTATE.

Supreme Court of Michigan

July 10, 1901

Error to circuit court, Berrien county; Orville W. Coolidge, Judge.

The will of Melissa E. Terry, proposed for probate by George F Sonner, was contested by Charles A. Spencer and others. From a decree declaring the will void, the proponent brings error. Reversed.

A. P. Cady and I. W. Riford, for appellant.

Gore &amp Harvey, for appellees.

HOOKER J.

The controversy in the present case arises over the will of Melissa Terry, who died, a childless widow, at the age of 70 years, at Benton Harbor, Mich. The index does not refer to the verdict and judgment, if they are contained in the record, but the briefs lead us to infer that a successful contest was made by the appellee, and the will was held to be void on the ground of a want of testamentary capacity. The will was drawn by her attorney, named Plummer, and was formally executed. The following is a copy: 'In the name of the Father, the Son, and the Holy Ghost, I hereby make my last will and testament. To God, its Creator, I intrust my soul. To its returning dust I resign my body, and it is my wish that it be laid beside my husband in the family lot at Elmwood Cemetery, Detroit, Mich., as indicated on the map within which is the deed of ownership; said map and deed to be submitted to the care of F. S. Hendrickson, my nephew, who will accompany the remains to their last resting place. When funeral rites are over, and all expenses settled, including doctors, undertakers, and other incidental, I next bequeath to my brother, Charles A. Spencer, and my sisters, Romelia M. Hendrickson, of 3101 Groveland Ave Chicago, Ill., and Mary S. Johnson, of 4725 Langley Ave., Chicago, Ill., such part of my estate as I received from my father's estate at the time of his death, namely, a thousand and fifty dollars, to be equally divided between them. I next bequeath to Elmwood Cemetery the sum of two hundred dollars, to be kept at interest as a perpetual fund for keeping the lot in good condition. I also bequeath to Mary L. Whipple, of Grand Rapids, Michigan, a prot�g� of mine since her mother's death, when she was but eight years of age, the house and lot in Berrien Springs once the property of Mrs. Francis Smith, but which came to me through foreclosure of mortgage. All the balance of my estate, of whatever kind, I give and bequeath to the Benton Harbor Library Association, to have and to hold forever.' The undisputed testimony shows that on the 17th day of February she sent a note to Plummer, requesting him to call at her residene, and he did so. She gave him a memorandum in her own handwriting, and requested him to put it in shape for her will. The will drawn is a literal copy of the memorandum, except the last paragraph, which was not contained in the memorandum. The witness testified that after reading the memorandum he asked her what she wanted to do with the balance of her property, and said, 'You have only disposed of part of it.' She said: "I have had two objects in view.' One was to give it to a small church, as I remember it. I thought she said South Haven--I didn't charge my mind with it--and the Benton Harbor Library Association.' Then she said, "As I have worked for the church all my life, the church wouldn't find fault with me,' and she concluded to give it to the Benton Harbor Library Association.' The will was read to Mrs. Terry, and she signed it. At that time the library association was organized, but had not yet a library, having been organized but a short time. The will was witnessed by a Mrs. Gurd, who occupied a portion of the house of Mrs. Terry, and was called in for the purpose.

The brief of the contestant places the contest upon the ground of mental incompetency, and we need not consider the question of undue influence, of which there is not a shadow in the proof. The testatrix was taken ill in December. She made her will on February 17th, following, and died on March 26th. Her physician, Dr. Bell, testified that he was first called in December, and made a few visits that month, and was next called in January 31st, and thereafter attended her at intervals of a few days, and sometimes on successive days. He says that at his first visit she had chills and fever, heart trouble, and a dropsical condition of the system; also a slight kidney trouble; that at times she showed considerable mental derangement. He did not notice any particular trouble with her mental condition during the fore part of her illness, but about the 19th of February, one evening, she was excited and irrational, and from that time she was deranged to a certain extent, and, in his opinion she was not competent to make the will. Mrs. Gurd, a woman who occupied a portion of Mrs. Terry's house, and saw much of her; Mrs. Getchell, an acquaintance for six years; Mrs. Keith, a near neighbor; Mrs. Woodruff, the wife of a clergyman, and an intimate friend of the testatrix; Miss Deam, a school teacher, and intimate friend of long standing; and Mrs. Faulkingham, who was much with testatrix in church work,--all testified that, in their opinions, she was incompetent to make this will. There were others who gave similar testimony. There was testimony tending to show that the testatrix was not in her usually strong mental condition when she was sick, and that at times she was incoherent and rambling. On the other hand, the inference is strong that she was not at all times irrational, and the uncontradicted testimony of Plummer is very convincing. Whatever witnesses may think of her condition as a rule, it is impossible to read this record impartially without believing that the making of a will had been on her mind for some time; that on the 17th day of February she sent for her attorney, and gave him the written memorandum, which some of contestant's witnesses testify was in accord with her previously expressed intentions, and which was on that day or some other day prepared by her, and which, in and of itself, tends strongly to show that she was not incompetent when it was prepared. She accompanied it with a suggestion as to the balance of her property which is not in itself unreasonable. It has been said that when the undisputed proof shows that the testator could and did write or dictate the will produced, in the absence of fraud or undue influence, 'the fact is established that he was capable, mentally and physically, of doing whatever the instrument shows was done; and the only question is, does the instrument, on its face, indicate that it is the emanation of an unsound mind, when applied to the facts and...