Spencer v. Terry's Estate

• Decision Date: 21 April 1903
• Citation: 94 N.W. 372,133 Mich. 39
• Parties: SPENCER et al. v. TERRY'S ESTATE.
• Court: Michigan Supreme Court

94 N.W. 372

133 Mich. 39

SPENCER et al. v. TERRY'S ESTATE.

Supreme Court of Michigan

April 21, 1903

Error to Circuit Court, Berrien County; Orville W. Coolidge, Judge.

Judicial proceedings on the probate of the will of Melissa E. Terry deceased. From a judgment denying probate on the contest of Charles A. Spencer and others, the estate appeals. Reversed.

Cady & Andrews and I. W. Riford, for appellants.

Gore &amp Harvey, for appellees.

CARPENTER, J.

Proponent asks this court to reverse a verdict and judgment denying probate to an instrument purporting to be the last will of Melissa E. Terry, deceased. The material facts are stated in the opinion rendered when this case was before the court on a former occasion. See Spencer v. Terry's Estate, 127 Mich. 420, 86 N.W. 998.

While the proponent produced witnesses who were present when the will was made, and whose testimony tended very strongly to prove testamentary capacity at that time, the witnesses produced by contestants testified to observations made before and after said will was made. Many of proponent's objections relate to the admissibility and sufficiency of this testimony of contestants. Complaint is made that many of contestants' witnesses were permitted to express an opinion adverse to testatrix's testamentary capacity without having testified to facts and circumstances warranting that opinion. It is sufficient to say that each of those witnesses whose testimony was admitted in evidence against the objection and exception of proponent, under the rule applied by this court in Prentis v. Bates, 88 Mich. 567, 50 N.W. 637, and 93 Mich. 234, 53 N.W. 153, 17 L R. A. 494, did testify to facts and circumstances warranting the expression of the opinion complained of.

It is also contended that testatrix's lack of capacity to execute the will on February 17, 1899, could not be established by evidence of her condition before or after that time. Proponent makes this claim because in the case of Lange v. Wiegand, 125 Mich. 647, 85 N.W. 109, this court said, speaking of the condition of a testator failing rapidly from a stroke of paralysis, several hours after he had made his will: 'What his condition was at that time could not be weighed against the testimony of witnesses, who stood unimpeached, as to the condition when the will was made.' It was not meant by this expression to cast any doubt upon the rule, settle alike by reason and authority that testatrix's lack of capacity to execute a will at a particular time may be proved by her condition before and after that time, if that prior or subsequent condition may be presumed to exist at the time the will was made. See Harring v. Allen, 25 Mich. 505, and Haines v. Hayden, 95 Mich. 332, 54 N.W. 941, 35 Am. St. Rep. 566. The quotation relied upon in the opinion in Lange v. Wiegand was a statement warranted by the facts in that case, and was not intended to apply to another and different case. To apply that principle to this case, it is necessary for proponent's counsel to maintain--and they do maintain--that the facts testified to by Mr. Plummer, who drew the will and witnessed its execution, not only establish the competency of the testatrix to make the will, but that they cannot be discredited by the testimony of witnesses who saw the testatrix before and after that time. We cannot agree with this contention. Contestants' witnesses testify to facts and circumstances, and opinions properly based thereon, which justify the jury in finding that testatrix lacked capacity to make the will in question during a period commencing some time before it was made, and continuing to her death. If it is true that it is a necessary inference from Mr. Plummer's testimony that testatrix possessed testamentary capacity when the will was made, it must be and is true that the jury might discredit that testimony, if they were convinced by the testimony of contestants that she did not possess testamentary capacity at that time. We think, therefore, as above indicated, and as indicated in the former opinion in this case, that there was sufficient evidence of lack of mental capacity to support the verdict in this case.

On the cross-examination of Mr. Plummer, he was asked: 'And you did not suggest to her, when you were discussing with her the last clause of that will, that she was giving all her household belongings and pictures to the library association?' Complaint is made that the court did not sustain proponent's objection to this question; that it made no difference 'whether he suggested it or not.' We think this question was not improper, and that the ruling of the court was correct. Mr. Plummer was then asked: 'You state to this jury you allowed her to will her personal belongings--pictures, silver, household treasures--to the library association, without saying a word to her?' After the witness had answered, 'I do,' proponent's counsel objected to the question as argumentative. Witness thereupon said, 'If you want to know the reason, I can tell you the reason,' and the court thereupon said: 'It is somewhat argumentative. I think we had better have his reasons.' The only objection which we think could properly have been made to this question was that it improperly suggested that testatrix was under the control of the witness, or that the was under an obligation to control her. That objection was not urged when the testimony was admitted, and, the court having recognized the force of the only objection that was urged, and permitted witness to pursue the course he desired, we must hold there was no error.

Complaint is made that the court did not strike from the record the testimony of witnesses to the effect that testatrix was in the habit of using morphine. The particular testimony referred to related to testatrix's habit in 1891. The testimony was introduced against proponent's objection that it was too remote from the date of the execution of the will, and that the habit of using morphine 'would have no effect whatever upon the question of mental capacity.' It was admitted, notwithstanding this objection, upon the statement of contestants that they were going to show that testatrix continued to use it, and that they had already introduced testimony to that effect. Proponent's counsel, in their brief, urge that the testimony should have been stricken out, because 'there was no proof, nor any attempt to prove, that morphine will make a person incompetent to make a will,' and because 'contestants produced no proof to show testatrix to have been under the influence of morphine at the time she executed the will.' Neither of these objections was made at the time the testimony was introduced, nor, so far as the court can learn from an examination of the record and briefs, at any time thereafter. We must decline, for these reasons, to determine their validity.

In his charge to the jury the court made a brief statement of the substance of Mr. Plummer's testimony in a manner not complained of by proponent, and then stated: 'Now gentlemen, if Mr. Plummer, in the statement of facts which I have briefly summed up, has testified truthfully and reliably, then this will must stand. ...