Taff v. Hosmer

• Decision Date: 05 May 1866
• Citation: 14 Mich. 309
• Court: Michigan Supreme Court
• Parties: Samuel S. Taff v. John Hosmer and another

14 Mich. 309

Samuel S. Taff v. John Hosmer and another

Supreme Court of Michigan

May 5, 1866

Heard April 17, 1866 [Syllabus Material] [Syllabus Material]

Error to Wayne circuit.

This was an appeal from the decree of the probate court of Wayne county, admitting to probate the last will and testament of Cyrus W. Jackson, deceased. In accordance with an order of the circuit court, the proponents filed a declaration, in which they averred the execution of the will, and that the testator was of sound mind.

To this declaration the contestant pleaded the statutory general issue, and also special pleas, denying the soundness of mind of the testator.

Under the charge of the court the jury rendered a verdict sustaining the validity of the will; and the contestant brought the case by writ of error to this court.

The facts appearing on the trial, and the charge of the circuit judge, appear in the opinion of the court.

The errors assigned and insisted upon in this court on the argument, were as follows:

1. Said circuit court erred in refusing to allow the contestant to open the case to the jury, and to open the case in putting in testimony on the question of the mental soundness of the testator.

2. Said circuit court erred in allowing the will to be read in evidence before the proponents had given in their whole evidence as to the soundness of mind of the testator.

3. Said circuit court erred in allowing the proponents, after the contestants had rested their case, to introduce a great quantity of affirmative evidence in regard to the soundness of mind of the testator.

4. Said circuit court erred in refusing to the contestants the right or privilege of opening and closing the argument of the case to the jury, after the entire testimony was introduced, on the question of soundness of mind of the testator.

5. The circuit court erred in making the four charges, and each of them, as requested by the counsel for the proponents, and in refusing to change the same, as requested by the counsel for the contestants.

Judgment affirmed.

Levi Bishop, for plaintiff in error:

1. Upon the issue formed by order of the circuit court, the contestants had the right to open the case to the jury before the introduction of the evidence. A "painful conflict of judicial decisions" on this question is noticed in the case of Beaubien v. Cicotte, 8 Mich. 13. In the present case the proponents averred the soundness of mind of the testator, as this was required to be done in the pleadings, by the opinion of the court in the case above cited. This rule is thus laid down with reference to the pleadings solely. We insist that when we come to the proofs, the presumption of law, that the testator is of sound mind, prevails; and that the party who contests that fact, being compelled to prove unsoundness affirmatively, has the right to open the case: Redfield on Wills, 44, note 30.

On an appeal from the probate court, the presumption is in favor of sanity, and it is for those who aver the contrary to prove it: 7 Gray 71; Redf. on Wills, 45, § 28; Id., 46, 47, 48.

2. We also insist that, having the affirmative of the issue on the question of sanity, we had a right to the opening in the introduction of testimony. See case cited; Redf., 46-49.

3. The proponents did in fact introduce, in their opening, evidence of the soundness of mind of the testator, and we claim that, having done this, they were bound to introduce their whole evidence on that point, before they rested: 8 Mich. 9; Redf., 30-50.

4. The first point charged by the court was erroneous. Most clearly, the due and legal execution of the alleged will was a question in issue, especially raised by the proceedings, and was to be passed upon and found, one way or the other, by the jury. The court in his charge took that question away from the jury. No matter how clearly the will may have been proved, it was for the jury to pass on, and the court ought to have left the question to them. To take it away from them, or to charge that it was not in issue, or to charge that another issue was the only one in the case, was erroneous.

D. Bethune Duffield, G. V. N. Lothrop, and C. I. Walker, for defendants in error:

1. There is no error in the rulings of the court as to the right of the appellants to go forward, or the right of the appellees to put in further proof as to sanity, after the appellant's evidence was in. At all events this is a matter of discretion on the part of the circuit judge, with which this court will not interfere.

"The mode of conducting trials, the order of introducing evidence, and the times when it shall be introduced, are matters properly belonging to the practice of the circuit courts, with which this court ought not to interfere:" 14 Pet. 448; 1 Black 227.

This court have decided that the propounder of the will must aver the sanity of the testator. Whether that sanity must be proved, or will be presumed, is a question on which authorities differ: 8 Mich. 9; 10 Am. L. Reg., 547.

This question has been very fully examined in Redf. on Wills, pp. 30-50. The practice seems in accordance with the course pursued in this case: 7 Pick. 94; 2 Gray 532; 7 Id. 72.

2. The ruling upon the question of sanity was laid down with clearness, and is, at least, sufficiently favorable to the appellants: 12 Mich. 459; Redf. on Wills, pp. 103, 124-130, and cases cited.

OPINION

Cooley, J.

Several questions of practice arise in this case in regard to the order of proceeding in the circuit court on the trial of appeals in testamentary cases. Hosmer and Bissell were proponents, in the probate court, of the will of Cyrus W. Jackson, for probate; and it appears by the record that the will was allowed by that court, and that Taff, who was sole contestant, appealed.

The pleadings on the part of the proponents in the circuit court, were in conformity to the ruling of this court in Beaubien v. Cicotte, 8 Mich. 9, which required an allegation that at the time of the execution of the will the decedent was of sound mind. The contestant pleaded the statutory general issue, and also denied, specially, the soundness of mind and competency of the decedent. This special plea, we apprehend, was entirely unnecessary, and does not in any way affect the case. Sanity is involved in the due execution of a will; and, even if it were not, the general plea would put it in issue where it is necessary for the proponents to aver it. The contestant also denied, specially, the execution of the will by Jackson; and also that the proponents, who are named executors therein, were suitable persons for that trust.

It appears that immediately on a jury being sworn, the contestant claimed the right to open his case to the jury, and introduce his testimony before the case on the part of the proponents should be gone into. The circuit judge denied the right, and the contestant excepted.

We are referred to no authority which would sanction the course here proposed, and it can not be seriously argued that it would be correct practice. The formal execution of the will was not only not admitted, but it was specially denied by the pleadings; and the offer of the contestant proposed to take the case into his own hands at a stage when there was nothing for him to contest, and when, if the case was submitted without evidence from the proponents, he would be entitled to a verdict against them, as of course. To state the position is to demonstrate its fallacy. A defendant may be entitled to open the case when the pleadings are such as, in the absence of proof, would establish the right claimed against him; but he can neither be required, nor is he entitled, to open it for the purpose of disproving allegations not yet in any manner supported, but which the plaintiff must prove in order to entitle him to a verdict. If the contestant had the right to open, he would equally, at his option, have been entitled to a verdict; for he need only abstain from putting in any evidence, and the proponents, having none to reply to, would be entirely excluded from giving any. The objection thus taken is therefore manifestly unsound.

The real questions, however, which the contestant has presented for decision, arise more properly upon subsequent rulings and relate to the issue on the point of sanity, and on the right to open and close the argument. It appears that the proponents, being allowed to go forward with their evidence, confined it to an examination of the subscribing witnesses, who testified to the formal execution of the will, and that Jackson at the time was of sound mind. The contestant then put in evidence tending to show a want of testamentary capacity, and rested his case. The proponents were then allowed by the court, against the objection of the contestant, to go fully into the question of sanity; not by way of reply merely, but to put in affirmative evidence as fully as if the ground had not been covered by their evidence at the outset. And at the conclusion of the proofs the proponents were...