Thayer v. Thayer

• Decision Date: 28 September 1915
• Docket Number: No. 405.,405.
• Citation: 188 Mich. 261,154 N.W. 32
• Parties: THAYER v. THAYER.
• Court: Michigan Supreme Court

188 Mich. 261

154 N.W. 32

THAYER

v.THAYER.

No. 405.

Supreme Court of Michigan.

Sept. 28, 1915.

Error to Circuit Court, Ingham County; Charles B. Collingwood, Judge.

Will contest between Edson Thayer, as proponent, and John Arthur Thayer, as contestant. There was a judgment for contestant, and proponent brings error. Affirmed.

Argued before BROOKE, C. J., and KUHN, MOORE, STONE, OSTRANDER, BIRD, and STEERE, JJ. Person, Shields & Silsbee, of Lansing, for appellant.

McArthur & Dunnebacke, of Lansing (Alva M. Cummins, of Lansing, of counsel), for appellee.

KUHN, J.

This litigation arises out of a contest with reference to what purported to be the last will and testament of John Thayer, deceased. He was born in the state of New York in 1843, and in 1871 was married at Mason, Mich. As a result of this marriage five children were born. One died, and at the time of the trial there were surviving his widow, Mary Thayer, and four children, Arthur, Frank, Bertha, and Fred. John Thayer had a brother, Edson Thayer, who survived him and was the sole devisee and beneficiary named in his will. John Thayer and his family lived at first on a 90-acre farm, and afterwards on a 40-acre farm, in Ingham county, until 1891, when he went to Dakota to work in harvest time, and with the exception of a short visit home that winter and in 1900 he remained there until 1910, when he returned to Michigan and lived with his brother Edson the remainder of his life. In 1900, while in Dakota, he filed a bill for divorce, and charged on information and belief that his wife committed adultery with one Henry Wrang on the farm in Ingham county. The wife appeared in the suit, filed an answer, and a decree of divorce was awarded her, which provided also that the 40 acres, the homestead in Ingham county, be assigned, transferred, and set over to her. Subsequently she filed a bill against John Thayer and Lafayette Near, who held the paper title to the farm, in the Ingham circuit court in this state, seeking to have the order of the South Dakota court as to the real estate enforced and the 40 acres turned over to her. John Thayer appeared, and the bill was dismissed. In 1907 she filed a bill for divorce in the Ingham circuit court, to which John Thayer filed an answer, but the case does not seem to have been finally disposed of.

The will in question was made on December 28, 1910, at the office of John I. Carpenter, an attorney in the city of Lansing, and at the same time his brother Edson Thayer also made a will, naming John Thayer as his sole beneficiary and devisee. John Thayer's will was duly admitted to probate, and on an appeal to the circuit court by Arthur Thayer, one of his sons, a verdict was rendered in favor of the contestant. Two propositions on the trial were insisted upon by the contestant, viz., that the will was made and executed as the result of undue influence and duress exercised over John Thayer by his brother, Edson A. Thayer, and that at the time of making and signing the will John Thayer was mentally incompetent to make and execute the same. There was submitted to the jury, at the request of counsel for contestant and appellee, the following special question:

‘Was the testator, John F. Thayer, at the time of making the will in question, mentally incompetent to make the same, by reason of an insane delusion or delusions, as claimed by the contestant in this case?’

This was answered ‘Yes' by the jury. There are 134 assignment of error, which in a large measure refer to rulings of the court upon the admission and rejection of testimony.

Counsel for appellant urge strongly that the court was in error in submitting to the jury the question of undue influence, as it is claimed that the record is entirely barren of any competent testimony in support of this claim of the contestant. But in answer thereto it is said that, even if this were conceded, it would be wholly immaterial, as, the jury having found by its answer to the special question which was submitted to it that the testator was mentally incompetent to execute the will in question, the will cannot stand, irrespective of the question of undue influence. While we are not satisfied that it can be said that there was no evidence of undue influence which warranted the submission of that question to the jury, in our opinion, even if there were none, the error committed in submitting the question must be said to have been harmless, in view of the special finding of the jury on the question of mental competency.

It is also proponent's claim that there is no competent proof in this record of mental incompetency on the part of the deceased. With this we cannot agree. It is the claim of the contestant upon this branch of the case that, when John Thayer and his family left the 90-acre farm and moved on the 40-acre farm because of financial reverses, it marked a complete change in his life. Before that time, it is claimed that he was in all respects a normal man, kind to his children, an habitual attendant at church, and public-spirited. After a short stay on the smaller farm he began to brood, stopped work, stayed away from church, and instead of loving his family began to curse them. He at first began to accuse his wife of extravagance, and in August, 1891, left for Dakota without saying good-by to any member of the family or telling them now long he was going to stay away. He remained away until Christmas time, and returned on Christmas eve, unannounced, and the family on returning from Christmas exercises found him in the house, at which time he did not kiss or shake hands with any of his children. He left again in March, 1892, without saying good-by to any of his children, not even bidding farewell to his eldest son, Arthur, who took him to the train.

It appears that while in Dakota he cherished a violent dislike and resentment toward his wife and his children, and in 1900 filed the bill charging his wife with adultery on information and belief. In 1907, in the answer which he filed to the bill filed by his wife in this state, he alleged that ‘by the spring of 1892, he personally detected her in an act of illicit carnal intercourse and adultery, at their residence, with one Henry Wrang.’ It is the claim of the contestant that there was absolutely no ground for this charge, and that it was the produce of...