Thompson v. Kyner

• Decision Date: 07 July 1870
• Citation: 65 Pa. 368
• Parties: Thompson <I>versus</I> Kyner.
• Court: Pennsylvania Supreme Court

65 Pa. 368

Thompson versus Kyner.

Supreme Court of Pennsylvania.

May 10, 1870.

July 7, 1870.

May 10th 1870.

Before THOMPSON, C. J., AGNEW and SHARSWOOD, JJ.

Error to the Court of Common Pleas of Franklin county: No. 70, to May term 1870.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

J. McD. Sharpe (with whom were Stambaugh & Gehr, Kennedy & Stewart and F. M. Kimmell), for plaintiffs in error.— Excluding the evidence offered would leave the proof of capacity to the subscribing witnesses, which might do great mischief: Harrison v. Rowan, 3 W. C. C. R. 581; 1 Redfield on Wills 525. After insanity is established, the burden is on the party alleging a lucid interval when the will was executed: 1 Redfield on Wills 112; Harden v. Hays, 9 Barr 152; Landis v. Landis, 1 Grant 248. The expression of opinion on the testimony was too strong: Hamet v. Dundas, 4 Barr 181; Nieman v. Ward, 1 W. & S. 68; Parker v. Donaldson, 6 Id. 132; Kiester v. Miller, 1 Casey 481; Ralston v. Groff, 5 P. F. Smith 278; Bogle v. Kreitzer, 10 Wright 466; Cadbury v. Nolen, 5 Barr 320; Keeler v. Vantuyle, 6 Id. 250; Trovillo v. Tilford, 6 Watts 468; Strohl v. Levan, 3 Wright 177; Graff v. Pittsb. & Steub. Railroad, 7 Casey 489; Ditmars v. Commonwealth, 11 Wright 335; Lane v. Commonwealth, 9 P. F. Smith 371. As to the instructions on the subject of testamentary capacity, Stevenson v. Stevenson, 9 Casey 469; Leech v. Leech, 9 Harris 69; McMasters v. Blair, 5 Casey 303; Daniel v. Daniel, 3 Wright 191; McTaggart v. Thompson, 2 Harris 149; Winchester's Case, 6 Reports 23; Dornick v. Reichenback, 10 S. & R. 91. As to the answer to the defendants' 10th point, 1 Redfield on Wills 128; Coleman v. Robertson, 17 Alabama 84. As to the instruction in regard to Mr. Ross's attestation, Barker v. McFerran, 2 Casey 211; Lossee v. Lossee, 2 Hill 609; Fox v. Evans, 3 Yeates 506; McElwee v. Sutton, 2 Bailey 128.

G. W. Brewer (with whom were J. R. Orr and J. Cessna), for defendants in error.—The test is the competency of the testator at the execution of the will: 1 Redfield on Wills 38, 39; Stevens v. Vancleve, 4 W. C. C. R. 262; Harden v. Hays, 9 Barr 163; Grabill v. Barr, 5 Id. 443; Stevenson v. Stevenson, 9 Casey 472. There was no evidence of undue influence, and that question should have been withdrawn from the jury: Daniel v. Daniel, 3 Wright 191; Eckert v. Flowry, 7 Id. 52. The whole charge is to be taken together; the court may express an opinion on the facts: Porter v. Seiler, 11 Harris 428; Ditmars v. Commonwealth, 11 Wright 337; Watts v. Cummins, 9 P. F. Smith 88; Manhattan Ins. Co. v. Webster, Id. 231. As to the comparative capacity for a contract and a will, 1 Redfield 123, 124. The attestation of witnesses is strong evidence of capacity: Werstler v. Custer, 10 Wright 503.

The opinion of the court was delivered, July 7th 1870, by THOMPSON, C. J.

Testamentary capacity is always presumed to exist until the contrary is established. An abnormal condition of mind is never presumed when a testator makes his will, unless a previous aberration be shown, of such a nature as may admit of a presumption of recurring unsoundness at any time: 4 Wash. C. C. Rep. 262; 8 Shepley 461; 5 Johns. 144; 1 Pet. C. C Rep. 166. It is true, the witnesses to a will when produced for probate, are asked whether they regarded the testator of sound and disposing mind and memory, but this is form merely, for in case of death, absence or incapacity of the witnesses to testify, proof of their handwriting satisfies the requirement of proof of execution.

What constitutes the want of a sound disposing mind and memory is incapable of a definition suited to all cases. Every case is, to a great extent, to be tested by its own facts, circumstances and surroundings. We can do but little more than generalize in regard to the subject.

As the will before us is contested on the grounds of want of capacity in the testator to make a will, and also undue influence in executing it, if he had capacity, we may as well here refer to some authorities on these points, which show the opinions of courts and writers in similar cases, and which are regarded as tests in such cases since their announcement.

On the subject of testamentary capacity, Redfield on Wills (p. 124), says: "the result of the best considered cases upon the subject, seems to put the question of understanding requisite to the valid execution of a will upon the basis of knowing and comprehending the transaction; or in popular phrase, that the testator should, at the time of executing the will, know and understand what he is about." "Old age, failure of memory, or habitual drunkenness, will not (per se) constitute incapacity to execute a will:" 1 Green Ch. Rep. 11; 5 Johns. C. 158; and in 2 Green 581, it is said, "the power of making a valid will is not impaired by the approach of old age." In Converse v. Converse, 21 Vt. 168, it is held, that "if the testator was at the time capable of understanding the nature of the business and the elements of the will, that is, the nature and extent of his property, and the persons to whom he meant to convey it, and the mode of distribution, it is sufficient." This is our rule as stated in McMasters v. Blair, 5 Casey 298: "To understand in detail," say this court, "all that he is about, is quite sufficient." In Daniel v. Daniel, 3 Wright 191, the substance of this rule is stated in the court below, but more definitely expressed by this court. "A sound and disposing mind and memory," say the court, "is one in which the testator is shown to have had at the making and executing his will, a full and intelligent consciousness of the nature and effect of the act he is engaged in; a knowledge of the property he possessed; an understanding of the disposition he wished to make of it by the will, and of the persons and objects he desired to participate in his bounty. It is not necessary he should collect all these in one review. If he understands in detail all he is about, and chooses with understanding and reason between one disposition and another, it is sufficient." This is but an expression of what was said in Storms v. Vanclive, 4 W. C. C. Rep., supra, where the court, in regard to the testamentary capacity in that case, puts to the jury the inquiry: "To sum up the whole in the short, simple and intelligible form, was his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will?"

These citations, to which many more might be added, contain in a generalized form a rational rule on this subject, which is entirely capable of application by a court and jury. It is not meant in any of them that the mind may not be weakened by old age, or sickness, or other causes. That may be the case and no alienation or abnormal condition exist. Weakness alone will not invalidate a will, if mind and memory exist sufficient to understand the subject in hand, and to direct intelligently the dispositions desired to be made of property. The test of all this is to be of the time when the will is made, including some latitude of proof before the execution, and immediately, as contradistinguished from remotely, after it.

The most usual attack on the will of an aged testator, and it is made here, is undue influence, which is, of course, a concession of capacity, although weak. In a recent case, this court has given its view of what constitutes the requisites to overturn a will on this ground, and I will content myself with referring to it alone. In Eckert v. Flowry, 7 Wright 46, Strong, J., in speaking on the subject, said: "It (undue influence) may be either through threats or fraud; but however exercised, it must, in order to avoid a will, destroy the free agency of the testator at the time when the instrument is made." In the language of Woodward, J., in McMahon v. Ryan, 8 Harris 329, "it must be a present constraint, operating on the mind of the testator in the very act of making the testament." The learned judge, proceeding to the facts of the case, said, "unless, therefore, there was some evidence tending legitimately to prove that some fraud had been practiced upon the testatrix at that time (the 21st of June, the date of the will,) or that some misrepresentation had then been made, or that some physical or moral coercion had been employed, such as to destroy her free agency, the court erred in submitting to the jury the question, whether undue influence had been exerted." * * "Neither moral nor physical constraint is to be inferred from mental weakness alone. That undue influence which suffices to destroy an alleged will, is distinct from weakness, and has no necessary connection with it." All this is fully supported by the best authorities, and is to be regarded as a true exposition of what it treats.

As to the assignments of error, then: — 1st. The first is upon an exception taken to the exclusion of a portion of the offer contained in the first bill of exceptions. That portion referred to alleged declarations of the defendant, without limitation as to time, place or the circumstances of making them. The court rejected all but such as related to the sanity or mental capacity of the testator at or before the time when the alleged will was made, or within a short period thereafter. This was right on every principle; such declarations are of slight weight, at all events; not sufficient to impeach a will on the ground, either of want of capacity, or of undue influence; or materially to aid in it. They must be shown to have been made when the subject of them is a transaction of a present or recent nature, showing that the mind of the declarant is actually in contemplation of what it has been referring to. The testimony offered referred to alleged settlements and transactions...