Welch v. Adams

• Decision Date: 31 July 1885
• Parties: Welch & a, Ex'rs v. Adams, Ap't
• Court: New Hampshire Supreme Court

1 A. 1

63 N.H. 344

Welch & a, Ex'rs v. Adams, Ap't

Supreme Court of New Hampshire

July 31, 1885

Decree of the probate court affirmed.

SYLLABUS

Appeal from a decree of the probate court allowing the will of Isaac Adams. The only issue joined was, whether the testator was of sound and disposing mind. Verdict for the appellees, which the appellant moved to set aside. Neither of the appellees testified.

The appellant, by the exercise of discretion under the statute was permitted to testify generally, but, subject to exception, was excluded as to conversations and matters occurring between himself and the deceased, and as to which the latter, if alive, could have testified, it not appearing to the court that injustice was done thereby, but quite the contrary. Neither of the executors testified, and no devisee or legatee was called by them as a witness.

The appellant requested the court to instruct the jury as follows:

1. There is no legal definition or test of insanity, or soundness of mind, or of the mental capacity to make a valid will. Soundness of mind, such as will enable a person to make a will, has reference to the business to be transacted namely, the disposition of property by will: his mind must have been sound with reference to whatever is involved in this transaction. If it shall appear that he is able to understand the nature and situation of his property, and his relations to those persons in whom and those things in which he has been mostly interested, the nature of the act he was doing, and the relations in which he stood to the natural objects of his bounty, this condition of his mind is evidence to be considered upon the question of his mental capacity to make a will. But such evidence furnishes no legal test of his capacity to make a will: it is simply evidence to be weighed in connection with all the other testimony in the case as to the testator's soundness or unsoundness of mind. The court does not instruct you as to what, in point of law, is mental capacity to make a will.

2. The mind of the testator must have been free from any condition which was the effect of disease, and which would or might lead him to dispose of his property otherwise than he would have done but for the effect of such mental disease. All the testimony which you have heard concerning his domestic relations, and his feelings of like or dislike towards the members of his family; all the testimony as to what he said and what he did; all the testimony concerning his disposition and temperament, and concerning any change in these respects between the earlier and later portions of his life; concerning his troubles, griefs, and disappointments; concerning his manners and habits, and any change in them between the earlier and later portions of his life; all the eccentricities and peculiarities, if you find he had any,--should be considered, so far as they may aid you in ascertaining the condition of his mind at the date of the will.

3. All infirmities, though not necessarily a disqualification, awaken caution to see if mental capacity is impaired or gone.

4. Partial insanity or unsoundness of mind will not alone always and inevitably destroy the will; but whenever the insanity, partial or general, or mental disease or derangement, modifies the disposition of the testator in the will, enters into the will and forms a part of it, it will destroy the will, even though some faculties of the mind are sound.

5. If you find, from all the evidence, the existence and effect in the will of unsoundness of mind, general or partial, such infirmity destroys the will. While it does not require universal perfection and soundness of mind to make a will, neither does it require absolute unsoundness of mind to destroy a will. If mental unsoundness or disease lurks in the will, has produced its effects there, changed or modified the disposition of the property, it is not a valid will.

The specific instructions asked for were not given, and the appellant excepted. Instructions concerning the matters referred to in the requests were given, to which no exception was taken. The other exceptions sufficiently appear in the opinion of the court.

Wm. L. Foster, Geo. B. French, and Paul Wentworth, for the appellant.

The decree of a judge of probate is vacated by an appeal; and proceedings for proof of a will in solemn form are of a higher and more conclusive nature than those for proof in common form, and supersede and swallow up the less formal proceeding. There must be a confirming order in the proceedings in solemn form, or the decree in common form is void, and this without any appeal in the latter case. G. L., c. 194, s. 8; c. 207, s. 6; Mathes v. Bennett, 21 N.H. 188, 189, 203; Brown v. Cochran, 11 N.H. 199, 200; Smith Prob. Law 294; Arnold v. Sabin, 4

Cush. 46; Campbell v. Howard, 5 Mass. 376; Sever v. Sever, 8 Mass. 132, 133; Ewer v. Beard, 3 Pick. 64; Paine v. Cowdin, 17 Pick. 142; Boynton v. Dyer, 18 Pick. 1, 4; 1 Will. Exec. 657, 658 (old ed., 588, n. i); Price v. Parker, 1 Lev. 158; State v. Williams, 9 Gill 173; Shauffler v. Stoever, 4 Serg. & R. 202; Fletcher v. Fletcher, 29 Vt. 98; Williams v. Robinson, 42 Vt. 662, 663; Shephard v. Rhodes, 60 Ill. 301.

Any appeal from the probate of a will, which puts in issue the very question whether there is a will or not, carries with it whatever is necessarily involved in the appeal; it carries with it whatever depends for its existence upon the existence and final establishment of the will; it carries with it the question whether A B, who may have received letters testamentary, is an executor.

Section 12, c. 207, Gen. Laws, does not qualify c. 194, s. 8, so as to do away with the necessity for a confirming order; it only carries back such order in its effect to the time of the first decision, but until such confirmation is made the appeal vacates the decision or decree.

The appellees should not be clothed with a constructive existence the better to enable them to attain actual existence. The statute never could have intended that witnesses competent in a hearing upon the probate of a will in common form before a judge of probate should be incompetent in the supreme court of probate, merely because, in the first stage of the proceedings, the would-be executors prevailed. The probate in solemn form takes the place of an appeal from the decree of probate in common form; and an appeal in this proceeding embraces the whole record in the probate court as to the will's existence, and the conclusion upon this appeal is the conclusion of the whole matter. When a hearing is had in common form for the probate of a will, can it be said there are executors in existence such as are contemplated in Gen. Laws, c. 228, s. 16? If parties opposed to the will can then testify, what consistency would there be in holding that the statute contemplated that by the progress of such cases from court to court the evidence should undergo suppression and the witnesses disqualification? In this way, by the disallowance of the will at the hearing in common form, the witnesses would remain competent, and upon an appeal would be competent. What sort of a construction of a statute would this be that would lead to such incongruous results, and narrow one's instruments for attaining justice as he progressed from an inferior to a higher tribunal?

There is but one alternative, and that is, either to hold that the statute embraces all parties petitioning to be appointed administrators, executors, or guardians of insane persons, and thus enable such petitioners, by prompt action, to put all adversaries hors de combat; or else that, until the matter of their being such representatives has been finally heard and settled, all parties shall have equal rights to be heard upon any fact that bears upon that decision.

They also cited upon this point English v. Porter, ante, 206, 214, 215; Nash v. Reed, 46 Me. 168; Millay v. Wiley, 46 Me. 230; McKeen v. Frost, 46 Me. 239, 249; Hamilton v. Hamilton, 10 R.I. 538; Garvin v. Williams, 50 Mo. 206, 212, 213; Hunt v. Acre, 28 Ala. 580; 1 Gr. Ev., s. 550; Shailer v. Bumstead, 99 Mass. 112, 130; Brown v. Carroll, 36 Ga. 568; Deupree v. Deupree, 45 Ga. 415, 424; Orr v. Cox, 3 B. J. Lea (Tenn.) 617, 619; 1 Bright. Pur. Dig. 624, s. 16; Bowen v. Goranflo, 73 Penn. St. 357; Daniels v. Foster, 26 Wis. 686; Moulton v. Mason, 21 Mich. 364, 371, 372; Estate of Dieterich, 1 Tucker (N. Y. Surrogate) 129; Abb. Tr. Ev. 64, n. 9; Hood v. Lord Barrington, 6 L. R. Eq. 222.

Blodgett, J., did not sit: the others concurred.

OPINION

SMITH

1. The statute does not require a will to be signed or sealed in the presence of the subscribing witnesses, nor that they sign in the presence of each other (G. L c. 193, s. 6), although this is usual, and generally advisable. The testator may have sufficient reasons for not disclosing the fact that he has made his will. Swinb. Wills 27. His acknowledgment that the seal and signature are his, with a request to the witnesses to attest the instrument, is sufficient. Osborn v. Cook, 65 Mass. 532. The fact that the will in this case was signed, sealed, and witnessed as such in the presence of the testator and subscribing witnesses, was evidence from which the jury might find that the will was attested by the subscribing witnesses at the request of the testator.

2. Prior to the passage of the act of 1857 (c. 1952) the contestant of a will was excluded from testifying on the trial of an appeal by reason of his interest. The general rule of the common law, then in force here, was, that a party to the record in a suit, and persons directly interested in the result of a suit, could not testify. The rule was founded partly on the general expediency of...