Wilson v. Mitchell

Decision Date30 December 1882
PartiesWilson et al. <I>versus</I> Mitchell et al.
CourtPennsylvania Supreme Court

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

ERROR to the Court of Common Pleas of Butler county: Of July Term 1883, No. 238.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

George A. Jenks (with whom were W. D. Brandon, T. C. Campbell and Clark), for plaintiffs in error, reviewed the evidence at length, and contended that the conflicting testimony should have been submitted to the jury. The sanity of the testator and all questions of fraud belong to the jury: Lewis v. Lewis, 6 S. & R. 489; Leech v. Leech, 5 Clark 86; Tenbrook v. Lee, 5 Clark 37; Daniel v. Daniel, 3 Wright 191; Tawney v. Long, 26 P. F. Smith 106; McMaster's v. Blair, 5 Casey 298. Our fourth point should have been affirmed: Greenfield's Estate, 2 Harris 489, 505; Dean v. Negley, 5 Wright 312; Story's Equity § 310, 311.

If the devise to Mitchell was meant to pay an indebtedness to him as attorney, he should show that there was some indebtedness or services rendered such as the testator had in his mind. If there was none, the devise was made under a false impression: Boyd v. Boyd, 16 P. F. Smith 283; 1 Redfield on Wills pp. 529, 530, 514; McMahon v. Ryan, 8 Harris 329, 331.

Thompson and McCandless (with whom were Fleeger, McQuisition and Walker), for the defendants in error.—It is the province of the court to determine the question of testamentary capacity, and it is error to submit it to the jury, unless the evidence is sufficient. The scintilla doctrine is exploded: Knight's Appeal, 7 Harris 493; Restine's Estate, 3 Weekly Notes 27; Mealey's Estate, Ibid. 370; In re Will of Ellen de Benneville Shaw, 1 Ibid. 332; Colegate's Estate, 35 Leg. Int. 90; Jane Hardy's Will, 34 Leg. Int. 248; Boyer's Estate, 36 Leg. Int. 292; De Puy's Estate, 1 Weekly Notes 212; Frowert's Estate, 2 Ibid. 588; McLean's Estate, 2 Ibid. 338; Elizabeth Hoge's Estate, 2 Brewster's Reports 450; Mintzer v. Baker, 5 Phila. Rep. 455; Dean v. Negley, 5 Wright 317; Graham's Appeal, 11 P. F. Smith 43; Bradford's Will, 1 Parsons 157; Wikoff's Appeal, 3 Harris 281; Commonwealth v. Bunn, 21 P. F. Smith 412; Cozzen's Will, 11 Id. 196; Foster's Appeal, 6 Norris 67; Wickersham's Appeal, 25 P. F. Smith 334; De Haven's Appeal, 25 Ibid. 337; Wainwright's Appeal, 8 Norris 220; Ryder v. Wombwell, Law Reports, 4 Exchequer 38; Jewell v. Parr, 13 Com. Bench 909; Toomey v. The London & Brighton Railway Co., 3 Com. B. N. S. 150; Wheelton v. Hardisty, 8 Ellis & Blackburn 262; Raby, Exr. of Cell v. Cell, 4 Norris 80; Hyatt v. Johnston, 10 Norris 196.

"The existence of the fiduciary relation does not annul the testamentary act in favor of his client, but such facts call for watchfulness lest some improper influence may be exercised:" Harrison's Appeal, 4 Out. 458; Boyd v. Boyd, 16 P. F. S. 292. The undue influence must be a present constraint operating on the mind of the testator at the time of his executing the will. Eckert v. Flowry, 7 Watts 46; McMahon v. Ryan, 8 Harris 329; Tawney v. Long, 26 P. F. Smith 115. The influence exerted must amount to a moral coercion which restrained independent action and destroyed free agency: Lovett v. Lovett, 1 F. & F. 581; Morris v. Stokes, 21 Geo. 552; Dean v. Negley, 5 Wright 312; Sutton v. Sutton, 5 Harrington 459; Taylor v. Kelly, 31 Ala. 59; Blakey v. Blakey, 33 Ala. 611; Stevenson v. Stevenson, 9 Casey 470; Zimmerman v. Zimmerman, 11 Harris 375.

Mr. Justice TRUNKEY delivered the opinion of the court, December 30th 1882.

The determination of the first question presented in the issue was withdrawn from the jury by the court directing them to find that at the time of the execution of the alleged will, David Dougal was of sound mind and disposing memory. If this ruling was correct, the first four assignments of error cannot be sustained, even if the defendant's first three points were sound. In considering whether the question should have been submitted, some well settled principles may first be noted.

A man of sound mind and disposing memory is one who has a full and intelligent knowledge of the act he is engaged in, a full knowledge of the property he possesses, an intelligent perception and understanding of the disposition he desires to make of it, and of the persons and objects he desires shall be the recipients of his bounty. It is not necessary that he collect all these in one review. If he understands in detail all that he is about and chooses with understanding and reason between one disposition and another, it is sufficient for the making of a will: Daniel v. Daniel, 39 Pa. St. 191; Tawney v. Long, 76 Id. 106. If from any cause he is so enfeebled in mind as to be incapable of knowing the property he possesses; of appreciating the effect of any disposition made by him of it; and of understanding to whom he intends to bequeath it, he is without the requisite testamentary capacity: Leech v. Leech, 21 Id. 67. "He must have memory. A man in whom this faculty is totally extinguished cannot be said to possess understanding to any degree whatever, or for any purpose. But his memory may be very imperfect; it may be greatly impaired by age or disease. He may not be able at all times to recollect the names, the persons or the families of those with whom he had been intimately acquainted; may at times ask idle questions, and repeat those which had before been asked and answered; and yet his understanding may be sufficiently sound for many of the ordinary transactions of life. He may not have sufficient strength of memory, and vigor of intellect, to make, and to digest all the parts of a contract, and yet be competent to direct the distribution of his property by will. This is a subject which he may possibly have often thought of; and there is probably no person who has not arranged such a disposition in his mind before he committed it to writing; more especially, in such a reduced state of mind and memory, he may be able to recollect and to understand the disposition of his property which he had made by a former will, when the same is distinctly read over to him. The question is not so much what was the degree of memory possessed by the testator as this — Had he a disposing memory? Was he capable of recollecting the property he was about to bequeath; the manner of distributing it and the objects of his bounty? To sum up the whole in the most simple and intelligent form — Were his mind and memory sufficiently sound to enable him to know, and to understand, the business in which he was engaged at the time when he executed the will?" Stevens v. Vancleve, 4 Wash. C. C. 262; Lowe v. Williamson, 1 Green Ch. 82. Neither age, nor sickness, nor extreme distress or debility of body will affect the capacity to make a will, if sufficient intelligence remains. The failure of memory is not sufficient to create the incapacity, unless it be total, or extend to his immediate family or property. The want of recollection of names is one of the earliest symptoms of the decay of the memory; but this failure may exist to a very great degree, and yet "the solid power of the understanding" remain: Van Alst v. Hunter, 5 Johns. Ch. 148.

A careful examination of the facts related by the witnesses who had acquaintance with Dougal and opportunity to observe his condition about the time of the execution of the will, reveals no sufficient evidence of testamentary incapacity to warrant its finding against the convincing evidence that he had disposing mind and memory. Excepting the attesting witness to the will, one who is not an expert can only testify his opinion that the testator's mind was unsound, after having stated facts within his own knowledge tending to show that condition; and whether he has testified to such facts as entitle his opinion to go to the jury is always a question for the court: First N. B. of Easton v. Wirebach's Exr., 12 W. N. C. 150. In the admission of testimony the court allowed the defendants great latitude, and having heard it all, upon determining its sufficiency, properly gave no weight to opinions which were incompetent.

Dougal had lived over one hundred years before he made the will, and his physical and mental weakness and defective memory were in striking contrast with their strength in the meridian of his life. He was blind; not deaf, but hearing impaired; his mind acted slowly, he was forgetful of recent events, especially of names, and repeated questions in conversation; and sometimes, when aroused from sleep or slumber, would seem bewildered. It is not singular that some of those who had known him when he was remarkable for vigor and intelligence, are of opinion that his reason was so far gone that he was incapable of making a will, although they never heard him utter an irrational expression. To...

To continue reading

Request your trial
73 cases
  • In re Phillips' Estate
    • United States
    • United States State Supreme Court of Pennsylvania
    • February 9, 1914
    ...in measuring the preponderance of the evidence (Yardley v. Cuthbertson, 108 Pa. 395, 460, 1 Atl. 765, 56 Am. Rep. 218; Wilson v. Mitchell, 101 Pa. 495, 505; Yorke's Estate, 185 Pa. 61, 71, 39 Atl. 1119); and, in the absence of "direct proof of undue influence actually exercised by the propo......
  • Phillips' Estate
    • United States
    • United States State Supreme Court of Pennsylvania
    • February 9, 1914
    ...Pa. 163; Yardley v. Cuthbertson, 108 Pa. 395; Robinson v. Robinson, 203 Pa. 400, 422, 425; Blume v. Hartman, 115 Pa. 32, 40; Wilson v. Mitchell, 101 Pa. 495, 505; Armor's Est., 154 Pa. 517; Miller's Est., 179 645, 652-3; Adam's Est., 220 Pa. 531; many of the foregoing cases are explained in......
  • In Re Sturgeon's Estate.
    • United States
    • United States State Supreme Court of Pennsylvania
    • May 26, 1947
    ...consists, and of what he desires done with 53 A.2d 142it, even though his memory has been impaired by age or disease. Wilson v. Mitchell, 101 Pa. 495; In re McNitt's Estate, 229 Pa. 71, 78 A. 32; In re Tetlow's Estate, 269 Pa. 486, 112 A. 758; In re Snyder's Estate, 279 Pa. 63, 123 A. 663; ......
  • In re Pusey's Estate
    • United States
    • United States State Supreme Court of Pennsylvania
    • January 31, 1936
    ...by prior cases, and has been oft repeated since. See Cuthbertson's Appeal, 97 Pa. 163; Boyd v. Boyd, 66 Pa. 283; Wilson v. Mitchell, 101 Pa. 495, 505; Yardley v. Cuthbertson, 108 Pa. 395, 1 A. 765, 56 Am.Rep. 218; In re Adam's Estate, 220 Pa. 531, 69 A. 989, 123 Am.St.Rep. 721, and In re Ka......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT