Barker v. Comins
110 Mass. 477
Mass.
1872
Check Treatment
Gbay, J.

When a testamentary instrument offered for probate is executed and attested as required by statute, and has not been revoked or cancelled, only three questions can arise: 1st. Was the testator, at the time of executing the instrument, of sound and disposing mind and memory, capable of understanding the nature of the act he was doing and the relation in which he stood to the objects of his bounty and to the persons to whom the law would have given his property if he had died intestate? 2d. Was the instrument executed under fraud or undue influence, by which his own intentions were controlled and supplanted by those of another person ? 3d. Did he execute the instrument anima testandi, with an understanding and purpose that it should be his last will and testament ?

The issues submitted to the jury presented these three questions in a simple, direct and intelligible form. The additional issues suggested by the appellants were rightly rejected. They were unusual and unnecessary, and would have tended to embarrass rather than to assist the jury.

The questions to the witnesses produced at the trial were rightly admitted. They did not call for the expression of an opinion upon the question whether the testator was of sound or unsound mind, which the witnesses, not being either physicians or attesting witnesses, would not be competent to give. Hastings v. Rider, 99 Mass. 622, 625. The question whether there was an apparent change in a man’s intelligence or understanding, or a want of coherence in his remarks, is a matter not of opinion, but of fact, as to which any witness who has had opportunity to observe may testify, in order to put before the court or jury the acts and conduct from which the degree of his mental capacity may be inferred.

*488It was rightly ruled that the word “ advances,” as used in one clause of the will, was not restricted to “ advancements,” within the meaning of the Gen. Sts. o. 91, §§ 6-10 ; but might, in considering the bearing of that clause upon the issue of the sanity of the testator, be taken to include any benefits conferred upon his son by the testator in his lifetime, and which he might reasonably consider to have been such an appropriation of his estate as, added to what he bequeathed to him, would make him equal with his other sons.

The instruction as to the burden of proof, and the effect of unreasonableness in the provisions of the will, was correct and sufficient.

The remaining and the most important question in the case is whether there was any material omission or error in the instructions upon the effect of any mistake of the testator.

Our statute of wills declares that no will made in this Commonwealth since its enactment, (except nuncupative wills of soldiers and mariners,) “ shall be effectual to pass any estate, real or personal, nor to charge or in any way affect the same, unless it is in writing and signed by the testator, or by some person in his presence and by his express direction, and attested and subscribed in his presence by three or more competent witnesses.” Gen. Sts. e. 92, § 6.

In a court of probate, it may doubtless be shown by paroi evidence that the alleged testator, at the time of signing the instrument, did not understand that it was a will, or intend that it should operate as such. Swett v. Boardman, 1 Mass. 258. Osborn v. Cook, 11 Cush. 532,535. But if, being of sufficient mental capacity, and free from insane delusion or undue influence, he executed the instrument with a knowledge of its nature and contents, and intending that it should be his last will, its admission to probate cannot be opposed by evidence that he did not understand the legal effect of all its provisions, or truly appreciate the proportions in which his property would be thereby distributed. To allow this to be done would be to defeat, by evidence of the most unsatisfactory and untrustworthy character, an instrument voluntarily executed by a competent testator with all the forms *489and solemnities which the statute makes essential to the validity of a testamentary disposition. Mitchell v. Gard, 3 Sw. & Tr. 75. Guardhouse v. Blackburn, L. R. 1 P. & D. 109. Atter v. Atkinson, Ib. 665. Harter v. Harter, L. R. 3 P. & D. 11, 12. Gifford v. Dyer, 2 R. I. 99. Comstock v. Hadlyme, 8 Conn. 254. Iddings v. Iddings, 7 S. & R. 111.

The authorities cited in the learned argument for the appellants do not, when examined, support any other conclusion. Many of those most relied on related to questions of construction of wills and codicils. Such were Cook v. Oakley, 1 P. Wms. 302 ; S. C. 2 Eq. Cas. Ab. 323, pl. 19, and 439, pl. 32 ; Attorney General v. Lloyd, 3 Atk. 551; Campbell v. French, 3 Ves. Jr. 321; Attorney General v. Ward, Ib. 327 ; Doe v. Evans, 2 P. & D. 878; S. C. 10 A. & E. 228; and Malcolm v. Malcolm, 3 Cush. 472. The passages cited from Swinburne on Wills, pt. 7, §§ 5, 11, so far as they involve anything more, are of no weight, inasmuch as he wrote before the passage of the statute of frauds, and when wills of personal property might be made, and wills even of real estate revoked, without writing. See pt. 1, § 12 ; pt. 7, § 15. The case of Perrott v. Perrott, 14 East, 423, was upon the effect of an act of cancelling a will, when no writing was required. Lemann v. Bonsall, 1 Add. 389, was a case of a nuncupative will, the whole proof of which rested in oral testimony. In Ingram v. Wyatt, 1 Hagg. Eccl. 384, and Marsh v. Tyrrell, 2 Hagg. Eccl. 84, the wills were made by persons of weak mind and under circumstances strongly inferring fraud and circumvention, in Zacharias v. Collis, 3 Phillimore, 176, it appeared that the instrument was not understood or intended to be a will at all; and these three cases were but decisions upon the insufficiency of evidence, made by a judge trying law and facts together, and before Parliament had passed any statute requiring peculiar formalities in wills of personal estate. The cases, already referred to, decided in the new court of probate under the St. of 1 Viet. c. 26, have put the matter upon the right footing.

In the report now before us, it is found as a fact that the will, at the time of its execution, was read by the testator himself, as well as read to him by the solicitor who drew it. It would be *490superfluous to go over in detail the instructions requested by the appellants or those given by the judge who presided at the trial. Tested by the rules already stated, it is clear that all the requests, except the third, were rightly refused, and that the modifications and additions with which the third was submitted to the jury were sufficiently favorable to the appellants.

Decree affirmed.