12 Mich. 459 | Mich. | 1864
This case arises upon the will of Antoine Beaubien deceased, probate of which was refused in the Probate Court, and in the Circuit Court for Wayne county to which an appeal was brought. The will was opposed on the grounds of incapacity, and fraud and undue influence.
The will was sworn to have been executed at Detroit, on the 12th day of January, 1858. The testator had been married several years to the plaintiff in error, Julia Beaubien (now re-married to Thomas Coquillard), and had no children of his own. His wife had four children, one of whom, Rose, was married to Joseph A. Moross, who, with his wife, also joins in the writ of error. The will was drawn at Mt. Clemens, in Macomb county, by Robert P. Eldredge, who drew it from memoranda furnished by James B. Eldredge. Moross visited Mt. Clemens to get R. P. Eldredge to come to Detroit and draw it. He sent his son James, who was at that time a student at law. He testifies to having received instructions from Beaubien, through Mrs. Beaubien and Moross who interpeted between him and Beaubien, witness not understanding French, which was the language in which they conversed. R. P. Eldredge the next day drafted the will at Mt. Clemens from his son’s memorandum, and gave it to Moross. This was on the day before the will is sworn to have been executed. He also gave Moross a memorandum, directing, among other things, that the attending physician of Mr. Beaubien should be present at the execution, and ask him if it was his will, and attest it as the principal subscribing witness. The persons present at the execution as witnesses were, Dr. Isaac S. Smith, Beaubien’s physician (who lived at Grosse Point about nine miles from Detroit), Ignace Moross a brother of Joseph Moross, and Francis Provost.
Dr. Smith testified in his direct examination concerning the time and circumstances of the execution of the will, and that on that occasion a servant man came to his place after him, and said Mr. Beaubien wanted he should come down, and that witness arrived at the house from ten ■ to eleven o’clock. Hpon cross examination concerning
Objection was also made to allowing Dr. Smith to be ••asked whether, he did not testify on a former trial that he “said yes and no, and played good Lord and good devil, because he did not know into whose hands he might fall.” We can see no ground for any otgection to this question. It would go very directly to his fairness and .candor, and is one of those questions commonly allowed to test the value of the witness as qne" likely to afford reliable evidence to the jury.
Witness on cross- examination had stated that, some .years before, he had a conversation with Mr. Beaubien in his wife’s presence. No part of the conversation was .given, and it does not appear what it was about. Plaintiffs in error sought, upon re - examination, to ascertain what Mr. Beaubien said on that occasion. This the Court refused to permit, as the cross - examination had not covered it. This refusal was correct. It does not appear to have had any bearing whatever upon any part of the contro
The proponents asked to have Joseph A. Moross and Rose J. Moross discharged from the case, upon exhibiting a renunciation by Moross of the executorship, and a quit claim from Rose to her mother of all interest under the will; and also proposed to have said Moross sworn as a. witness on such discharge. The Court refused to permit the change of parties to be made.
Whether parties who have taken an appeal from the court below, as proponents of a will, can be discharged in the appellate Court, is a question concerning which we have been referred to no satisfactory authorities. It has been held in some cases that an original probate court may discharge, in its discretion. But if the power exists, it can hardly be claimed as a matter of right.
The proponents of a will, when they appeal from the decree refusing probate, become actors responsible for costs, and shaping the issue to suit themselves. Should they all withdraw, the appeal must go down, according to the ordinary rules governing such matters. If all can not with-s draw, and all should desire to do so and yet to leave the controversy pending, it might be difficult to settle such a dispute if the right existed. The utmost that can be claimed, as we think, is that a court may use its discretion to allow a claimant to withdraw upon such terms as shall not prejudice the rest. It is intimated in Brush v. Holland, 3 Bradf. 240, that an executor can not withdraw after he has so far acted as to offer the will for probate. The question, except so far as it regards this suit, is unimportant now, because parties are no longer excluded as witnesses. If there was any power in the Cour-t to allow the application, it was discretionary, and the refusal is not, to be reviewed on error. We do not feel called upon, therefore, without further argument, to determine under
The witness, Peter P. LeFevre, having testified concerning the time when he made a visit to Beaubien before his death, counsel for contestants were allowed, under objection, to call his attention to his testimony on a former trial, in order to refresh his recollection; and this was done by referring to and reading counsel’s minutes of the former testimony.
The authorities recognize this as not improper. The modes of recalling a witness’s memory to facts which he has forgotten can not be arbitrarily restricted, and, if suspicious means should ever be used, the remedy is to be found in cross - examination and comment: — 1 Stark. Ev. 177. The precise course allowed here was permitted in Laws v. Reed, 2 Lew. Cr. Ca. 152. Mr. Greenleaf also refers to some other decisions involving the same principle: — 1 Greenl. Ev. § 436, note 3. The point was not strenuously urged upon the argument, and we think the Court below committed no error in allowing the question to be put, or in allowing the reference to the former testimony of the witness.
One Matthias Rouleau who had been a gardener in Beaubien’s employment for several years, but left him some time before his death, was permitted to testify to a conversation held with Beaubien shortly before his death, in which the deceased expressed regret at having married, and stated that he was not master at home; that he was afraid of his wife, and was compelled to submit to her demands, or otherwise there would be trouble in the house. The issue presented for trial involved questions of capacity and of undue influence. It has been held generally that the declarations of a testator concerning his feelings in regard to different persons are the best evidence of his real sentiments, where they are made sincerely and unreservedly. His feelings towards his wife, and
Dr. Smith, who had testified in his direct examination to the valid- execution of the will, and the capacity of the testator, was asked whether he had not, on a certain occasion, at Mr. Beaufait’s house, had a conversation with George Moran and one Page, referring to Beaubien’s death and will, and declaring that if the family should follow it up they would break the will, for it was not worth a snap of his fingers. This he denied. Moran was called upon the stand and asked whether, on that occasion, Smith made, the remark mentioned concerning the will. The question being objected to was discussed, and withdrawn to introduce some preliminary inquiries which were objected to, and which related to the preliminary conversation touching Beaubien’s death, and whether Moran had any conversation with Smith that night about the will, Smith having denied any conversation with him on any subject. The grounds of the objection were not given, but it is [now claimed that the conversation, if had, was immaterial. We think the contradiction comes prop
The testimony showing Mrs. Beaubien’s abuse of theBeaubien family, when she ascertained the contents óf a former will making provision for them, and her quarrel with her husband about it, was properly received. In all cases of this character it has been customary, as the reports.
The principal question argued upon the hearing related to the kind of evidence admissible to prove the extent of the testator’s capacity, and the witnesses competent to give their opinions on the subject. We have had occasion in White v. Bailey, 10 Mich. 155, and Evans v. People, 12 Mich. 27, to refer to some features of this inquiry, but the
It was necessary, therefore, in the present case, for the jury to bo made acquainted, as nearly as possible, with the precise condition of the testator, in order that they might judge of it as they would have done had they personally known all about it. In all testimony the object of the law is to enable the jury to know all that the witness knows, which is pertinent to the issue; and every rule of evidence is designed to secure this end. It is expected of jurors that they have the same powers of judgment possessed by ordinary men, but not the special knowledge belonging to certain occupations or studies. And
The law has always required mental capacity to render ■persons responsible for contracts, or crimes, as well as able to make wills, although not applying precisely the same rules to the three subjects.. In criminal cases, the jury, from time immemorial, have been obliged to pass upon the capacity of the accused. In civil cases, persons dealing with their neighbors have been held bound, generally, to form their conclusions of capacity at their peril, where they have had means of observation: — Beavan v. McDonnell, 26 E. L. & Eq. 540. It is only in modern times that medical science has been brought to bear upon these matters. Except in obscure cases of disease, or those pecu„ ■liar cases where the conduct and appearance of the alleged unsound person present nothing unreasonable or unusual, we have the same means — whether perfect or imperfect —-which have always been had, of forming an opinion without medical aid, and no better.
The general stock of knowledge among unscientific men is now, as always, derived from common observation ■and experience, and, whether adequate or inadequate for all purposes, it certainly serves for most. This is especially ■true in regard to cases of natural decay from age or weakness. The appearances and effects of this decline are familiar to all mankind. And, while it is well that new means of information may be attainable, the law does not generally exclude any class of men from being witnesses because there may be found wiser men, or more aecute and sagac, ious observers.
Lord Sale remarks that “physic and salves were before licensed physicians and chirurgeons” (1 Hale, P. C. 429); ■and it is equally true that men were acquainted with the ordinary manifestations of mental weakness and unsoundness,
The most common controversies, involving questions of mental condition, arose in criminal trials and prosecutions. And it is perhaps significant that questions of evidence on this subject have rarely been reported until very recently even in these. Had the tests of mental soundness been technical, and the inquiries to the witnesses been governed by peculiar rules, it can not be doubted that the books would have preserved some trace bf the practice. But enough appears incidentally, to furnish sufficient light for our guidance. By the rules of the criminal law a person could not be held liable for criminal acts committed during mental unsoundness, nor could any step whatever be taken against kini during the incapacity, whether it existed at the time of the offense, or was brought on after-wards. We have accordingly inquiries made, not only upon trial, but also upon arraignment and after conviction, as well as the special inquisition made for purposes of guardianship.
In the latter the condition of the person was to be determined • by personal inspection, as well as by the testimony of witnesses; while, upon appeal to the King in council, the personal examination appears to have been chiefly relied on: — Fitzh. Nat. Br. 232, 233; 1 Hale, P. C. 33. And personal examination and inspection has always been deemed of the utmost importance. A private examination by the chancellor has been of very frequent occurrence, and has often been entirely satisfactory. In all of these proceedings, while testimony is generally necessary, and in many cases scientific testimony is of the utmost value, yet the law has always regarded the subject as
In ex parte Smith, 1 Swanst. 7, it is said that where the lunatic is unfit to appear before the jury, and they can not all go to him, one or two go and examine, and report to the rest his state and condition. And in the Matter of Russel, 1 Barb. Ch. 38, the importance of having the jury see the alleged lunatic is declared in very strong terms, the chancellor expressing a determination to require his production on pain of punishment to those neglecting it. Accordingly Lord Hale says, “if a lunatic be indicted of a capital crime, and this appears to the Court, the witnesses to prove the fact may and must also be examined, whether the prisoner were under actual lunacy at the time the offense was committed.’’ And the question whether a person was non compos mentis, so as to excuse him from trial, or from punishment on conviction, is recognized as in the determination of the Judge, although Hale recommends an inquest in all doubtful cases; and this is now the general practice in England: — 1 Hale, P. C. 35. According to him the Judge may even stop the trial, and discharge the petit jury, on discovering insanity; but the more common practice has been to direct an acquittal. In the case of Regina v. Goode, 7 A. & E. 536, where a prisoner was brought for arraignment into the Queen’s Bench before all the Judges, and it was proposed to call a medical man before the' jury of inquest to testify concerning his present state of mind, the Court said it was unnecessary, and the jury were instructed to decide from what - had taken place in their presence, and found him insane. In the celebrated case of Regina v. Oxford, 9 C. & P. 525, where the prisoner was indicted for a treasonable attempt to murder the Queen, his insanity was proved by his relatives and other unprofessional witnesses. The report says, “The most material evidence as to the prisoner was given by an inspector of police, named Ted-
The next class of cases requiring attention embraces those raising the question of testamentary capacity directly. That the English ecclesiastical courts allow witnesses of all kinds to testify to their opinions, concerning persons whom they have seen and known, is not to be questioned. And the fact that these investigations are much more frequent there than elsewhere, is a reason why the results of their experience should be deemed of no small value. But, inasmuch as some authorities referred to on the argument seem to intimate that those courts have introduced new and unsound rules of evidence, it may be proper to examine into the decisions and practice of other tribunals. But, at the same time, it must be remembered that we are now considering a case which was appealed from a probate court, whose practice is largely borrowed from that of the English' ecclesiastical courts; and it is not easy to perceive why testimony allowable in the lower court should be shut out on the hearing above.
It has never been disputed that the subscribing witnesses may testify concerning the actual mental condition of the testator, as freely as medical witnesses who speak from personal acquaintance and investigation. The reasons given, by those courts which confine such testimony to these witnesses, are based upon the assumption that they are called in for the special purpose of scrutinizing the capacity, as well as the acts of the testator. It is matter of evei’y day experience that wills made in extremis must usually be witnessed by any- persons who are conveniently to be found; and it is not often that much care is taken to procure educated or peculiarly intelligent witnesses; nor is their attention in fact very closely addressed to the question of capacity, beyond what
Referring, as before, to the English practice outside of the ecclesiastical courts, we find the commonest examples of the investigation of mental capacity in suits in chancery, brought to establish or set aside wills and devises. In these cases it is quite common to have the testimony perpetuated; and, whenever there is any serious controversy, an issue of devisavit vel non is sent down for trial. The rule in chancery requiring the examination of all the subscribing witnesses is thus explained by Lord Camden: Sanity is the great fact the witness is to speak to when he comes to prove the attestation; and that is the true reason why a will can never be proved a3 an exhibit viva voce in chancery, though a deed may; for there must be liberty to cross-examine to this fact of sanity. From the same consideration it is become the invariable practice of that Court never to establish a will unless all the witnesses are examined; because the heir has a right to proof of sanity from every one of them whom the
| Lord Benman, and Coleridge and Biitleddle JJ. concurred in rejecting them, admitting, however, that the
So far as the form of the question is concerned, it has been customary in all the courts to allow it in such a way as to test the capacity with reference, as near as may be, to the very act or kind of act in dispute. In Rex v. Pritchard, and Pex v. Dyson, before cited, this appears very clearly, as it does also in the cases above-
From the best examination which it has been possible for us to make of the English practice, we are satisfied that in all of the courts, civil and criminal, as well as in the ecclesiastical courts, the practice concerning proof of mental condition is the same, and permits all who have had means of observation to testify concerning the existence and measure of capacity with reference to the matter in controversy; while it does not permit those who do not testify from personal observation to give a direct opinion of capacity, except upon some given hypothr esis. In every case the witnesses who speak from their own observation are expected to describe, as well as they can, what has led to their conclusions, as well as their means of observation. But the cases referred to show that, in many instances, the results of very limited observation have been permitted; — the safeguard of cross-examination and a comparison of testimony being deemed sufficient to prevent any mischief from the inperfect knowledge of single witnesses.
In the United States, the authorities all require the witness to state such facts as he can, in order that the jury may be better enabled to determine the value of his opinions; — stress being of course laid upon his opportunities of judging. In many cases the facts which can be
The authorities in this country have passed directly upon points which in England have been settled by unbroken practice; and we find, therefore, that here the admissibility of non - professional testimony has been discussed very fully. The general doctrine is, that all witnesses speaking from observation must, as far as possible, state
The cases of Clary v. Clary, 2 Ired. 78; Clark v. State, 12 Ohio, 483; Potts v. House, 6 Geo. 324; Dunham's Appeal, 27 Conn. 192; Norris v. State, 16 Ala. 776, and Powell v. State, 25 Ala. 21, are so full and satisfactory in their reasoning upon the admissibility of opinions from all witnesses speaking from personal knowledge, that nothing can be added to enforce them. To the same effect
The only remaining question is, in what form it is. allowable to introduce evidence of capacity. It was objected on the hearing that a direct answer that a person is insane,, or incapable of doing one thing or another, is not receivable because usurping the office of the jury. The only authority relied upon is a statement in Judge Selden’sopinion in Dewitt v. Barley, 17 N. Y. 340, that the decision of the same court in the same cause, in 9 N. Y. 371, was only binding upon that question, and not upon the general doctrine of the inadmissibility of opinions for any purpose. But while Judge Selden relies upon this distinction to avoid a conflict with a reported case, be distinctly approves of the dissenting opinion of Judge Denio, which demonstrates the propriety of just such inquiries; and the whole of his reasoning is aimed at overthrowing the position of the majority opinion on the former hearing. The-opinion of Judge Denio, in 9 N. Y., refers to numerous; cases in which the inquiry was made and answered distinctly. And in Delafield v. Parish, Judge Selden quotes, as quite conclusive, the answers of some witnesses coming-directly within the supposed objection. Mr. Lord says, in regard to the testator’s condition at the date of the second codicil, aI had no doubt, and have not any, of his entire' capacity to understand what he was doing, and the effect-of it.” The same witness speaks as to the testator’s capacity to make the third codicil, “In my judgment it
We think that there, can be no impropriety in allowing the opinions of the witnesses upon any measure of capacity which is calculated to aid the jury in coming to a conclusion. What we loosely term opinions and impressions are declared by many of the authorities to be no more nor less iban statements of fact, differing from ordinary statements only because of peculiarity, of the subject. When a witness is asked what is the size or color of a certain object, or whether the evening is light or dark, clear or cloudy, the oniy difference between the impressions from which he speaks and those relied on in cases of capacity, .is that they are less opgn to difference ‘of opinion among observers. Evidence concerning personal identity _ must always be matter of opinion, but it is always received in a. positive form. So may be evidence of value, . of hand writing and the like,. which are purely matters of opinion. Whenever the facts are such that the jury can not form, an unaided opinion, it is essential that the opinions which they receive should enlighten them upon the exact point in ’ controversy, if possible, for otherwise their verdict will be conjectural. The course of decision upon this subject is so complete and uniform that we must accept is as the practice found safest by experience. Juries are1 not bound to accept opinions unless they consider them well, founded, and -fee do not find in practice that they are often misled by the opinions of eye witnesses who approve themselves sensible and candid.
We think there is no error in the rulings.
Judgment affirmed.