211 Mich. 370 | Mich. | 1920
William Cochrane was a resident of Lapeer county all his life. He had been married but his wife died some two dr three years after their marriage, leaving no children. He lived oh, and worked his father’s farm where he was born, about two and one-half miles from Almont, until his father’s death when he bought out the other heirs and continued on the place. He was a successful farmer, a director in
Defendant’s counsel are correct in their contention that a trial judge may not direct a verdict on the ground that the weight of the evidence greatly or clearly preponderates in favor of one side or the other. But we do not understand the trial judge to have directed the verdict in this case for such reason. While he did state to the jury that if the jury were to find that Mr. Cochrane was incompetent he would feel obliged to set such verdict aside on his own motion, he unequivocally held that there was no evidence justifying him in submitting the case to the jury and for that reason he directed a verdict sustaining the will. With this conclusion we are in entire accord.
Mental Incompetency. There is no claim in the case that deceased had by reason of old age or other infirmities broken down mentally. The undisputed testimony discloses him to have been a man of vigorous mentality and strong will power, a thrifty successful farmer and business man. What is claimed is that the cancerous growth caused him to suffer great pain, to relieve which opiates were administered and that lie was not competent when suffering from such pain or when under the influence of the opiates or for some time thereafter. There was testimony that in the afternoon and evening of the day before the will was executed he suffered considerable pain, that he was irritated, used profanity, and complained of the treatment or want of it by the nurse and physician, and one witness who saw him at this time expressed the opinion that he was not competent to transact business. The trial judge in his charge thus expressed himself as to the effect of this testimony:
*374 “The fact that he may have been incompetent on the afternoon of the 13th would throw no light on his condition on the morning of the 14th unless his condition on the morning of the 14th was the same or approximately as they were on the afternoon of the 13th. It appears that when he was in a paroxysm of pain that he may and probably was not competent to execute a will, but it was because of the effect that the paroxysms of pain would have on him at that time.”
Deceased at times suffered considerably from pain. But these paroxysms of pain were temporary. In the case of Pierce v. Pierce, 38 Mich. 412, this court had under consideration the question of intoxication of the testator and it was there said:
“And we are further of opinion that inasmuch as it is a temporary condition, the testimony must be confined to the time involved in the transaction in controversy. If Pierce was not overcome by drunkenness when he made his will, it is not important what his condition was on other occasions.”
See, also, the recent case of In re Weber’s Estate, 201 Mich. 477.
H. M. C. tablets consist of 1/100 of a grain of hyoscin, % of a grain of morphin and 67/100 of a grain of cactin. They are administered hypodermically to relieve pain. One witness called by defendant, one of the nurses who assisted in caring for deceased, testified that it makes the patient “do funny things” and that it so affected deceased. At-first this witness testified that she at one time administered H. M. C. to deceased in the morning and he did not fully recover from the effects until after supper; but she later, and after consulting the chart she kept, admit-ed that she was mistaken and that she never administered this treatment to him in the morning. The medical testimony which is undisputed is that the effect of H. M. C. wears, off in three or four hours. The
Undue Influence. Contestant called at the hospital while his. uncle was there and on several occasions was permitted to see and visit with him. There were three occasions, he says when he was not admitted to the sick room. But the doctor in charge explains the reason for not admitting him on these occasions. Friends were also admitted. Testator’s brothers and sisters also called to see him, some more frequently than others. But undue influence cannot be predicated upon opportunity alone. The fact that one has the opportunity to exercise undue influence is not evidence that it is exercised. Severance v. Severance, 90 Mich. 417; Blackman v. Andrews, 150 Mich. 322; Noble v. Hunter, 195 Mich. 713. But contestant’s counsel say that the brother David made the memorandum and took it to the attorney and had the will drawn, and they argue that this is the equivalent of, drawing the will himself; they therefore say that a presumption arises that there was. undue influence. We need not determine whether the facts of the instant case bring it' within that line of cases where a beneficiary draws the will and where a presumption of undue influence arises because if such presumption exists it is a rebuttable one. Bush v. Delano, 113 Mich. 321; In re Bailey’s Estate, 186 Mich. 677; and in the instant case the denial of undue influence is direct, positive and credible and is undisputed by any evidence, direct or circumstantial. In the recent case of Gillett v. Traction Co., 205 Mich. 410, Mr. Justice KUHN, who wrote for the court, fully discussed the question of the effect to be given a presumption where it is rebutted by the proofs.. It was there said:
“It is now quite generally held by the courts that a rebuttable or prima facie presumption has no weight*377 as evidence. It serves to establish a prima, facie case, but if challenged by rebutting evidence, the presumption cannot be weighed against the evidence. Supporting evidence must be introduced, and it then becomes a question of weighing the actual evidence introduced, without giving any evidential force to the presumption itself.”
Applying this rule to the instant case the presumption which we are asked to indulge in falls before the direct, positive and credible testimony given in the case. The presumption, if one exists, was all that contestant had to make even a prima facie case. There was no evidence, circumstantial or otherwise, which made a case of undue influence. When this prima facie case, this presumption, was met and challenged by the rebutting evidence, the presumption failed and could not be weighed against the evidence. The contestant’s case being then stripped of the presumption, there was nothing left of it for the jury to consider. The trial judge correctly held that contestant was not entitled to take the verdict of the jury on the question of undue influence.
A proper disposition of the case was had in the trial court. See Severance v. Severance, supra; Blackman v. Andrews, supra; In re Ganun’s Estate, 174 Mich. 286; In re Williams’ Estate, 185 Mich. 97; In re Ferris’ Estate, 191 Mich. 140; In re Wynn’s Estate, 193 Mich. 223; In re Weber’s Estate, supra.
The judgment is affirmed.