189 Tenn. 93 | Tenn. | 1949
delivered tbe opinion of tbe Court.
This is a will contest in which Martba Gene (Halloran) Hammond, tbe only child of Frank Halloran, contested tbe will of her father upon tbe grounds of mental incapacity to make a will and undue influence by her stepmother. There was a trial to a jury in tbe circuit court upon these issues resulting in a verdict against tbe will.
The contestant filed her petition for the writ of certio-rari in this Court, which was granted because of the importance of the legal question involved. The issues have been fully and ably presented to the Court in oral argument. While the assignments of error appear to involve only factual questions we think it important to a correct decision of the case that consideration be given to certain legal conclusions to be drawn from the facts. Another vital if not the determinative question is whether or not the testimony of an expert medical witness as to the testator’s alleged unsoundness of mind is of such probative value as will justify the submission of that issue to the jury.
The Court of Appeals dealt at length with the factual issues, quoting the testimony of numerous witnesses bearing upon the testator’s condition of mind both before and at the time the will was executed and reached the conclusion that Frank Halloran was fully capable of making the will now in dispute, and that it was not induced by the undue influence of his wife, Mrs. Marie Foreman Halloran.
The assignments of error are five in number, but they present only the two questions above mentioned. The Court of Appeals is taken to task, quite respectfully of course, as to the court’s interpretation of the evidence, as well as erroneous conclusions of law. We cannot undertake to respond to each and every contention or
Tbe testator, Prank Halloran, was married four times, and twice divorced. By bis second marriage-be bad one child, wbo is tbe contestant of tbis will. Tbis child was about three years of age when she came to live with testator and bis third wife, Mrs. Cordelia Halloran. Tbis was in 1913 when testator was 32 years of age and bis bride (Cordelia) was a “childless widow of twenty-eight.” Prank and Cordeba Halloran lived happily together for seven years. It appears that ’this child, Martha Gene Halloran, was a source of great joy to Cordelia. They were devoted to each other. The child had never known her own mother and she called Cordelia “Mother.” In 1922 the wife filed a suit for divorce against her husband upon' the grounds of drunkenness and cruelty but withdrew it upon his promise to reform. He had become prosperous in the meantime and in 1930 went to Europe with his daughter, Martha Gene. Upon his return he advised his daughter that he did not intend to live with the daughter and Cordelia any longer. Por a number of years thereafter they lived apart. On October 20, 1933, a second suit for absolute divorce was brought and a decree obtained. The court awarded her $250 per month, “for and during her natural life, or until she remarries.” She was given other property which is not material to the case before us. Following this divorce Prank Halloran began to insist that his daughter should leave her' stepmother and come and live with him. He had been drinking whisky to excess since his return from Europe and the daughter refused his request. We think her refusal could be attributed to her affection for her stepmother and also because her
The will now in contest was duly executed on October 5,1944, and witnessed by J. C. Lancaster and Mrs. Helen Dorrough. The testator died of diabetes, at the age of sixty-five years, in June of 1945. It is unnecessary to recite the contents of the will except to call attention to the fact that no mention is made therein of his only daughter, Martha Gene, or her child. He left them nothing. He made provision for the continuation of the monthly payments of $250 to his former wife, Cordelia Halloran, in accordance with the divorce decree. Following this provision in the will there appears under ‘‘Item 5” the following: “All of the rest and residue of my estate of every kind and character whatsoever, real, personal, and mixed, I give, devise, and bequeath unto my beloved wife, Marie Foreman Halloran, to be hers in fee simple absolute.”
The estate of Frank Halloran consisted of stocks and bonds in various corporations, and especially stock in the “Halloran Company”, and its total value is estimated by contestant at about $200,000. The basis of the present contest is that from 1930 until the testator’s death he was a confirmed alcoholic, and that as a result
Was the Court of Appeals in error in holding that there was no material evidence to sustain these contentions? Counsel for both the petitioner and respondents devote considerable argument to a discussion of the probative value of evidence in contested will cases and particularly as to the quantum of proof that is necessary to carry the case to a jury on the issue of mental incapacity to make a will. They cite a number of cases wherein the rule is dealt with. But we preter-mit any discussion of these decisions because in our opinion the same rule applies in contested will cases as in other civil cases. In other words the question of testator’s alleged insanity “is to be submitted to the jury on the preponderance of the evidence with consideration of the presumption in favor of sanity.” Pierce v. Pierce, 174 Tenn. 508, 127 S. W. (2d) 791, 795; McBee v. Bowman, 89 Tenn. 132, 14 S. W. 481; Pettitt’s Ex’rs v. Pettitt, 23 Tenn. 191. The right of the contestant to have the issue of mental incapacity submitted to the jury must rest upon substantial or material evidence at the time the will was made and not upon a “scintilla” or “glimmer” of evidence.
The contestant undertakes to minimize the force and effect of the testimony of the two witnesses to the will by saying that their acquaintance and association with Frank Halloran was very limited, that is, to business
These witnesses were positive, unequivocal, in their testimony that the testator was sober on the day the will was executed and that there was no evidence of unsoundness of mind. It furthermore appears that the testator had made a previous will and placed it in the bank for safekeeping. He had Mr. Lancaster get it out of the vault and the two compared it with the will which is now in controversy. The latter will appears to be in good form. It was evidently drawn by an experienced attorney. Now it is settled by all the authorities that the will itself may be considered along with other evidence in deciding the issue of mental incapacity. When we examined the- contents of this will it shows beyond question that the testator knew all about his property, of what it consisted as well as its value. Moreover, it shows that he was especially mindful of his contractual obligations to his former wife, Cordelia Halloran, as well as the claims upon his bounty by his then present wife. The will itself proves without any possibility of doubt that the testator possessed at the time the will was made, two qualities of mind necessary to make a valid will, to wit, knowledge of his property, kind and value, and also
The contestant argues with much zeal that the testator “in the latter years of his life turned over all his property to the Union Planters Bank to manage, was engaged in no active business and merely gave perfunctory approval of the conduct of his affairs by the bank” and cite the testimony of Mr. J. C. Lancaster in support of this insistence. The Court of Appeals made response to the foregoing as follows: “We do not think Mr. Lancaster’s testimony supports that proposition. He states that he had handled the testator’s matters for him since about 1938; that he had been familiar with his affairs before that time; that he consulted with Mr. Halloran on the buying of different securities and the revenue produced from those securities; that Mr. Hal-loran had sole control and ownership of the securities and it was necessary to have his approval on every transaction; that on every transaction they discussed the investment, what was offered for approval and different conversations were necessary leading up to the purchase and sale of them; that there were numerous transactions during the year; that he usually made a written recommendation to Mr. Halloran of everything that was done; that Mr. Halloran would look it over then call him once or twice on every transaction; that Mr. Halloran would give him a written authorization to buy or sell whatever was finally decided on.”
We think the record fully sustains the above statement of fact. Our conclusion is that the testimony of
The sum and substance of all the testimony on behalf of contestant is that for a number of years prior to the making of his will he was a confirmed alcoholic. The witnesses were numerous, including his disinherited daughter, Martha Gene. No one can doubt from an examination of the record that at times he was guilty of unseemly conduct toward his daughter and others as a result of drunkenness. And we think it is fair to say that he continued to drink until about a year before the will was executed. But it cannot be said that he was always drunk and unruly. In fact there is abundant evidence that his conduct when sober was that of a gentleman. The contestant stated that the last time she saw her father in 1944 he was pleasant and agreeable. The Court of Appeals quotes the contestant’s husband as saying “that when sober the testator was an affable gentleman.” He started drinking in the afternoon and often continued it into the late hours of the night. He was called a “night drinker.”
There is no question but that for some time prior to the execution of the will the testator had become estranged from his daughter. As a result of this conduct it is argued that he had an insane delusion regarding the daughter and it was for this reason that he disinherited her. But there is no evidence of an insane delusion such as would invalidate this will. All the evidence shows that he had an intense hatred for his former wife, Cordelia, based upon her suit for divorce and alimony.
In Gass’ Heirs v. Gass’ Ex’r, 22 Tenn. 278, the testator was supposed to have had an insane delusion upon the subject of what his status would be in the after life. In holding that it was no ground to invalidate the will. Judge Turley said: “But who shall say that the opinion avowed by the testator, as to futurity, is a delusion? Delusion is defined to be, when a patient conceives something extravagant to exist which has no existence but in his own heated imagination, and, having so conceived it, is incapable of being reasoned out of the conception (Shelford on Lunacy, 40), as the fancying things to exist which can have no existence and are impossible, according to the nature of things, as that trees walk (Shelford, 293), the magnifying slight circumstances beyond all reasonable bounds, as if the parent of a child, really blameable to a certain extent in some particulars, takes occasion to fancy her a fiend, a monster, an incarnate devil. ’ ’
We know of no case wherein we have departed from this well settled principle. When we apply the rule to the facts of the instant case there appears nothing upon which an insane delusion can be founded. If he left his
Numerous witnesses called to testify for tbe contestant expressed tbe opinion that tbe testator was of unsound mind. They bad known him socially and based their opinion upon bis conduct while under tbe influence of liquor. But no witness could testify to bis state of mind when tbe will was made. Some of them testified that there was a change in bis life and didn’t think be was normal when drunk, argued witb friends and was always obstinate, full of ego, bad patented a furnace that was no good. He on one occasion thought a crooked limb in tbe grass was a snake; called friends over tbe phone late in tbe night; was ugly and overbearing to bis wife and daughter when drunk. But we find no contradiction of tbe proponent’s proof that be was sober and of sound mind when tbe will was executed. Tbe evidence in support of tbe contestant indicates nothing more than what is generally expected of man under tbe influence of liquor. Lay witnesses may express an opinion as to tbe insanity of tbe testator based upon “facts and acts” which show a mental condition, as was done in tbe instant case, but their conclusion from these facts does not necessarily create an issue or prevent tbe Court from finding tbe true condition as a matter of law. Rogers v. Hickam, Tenn. App., 208 S. W. (2d) 34, 37; Fitch v. American Trust Co., 4 Tenn. App. 87, 95, 101, 102; Melody v. Hamblin et al., 21 Tenn. App. 687, 695, 115 S. W. (2d) 237; Cude v. Culberson, Tenn. App., 209 S. W. (2d) 506, 515.
The final crux of the controversy is resolved in petitioner ’s contention that the opinion of an expert witness, based upon a hypothetical question, in addition to the lay witnesses, constitutes substantial and material evidence sufficient to take the case to the jury on the question of mental incapacity.
In formulating the question to be answered counsel for the petitioner undertook to state the substance of acts and facts upon which the lay witnesses had based their opinion. The witness, Dr. Carrol C. Turner who it is claimed was a qualified psychiatrist, answered that in his opinion the testator was of unsound mind and that
No unbiased mind could conclude from his evidence that as a matter of law the testator was lacking in testamentary capacity. While medical science would no doubt classify a “chronic alcoholic” as “lacking in normal attributes”, and one who “lacks judgment” it does not follow that he is without mental capacity to execute a will. “The law does not require that persons shall be able to dispose of their property with judgment and discretion in order to make a conveyance. It is sufficient that they understand what they are about.” Sizer’s Pritchard on Wills, Section 99; Fitch v. American Trust Co., supra.
When all the evidence introduced by the contestant is considered in its most favorable light as showing a lack of testamentary capacity we find that it fails to make a jury question. No witness testified to any act or fact indicating that the testator was of unsound mind when
Contention is further made that the will is unfair and unnatural and that this is evidence of mental incapacity to make a will. The case of Farmers Union Bank v. Johnson, supra, holds directly to the contrary and upon this case and authorities cited therein the contention is overruled.
The final question for consideration is whether there is any evidence of undue influence such as
The assignments of error are overruled and the judgment of the Court of Appeals is affirmed.