123 N.W. 276 | N.D. | 1909
Lead Opinion
This litigation arose in the county court of Williams county, and involves the validity of the last will of one August M. Hedderich, deceased. Plaintiff and respondent, the widow of the deceased, and who claims to be his sole heir and legatee, filed in such county court a petition praying for the probate of such will. The appellant, who claims to be the lawful issue of an alleged marriage between the deceased and one Pazutah, an Indian woman, known as “Medicine,” was permitted to intervene in such probate proceedings. By his petition in intervention appellant alleged the fact of such marriage on July 1, 1879, and that he is the lawful and sole issue thereof, having been born on March 25, 18&0. He also alleged, in substance, that deceased was induced to make such will through the undue influence of others, by the terms of which will he was wholly omitted and his name was not mentioned as a legatee, although, as alleged by him, he was the sole surviving heir at law of such testator; also, that at the time of making such will the said testator was of unsound mind, and not mentally capable of making a will or of transacting ordinary business, and praying, among other things, that such will be refused probate, and that he be decreed to be the sole heir of the 'decedent. The respondent answered, putting in issue all of the allegations of the petition, except the fact of the execution of the will by the deceased and the date of defendant’s birth. The issues thus framed were duly adjudicated in the county court, resulting in a judgment in plaintiff’s favor upon each of such issues. Upon appeal to the district court, a) jury trial was demanded and had, which also resulted in a judgment in plaintiff’s favor from which judgment this appeal is prosecuted.
Certain questions of practice are presented which require brief notice. After the entry of judgment, a motion for new trial was made embracing all the grounds urged on the appeal from the judgment. Such motion was denied, and it was the evident intent of appellant’s counsel to appeal both from the judgment and from the order denying such motion. It is very apparent, however, that the
This brings us to a consideration of the questions presented on the appeal. Ninety-four alleged errors are assigned in appellant’s brief, but, for reasons herein stated, it is necessary to notice -only a few of them. Those relating to alleged insufficiency of the evidence and to the order denying appellant’s motion for a new trial are, in view of -our ■conclusion that no appeal was taken- from .such order, concededly unavailing t-o appellant. Assignments 1 to 10, inclusive, and the last assignment being numbered 94, are thus disposed of.
Assignments numbered 11 and 12 are deemed abandoned, as -they are not discussed in the brief.
Assignments numbered 26 to' 31, inclusive, 34, 35, 37 to 52, inclusive, 54, 58, 61, 62, 64, 65 and 66 relate to rulings -on the admission of testimony relative to the alleged marriage of deceased to the Indian w-oman Medicine and the paternity of appellant. Such
Assignments numbered'67, 68 and 85 are concededly unavailing, as they are predicated upon alleged erroneous instructions to the jury, and no exceptions were taken to such instructions.
Assignments numbered 69 to 84, inclusive, relate to the action of the trial court in directing the jury to answer certain qúestions in the special verdict, but these assignments are expressly waived by appellant’s counsel, and need not -be considered.
Assignments numbered 87 to 93, inclusive, are based upon the action of the trial court in making certain findings of fact and order for judgment; such findings covering questions 'submitted to the jury by the special verdict and unanswered by such jury. In view of the facts which were found by the special verdict, the facts thus found by the trial court were wholly immaterial; hence their finding was nonprejudicial to appellant. Every fact material to the controversy was embraced in the special verdict as returned by the jury. In addition to the facts relating to the execution of the will, over which there was no dispute, the jury by the special verdict found that the execution of such will was the free act and deed of the testator; that such will was not executed under or in consequence of any undue influence exerted upon the mindi of the testator by Grace D. Bedderich or any other person; that the omission to provide for the interpleader in such will was intentional upon the part of the testator; and that the testator, at the time he executed the will, was of sound mind. If the special verdict as thus returned is regular, and was properly returned, it effectually eliminates all other questions submitted to the jury in such special verdict as immaterial. Had the jury answered all the other questions in appellant’s favor, such answers would not have changed the result in the least particular. In the light of the facts found, it was manifestly immaterial whether the deceased married the Indian woman Medicine or not, and it was likewise immaterial whether appellant was the lawful issue of such marriage. Appellant’s counsel contend, among other things, that the special verdict was incomplete because question 10 was not answered by the jury. By the answer to this question the jury was asked to say whether the omission of the testator to provide for the interpleader in his will was caused by or in consequence of any undue influence exerted upon his mind by any person, but we
Appellant’s contention that a failure of the jury to agree upon a material question amounted to a mistrial is no doubt sound, but it has no application in view of our conclusion, as -above stated, that the jury made answers to all the material and essential facts embraced in such special verdict.
The only assignments, therefore, which we are required to consider, are those relating to the rulings of the trial court in the admission of -certain evidence of nonexperts as t-o the mental condition of the testator, being assignments numbered 13 to 17, inclusive, -and 31 and 22, and assignment numbered 86, which -relates to the lower court’s action in directing -the answer to the twelfth question in the special verdict. The latter assignment presents the most vital question in the case, and will be considered first.
Question 12 is as follows: “Was the deceased, August M. Hedderich, of sound mind when he executed the said will?” After the jury had -deliberated for some time, they were returned into -court, and announced that they were unable to agree as to the answer to question 12, as well as numerous other questions. Thereupon respondent’s -counsel moved the court to direct the jury to answer question 12 in the affirmative, which motion was granted -over -defendant’s objection and exception. Appellant’s counsel strenuously urge that such ruling was prejudicial error, as it deprived defendant of his right to a jury trial of such issue, and that the inability of the jury to answer such question from the evidence of necessity resulted in a mistrial. Counsel are no -doubt correct in their -contention, provided the record discloses a substantial conflict in the evidence upon the question of the -testator’s mental capacity at the time -of the execution -of the will. The fact, however, tha-t the jury was una-ble to agree upon the answer t-o be made to such interrogatory, or that the attitude of the trial -court in submitting such question disclosed that he at first considered it a question properly for the jury, is in no manner conclusive of the fact that there was such a conflict in the testimony as to require a submission of such issue to the jury. If, as a fact, the -record is destitute of evidence from which the jury might rightfully find that the testator at the time
The first three testified as to their employment in the hotel at Wi'lliston where the testator and his wife boarded for several years, and that Mrs. Hedderich was in the habit of assisting her husband at the table in cutting his meat, etc., but on cross-examination they each testified, in effect, that the testator’s mind was perfectly normal so far as they observed. Dr. Ringo was introduced as a medical expert, and upon hypothetical questions he gave it as his opinion that the testator was suffering from general paresis. This witness graduated at a medical college in Chicago six years prior to giving his testimony, and he stated that he would not set himself up as a specialist on brain diseases. He had no acquaintance with the testator, and never met him. Among other things he testified: “From all the evidence here before me, in September and the fall of 1903 I think Mr. Hedderich was able to understand a business transaction. All I know is the evidence. I never saw Mr. Hedderich.” We have examined the documentary evidence relied on, and find nothing therein from which the jury could rightfully say that the testator was not on September 14, 1903, fully in possession of his mental faculties. As we view the evidence relied on by the interpleader, it is entirely insufficient to require a submission of such issue to the jury, even when considered apart from the other evidence bearing on this question, which other evidence is well nigh conclusive as to the testamentary capacity of the testator at the date of the execution of the will. Every witness acquainted with the testator in his lifetime, and who testified upon the subject of his mental capacity, gave
Upon the question of the weight to be given the documentary evidence in cases such as this see Moore on Fact-s, section 14; Wilcoxon v. Wilcoxon, 165 Ill. 454, 46 N. E. 369. Even conceding the truth -of all that is claimed -by the interpleader with reference to his heirship, it would not follow that testator’s action in -omitting him from the will was under the peculiar facts at all unnatural or unreasonable, and, even if unnatural or unreasonable, such fact or facts, standing alone, would be insufficient to -establish testator’s lack of testamentary capacity. The rule is well established that it is only where there is other -evidence of mental incapacity that an unnatural and'unjust disposition is a circumstance which, taken in' connection with such other evidence, may tend to show testamentary incapacity. See numerous cases cited in -the note to Morgan v. Morgan, 13 Am. & Eng. Ann. Cas. 1044-1046.
The assignments relating to the rulings on the admission of the: nonexpert testimony as to the mental -condition of the testa-tor require but brief notice. Such rulings were not prejudicial, even if erroneous, as, if -such testimony should -be entirely eliminated, the result must be the same- — a total failure on appellant’s part to establish affirmatively the issue of mental incompeten-cy of the testator.
Rehearing
ON PETITION FOR REHEARING.
A petition for a rehearing has been filed, in which it is strenuously contended that the issue as to the paternity of appellant is inseparably connected with that of whether the testator intentionally omitted to provide for him in the will, and that a finding against him as to the latter issue can be given no effect without also a finding in 'his favor as to the former. A very plausible and ingenious argument is presented in support of such contention, but, after mature deliberation, we are unable to concur in the views of counsel. It is no doubt true, as contended, that the omission referred to in Rev. Codes 1905, section 5119, relates to the omission to provide for any children or for the issue of any deceased child of the testator, but does it necessarily follow on this account that an intentional omission of the petitioner cannot be shown as a fact without first showing that he is a child of the testator ? How is the latter fact at all material if, in the light of the facts, it .appears that the testator, regardless of whether or not petitioner was his son, entertained no purpose or intent of recognizing him in his will ? We think it must be said from the evidence that, whether interpleader was or was not the son of the deceased, it -was the testator’s intention to exclude him from any participation in the proceeds of his estate. In answering question 11 of the special verdict, the jury must have had in mind the contention of petitioner that lie was a son of the testator as well as the denial of such fact by the testator. The primary question involved in the case was: Who was entitled under the will to receive the estate of deceased? The relationship of the petitioner to the testator was but a minor or incidental question.
The most that can be claimed by appellant is that, if the jury had found in 'his favor upon the question of paternity, such finding, together with the fact of his omission from the will, would have raised a mere prima facie presumption, contrary to the intent which the language of the will expresses, that the omission was not intentional. We are unable to see how appellant’s rights are prejudicially affected by the fact that such prima facie presumption was not established by reason of the jury’s failure to answer question 28 of the special verdict, when, from the testimony it clearly appeairs that
The oontenton of counsel in their petition for rehearing, in effect, that the evidence which would operate to overthrow the presumption, if established, can be given no weight until such presumption is first established, as a fact, does not appeal to us as sound. The foregoing opinion of the court in effect assumes, for the purposes of the point under consideration, that petitioner had established the requisite facts to create in his favor such prima facie presumption, to wit, that he is the lawful issue of deceased, and was omitted from the will. That such facts merely raise a prima facie presumption that he was not intentionally omitted, and that such presumption is rebuttable by evidence, extrinsic the will, is well established. In re Atwood’s Estate, 14 Utah, 1, 45 Pac. 1036, 60 Am. St. Rep. 878; Coulam v. Doull, 133 U. S. 216, 10 Sup. Ct. 263, 33 L. Ed. 596, and cases cited. These authorities deal with a statute identically the same as our own.
Appellant’s counsel urge that, in any event, the judgment in this case should be modified and the record so amended as to eliminate the findings of the trial court covering the omissions of the jury to answer the twenty-first, twenty-third, twenty-eighth and twenty-ninth questions in the special verdict; their contention being that there was a substantial conflict in the testimony as to the matters embraced in such questions, and hence the trial court clearly invaded the province of the jury in making such findings. In this counsel are clearly correct, and the judgment of the trial court will be modified accordingly.
Rehearing denied.