124 Mich. 86 | Mich. | 1900
This is a contest over the will of Elnora Saier. The grounds of contest are undue influence and mental incapacity. The record discloses that in 1895 Mrs. Saier had executed a will in which she had devised her property to her children, share and share alike, except William and Joseph. The shares which, had she died intestate, would have been theirs, were devised to their respective wives. Before the making of this first will, Mrs. Saier had loaned to her son William $800 on mortgage security, and had loaned to Joseph Saier $500, and to Charles $500. The will offered for probate was executed on the 11th of January, 1898, the day of the testatrix’s death, and differs from the first will only in that the shares given by the first will to the wives of William and Joseph were given direct to her sons, and that by the will in question it was recited that these loans of $800, $500, and $500, respectively, should be treated as advancements to William, Joseph, and Charles, and deducted from their respective shares, the will reciting that these sums remained unpaid. The testimony tended to show that the mortgage given by William had on the 2d of November, 1894, been formally discharged by Mrs. Saier, and that William had, by her direction, paid the money due thereon to Joseph.
There are numerous assignments of error based on the admission of testimony. But two of these require discussion.
There is one other item .of testimony which was improperly excluded, in our opinion. As tending to show that the testatrix retained her mental faculties, evidence was offered that, a few hours after executing the will, a priest was called to administer the last sacrament, and that Mrs. Saier participated in the service, repeated audibly and properly the prayers, made the sign of the cross at the proper time, and appeared to comprehend the service. On cross-examination of Mrs. O’Neil, who was'called as a witness by proponents,— it appearing that she was present at this time,' — ■ she was interrogated as to what this service consisted of, and, under objection, the testimony was excluded. We think it should have been admitted. It had a direct bearing upon the condition oí the patient.
The charge, in the main, was full and fair, but there is
“Neither, in a case of this kind, are you to be moved by any appeals of any kind made to you. I wish those things could be eliminated from the court-room; * * * and all appeals to your prejudice, all appeals to your passion, all appeals of any kind made to you, are simply so many strings to pull you away from the pure question of fact that you have to determine. And when you go to your rooms I want you to act upon your own judgments, upon your own consciences, in the matter. It is not for you to make a will one way or the other; that is none of your business. You have got no more right to make a will for Mrs. Saier, now that she is dead and gone, than you would have had to step into her room when she was living, and impudently dictate to her what she should do with her property. Whether it is such a will as you would have made is immaterial. Whether she did just right, or did not do right, is immaterial. Those are not questions for you. You gentlemen have the control of your own property, and she had the right to control hers, if she was mentally competent.”
It is true that a jury has no right to substitute its own judgment for that of a testator as to what a will ought to be. It is true that whether she did just right was not the ultimate question for the jury to determine. But if she discriminated against William to the extent of this mortgage, claiming that it had not been paid, when in fact it had, this was a circumstance which was to be weighed by the jury, in connection with the other facts in the case, in determining her mental condition, and determining whether she acted under undue influence. It does not require any argument to show that such a provision is against natural justice, and the fact that a provision of the will is against natural justice may be considered, with other facts, as bearing upon this question. Rivard v. Rivard, 109 Mich. 98 (66 N. W. 681, 63 Am. St. Rep. 566).
We think the other questions raised do not call for special discussion. The rule of the case is sufficiently in
For the errors pointed out, the judgment will be reversed, and a new trial ordered.