95 Ark. 158 | Ark. | 1910
Lead Opinion
(after stating the facts). Instruction number 3 given at the request of appellees did not give the jury the correct guide for determining testamentary capacity. It made actual knowledge, rather than capacity to know, the test. There is a wide difference between the two, and one necessary to be observed in order to correctly declare the law where testamentary capacity is the issue. A testator might not have “full knowledge of the property he possessed and its extent,” and yet, if he has the mental capacity to know about it, his will in the absence of fraud would nevertheless be valid. One might not know the natural objects of his bounty and their relation to him, and yet, if he had the capacity to know or to be informed about them and to comprehend his relation to them when so informed, his will would not be invalid because he did not have actual knowledge or “a reasonable perception and understanding of the persons he desired to be the recipients of his bounty.” We endeavored to make clear the distinction of which we are speaking in the-recent case of Taylor v. McClintock, 87 Ark. 273. In that case we had under consideration insane delusion as an alleged ground of incapacity. Here the alleged ground is senile dementia, or general insanity from that cause. But, as we said in Taylor v. McClintock, supra: “The test of testamentary capacity is necessarily the same, whether the insanity be attributable to dementia or insane delusion — paranoia.”
In the above case we approved an instruction which prescribed the following as a test of testamentary capacity: “By soundness of mind in this connection is meant the capacity of the testator to comprehend the nature of the transactions in which he is engaged at the time; to recollect the property to be disposed of, and the persons who would naturally be supposed to have claims upon him, their deserts and relation to him; and to comprehend the manner in which the instrument would distribute the property among the objects of his bounty; if one who, at the very time he undertakes to make a will, is possessed of sufficient intelligence and memory to fairly and rationally know and comprehend the effect of what he is doing, the nature and condition of his property, who are or would be natural objects of his bounty, and his relations to them, the manner in which he wishes to distribute his estate among or withhold it from them, and the scope and bearing of the will he is making, * * * he has capacity to make a will.”
The Supreme Court of Connecticut in Havens v. Mason, 78 Conn. 410, 3 L. R. A. (N. S.) 172, passed on an instruction similar to the above except that it had also the following: “It is for the jury to say whether or not at the time of the execution of the will Mrs. Stevens knew that she was making a will, knew what property she possessed, and knew the natural objects of her bounty; and if you find that these essentials she knew and understood at the time of the execution of this will, then the will should be sustained.”
The court approved the instruction as sanctioned by us above, but condemned as error and reversed the cause on account of the added language last above quoted. The court said: “The first of these sentences states a sound legal proposition. But, while one possessing the intelligence and memory which it describes has, as matter of law, sufficient testamentary capacity, it does not follow that one without actual knowledge of all the various matters specified may not have it also. Persons of large means rarely know precisely what property they own, or even the nature and present condition of every considerable item of it.”
“If by the class described as those who were or should be the natural objects of her bounty was meant her heirs at law, as seems probable by the reference to their relations to her, a test of capacity was imposed which was too severe.. She had fourteen nephews and nieces living, who were her next of kin. She might have had sufficient testamentary capacity, without knowing whether all were alive, or whether any other who might have died previously had left issue that then represented them.” See also note in 3 L,. R. A. (N. S.) to the above case.
It will be noted that in the instruction approved by this court in Taylor v. McClintock, supra, and other cases there cited, the test is capacity to know, and not actual knowledge, whereas the instruction under consideration in the instant case makes actual knowledge, and not capacity to know, the test. To be sure, if one knows and understands what he is doing when he executes his will, and can retain in his memory, without prompting, the nature and extent of his property, etc., then -he has the testamentary capacity. But one may not actually know and understand, and yet have the capacity to do so. Therefore instruction number four given at the instance of appellants does not cure the error of instruction number three given at appellee’s request. Nor is this error cured by other instructions in the case. The error of instruction number three is not one of mere verbiage that could and should have been corrected by specific request of appellants. The instruction is an erroneous statement of a fundamental rule of the law applicable to the issue being tried and essential to its correct determination. The error is one of substance, and not •of mere form. A general objection is sufficient.
Other assignments of error are argued in the briefs, and have been considered, but the above is the only prejudicial error we find in the record. For this the judgment is reversed, and the cause is remanded for new trial.
Dissenting Opinion
(dissenting). This case seems to have been submitted to the jury upon exceptionally clear instructions, save number three, and they were correct. The record is entirely free from error in other respects, and the verdict is well supported by the testimony. Instruction number three contains some language which submits an incorrect test of testamentary capacity, but, considering this instruction as a whole and in connection with the other instructions given at the request of each party, I do not see how the jury could have been misled by it. The instruction is not one that is inherently wrong, though it is to some extent ambiguous and'calculated to mislead. It should, therefore, have been met by a specific objection to the particular language which was objectionable. It is manifest from all the instructions that the court intended to make capacity, and not actual knowledge, the test, and the jury must have so understood. If a specific objection had been made to the objectionable language in the instruction, so as to call attention directly to it, the court would no doubt- have modified it so as to harmonize it with the other instructions. I do not think the verdict should be disturbed.
