219 N.W. 707 | Mich. | 1928
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *41 November 24, 1922, Lewis N. Lembrich made and executed his last will and testament. May 23, 1925, he died. The will was admitted to probate in Washtenaw county. Appeal was taken by Ray Lembrich and Wanda F. McCarbery to the circuit court. Contestants allege testator was, at the time the will was executed, mentally incompetent to make and execute it, and that it was the product of the undue influence of Edith M. Smith, the proponent. Proponent and contestants are children of testator. Edith May Smith is a daughter by testator's first wife. *42 Contestants are children by his second wife. The will, except its formal parts, provides:
"I hereby give, bequeath and devise all of the rest, residue and remainder of my estate, real, personal, or mixed, to my beloved daughter, Edith M. Smith, of R. F. D., Bowling Green, Ohio, to have and to hold unto herself, her heirs and assigns forever.
"In making this provision for my said daughter, I am not unmindful of my other children, and have purposely left them from the provisions of my will for reasons best known to me."
The case was tried in the circuit court for Washtenaw county, a verdict rendered for contestants, and proponent brings error.
Testator and his wife did not get along well together. His wife filed a bill for divorce in Monroe county. Mr. Rathbun of Tecumseh appeared as attorney in the divorce case for testator. A property settlement was arranged between him and his wife out of court and embodied in the decree of divorce. This property settlement was carried out a few days later at the bank in Milan. Testator made, executed, and delivered to his divorced wife a deed of his interest in the home farm worth $11,000, and she paid him $5,000. There was and is no question raised of testator's mental capacity to make this contract of settlement, carry out and consummate it by deed, receive the $5,000 paid to him by his divorced wife, make, execute, and deliver the deed disposing of his interest in this property, on the day that the will was made. It requires less mental capacity to make a will than to make a deed. Kempsey v. McGinniss,
Contestants and their witnesses are for the most part interested. They testify to nothing inconsistent with testator's mental capacity to make the will at the time it was made. The opinions of witnesses are no stronger than the facts upon which they are based. Witnesses should, in general, testify only to facts. A lay witness ought not to be permitted to give his opinion as to the mental incapacity of a testator except after having detailed the facts and circumstances upon which his opinion is based. In questions of alleged mental incompetency the facts and circumstances detailed by the witness forming the basis of his opinion must legitimately tend to show mental incompetency. The opinion of a witness as to the ultimate fact in issue can have no greater weight than the force of the accumulated *45
facts detailed by him. To permit a witness to express an opinion upon facts not disclosed to the jury is to permit him to place before the jury incompetent testimony. The witness ought not to be permitted to pass upon the force, effect, weight, or sufficiency of the facts detailed by him, or to usurp the functions of the jury, which is to pass upon such facts. To permit a witness to express his opinion as to the mental capacity of a testator, not based upon facts legitimately tending to support such opinion, is to permit the witness to invade the province of the jury and to place his construction upon facts which should be passed upon by the jury themselves. It enables the witness to give secondary rather than primary evidence and deprives the opposite party of the essential right of cross-examination. Lamb v. Lippincott,
There was, of course, the ever-present expert psychiatrist, who had never known, seen, or heard of the testator in his lifetime but who testified, in answer to a hypothetical question, to testator's mental incompetency.
In Spratt v. Spratt,
"What weight is opinion evidence entitled to where it appears that, unaided by any one, he does in fact make a will disposing of all his property, dictating consecutively the bequests and devises he sees fit to make to a large number of relatives, near and remote? What weight or reliance should be given to the opinion of persons, interested or disinterested, professional or lay, to the effect that a person, who has in fact dictated a will disposing of all his property by successive bequests and devises, requiring consecutive thought and the exercise of memory, was unable to transact any matter of business which required for its completion several hours of time, recalling of various people and facts, or that he was mentally incapacitated to understand the nature and extent of his property, and the *46 number and relation of those who were the proper objects of his bounty, so as to make a will devising his estate? * * * When, in the absence of fraud or undue influence, it is shown that the testator either wrote or dictated the will produced, the fact is established that he was capable, mentally and physically, of doing whatever the instrument shows was done; and the only question is, Does the instrument on its face indicate that it is the emanation of an unsound mind, when applied to the facts and circumstances upon which, and under which, it was intended to operate?"
See, also, In re Cottrell's Estate,
Testator was a single man. The property disposed of by the will was his. His former wife had just received more than one-half of the property they possessed. On the day of the settlement with her the deed and the will were made. His children were all of mature years. They were not co-owners with him of the property disposed of by the will. If testator had sufficient mental capacity to make the will in question he could dispose of his property as he saw fit. The law provides how the property of intestates shall descend and be distributed. It permits any one of sound mind to make a testamentary disposition of his property. That testator acted under the law of wills and directed the descent and distribution of his property instead of permitting it to pass under the statutes of descent and distribution is no evidence of his mental incapacity. That children are not mentioned in a will is sometimes mentioned as indicating the testator did not have them in mind as objects of his bounty, but here it is shown by the will itself and by the uncontradicted testimony of the scrivener the testator did have contestants in mind and purposely gave his property to proponent. He gave his reasons to the scrivener for not making contestants beneficiaries under his will. If he was capable of reasoning and taking reasonable action, he was *47 capable of making a will, and neither court nor jury has a right to substitute their views for those of the testator. On the day the will was made testator settled his property matters with his wife, deeded her his interest in the home farm, received and presumably receipted for $5,000 paid to him by her, accepted the cash, counseled with his attorney as to its investment, talked with his attorney of his children, dictated the terms of the will, and, after it was prepared, signed and executed it.
"When a man goes to an attorney, and, without aid or suggestion, directs the provisions of his will, and furnishes specific descriptions of all the property he owns, it is a waste of time to discuss the question as to whether he was mentally competent to dispose of his property as he did."In re Ver Vaecke's Estate,
See, also, In re Littlejohn's Estate,
The trial court should have directed a verdict in favor of proponent. Hibbard v. Baker,
The judgment is reversed, and the circuit court directed to enter a judgment for proponent, who will recover costs.
FEAD, C.J., and NORTH, FELLOWS, WIEST, CLARK, McDONALD, and SHARPE, JJ., concurred. *48