31 W. Va. 659 | W. Va. | 1888
Lewis Lunsford of Ohio county on the 27th day of April, 1881, made his last will and testament, in which he gave to his wife, Ann, during her natural life the house, in which he resided, and the grounds, on which it was situated, and directed his executors to set apart from his estates and invest in such manner, as they might deem best, $10,000.00 and to pay to his wife the dividends, interests and profits accruing therefrom during her life, and gave her during life the household and kitchen furniture and gave her absolutely the provisions on hand at the time of his death, and, if enough was on hand for the purpose, grain sufficient for herself and family for one year. These bequests were in lieu of dower.
By the second clause of his will he directs his executors to divide the residue of his estate, including the portions given to his wife, after the life-estate had terminated, into six shares, one for the children of his deceased daughter, Elizabeth, and one share each for his five living daughters, Sarah L., widow of R. O. Holliday, Margaret M. Lunsford, Julia A. Lunsford, Amanda V., widow of James R. Foster, deceased, Jennie H., wife of William Kerr, — “the six shares to be as nearly as practicable equal to each other, taking into account the respective amounts to be added and charged thereto, as hereinafter specified. I have advanced forty two hundred and sixty two dollars to said Elizabeth in her life time, and eight hundred dollars to her children since her death, on which eight hundred dollars interest is to be computed from February 25,1881, to the time of my death, and the said forty two hundred and sixty two dollars, eight hundred dollars and the interest aforesaid are to be added to this share, to make it equal to each of the other shares with the proper additions thereto. 1 have also advanced to the said Sarah L. Hoiliday twenty five hundred dollars; to Margaret M. Lunsford fifteen hundred dollars; to Julia A. Lunsford fifteen hundred dollars; and to Amanda V. Foster thirty five hundred dollars; and their shares including these advancements as part thereof, are to be made respectively equal. I have also advanced fifteen hundred dollars to Jennie H. Kerr, and her husband is indebted to
The contestants filed a bill of exceptions as to a number of rulings during the trial and to the refusal of the court to set aside the verdict and grant a new trial.
The first exception was, that the affirmative of the issue was given to the proponents and also the right to open and conclude the argument. Upon an issue devisavit vel non the proponents of the will have the affirmative of the issue and the right to open and conclude the argument. Coalter v. Bryan, 1 Grat. 18; McMechen v. McMechen, 17 W. Va. 683; Nicholas v. Kershner, 20 W. Va. 259.
The proponents, to maintain the issue on their part, introduced the will of Lewis Lunsford, deceased, dated the 27th day of April, 1881, also the two subscribing witnesses to the will, B. S. Allison and W. H. Hearne. These two witnesses testified to the execution of the will, and to the mental capacity of the testator, and the proponents then rested.
The contestants then offered many witnesses, who gave evidence tending to show that at the date of the execution of the will the testator was wholly incompetent to make a will. This testimony took a very wide range, — from several years before the execution of the will to several years after and to his death in 1883, — and showed that more than a year after the will was executed on motion and petition of one of the contestants the estate of the testator was put into the hands of a committee.
When the contestants rested, the proponents, against the protests of the contestants made on the ground that the pro
In Bowyer v. Knapp, 15 W. Va. 295, it was said: “ It is alleged as error that the court permitted the depositions of Newman, Kincaid, Flanagan, Richards and Oonaway to be read in evidence, because, as is claimed, they were not rebutting evidence. This is an objection to the mere order of the testimony. The bill of exceptions shows that, after the introduction of three witnesses, the defendants ‘ closed for the present,’ and then, after a number of witnesses had been introduced by the plaintiff, principally on the question of the competenc}1- of the plaintiff to transact business, the defendants were permitted to introduce the witness Kincaid and others on the same subject. Whether a plaintiff shall be permitted to introduce further evidence after the defendant’s evidence is introduced is a matter within the discretion of the court trying the cause; and its exercise will rarely, if ever, be controlled by an appellate court,” — citing, as the only authority, Brooks v. Wilcox, 11 Gratt. 411.
This principle is sustained elsewhere. Hoffman v. Harrington, 44 Mich. 183, (6 N. W. Rep. 225); Hess v. Wilcox, 58 Iowa 380, (10 N. W. Rep. 847); Hagerty v. White, 69 Wis. 317, (34 N. W. Rep. 92); Campbell v. Moore, 3 Wis. 673; Harden v. Hays, 14 Pa. St. 91; Smith v. Smith, 8. Ired. 29.
The general rule undoubtedly is, that in the trial of law-issues the party, on whom rests the burden of proof, should introduce in the first instance all his evidence in chief, and then, after the defendant has introduced all his evidence in chief, he should be confined to rebuttal evidence. Rex v. Smith, 2 Starkie 208; Rex v. Hilditch, 5 Car. & P. 299; Hathaway v. Hemingway, 20 Conn. 191; Clinton v. McKenzie, 5 Strob. 36; Water Co. v. Crary, 25 Cal. 504; Kohler
But inasmuch as in issues devisavit vel non the burden of proving the sanity of the testator is on the proponent of the will; and the issue being “ whether the paper writing is the last will and testament of the testator,” and as the will may be assailed on any and all the grounds, which would show it invalid, it would not promote justice to apply the rule applicable to ordinary law-issues. How are the proponents to know what kind of testimony, and how much, the contestants have to prove their general charges of want of capacity and undue influence ? What particular objections and evidence may be offered to sustain such general charges can only be known as the evidence is developed. As was said by White, Judge, in delivering the opinion of the court in Runyan v. Price, 15 Ohio St. 6: “To require those affirming the will either to finally rest their case on the order of probate, or otherwise, in anticipation of attacks that may or may not in fact be made, to introduce all the evidence they may have sustaining the will, on every ground on which it may be competent for the adverse parties to attack it,— would not, in our opinion, promote either the convenience of those charged with the trial, or the justice of the case, but would tend to contrary results.”
In the Ohio case it. appeared, that the proponents offered in evidence the will and probate, which under the statute of Ohio makes a prima facie case for the proponents, and then rested. After the contestants had introduced their evidence, the proponents offered general evidence to sustain the will. To the introduction of such evidence the contestants objected, but the court overruled the objection and admitted the evidence. The ruling was affirmed. The same course was approved in Forney v. Ferrell, 4 W. Va. 729. In the trial of an issue devisavit vel non, it is the proper course to pursue for the proponents to offer the will and the evidence of its
Did the court err in admitting or rejecting evidence ? The witness McFarland was asked the question : u At the time of your visit at the house and of Mr. Lunsford’s and lady’s visit to your place of business was there any one who . influenced him to any extent ? ” Objection was made by proponents and sustained by the court. This ruling was clearly right. The witness had no right to tell the jury that influence was exerted on the testator. He could tell what he saw, and the jury would be left to infer, whether any influence had been exerted, and whether it was undue influence,— one of the questions in issue.
Thomas Lunsford, one of the children and heirs of the testator, was asked his opinion of the mental condition of the testator. The court properly refused to permit the question to be answered, as under our statute he was incompetent to speak on the subject. Anderson v. Cranmer, 11 W. Va. 562.
Did the court err in refusing to allow the medical experts to answer the hypothetical questions propounded? Several were allowed to be answered, against the objection of the proponents, and to the ruling of the court they excepted. The following question was asked Dr. James E. Reeves:
“ Doctor, assuming that a person seventy seven years of age in the month of August, 1S80, was sick for a period of two or three weeks, and that during such sickness it was found, that such person believed himself to be in a location different from that in which he was, and whose mind, in the month of August, 1882, was impaired almost to its fullest extent, what would be your diagnosis, as an expert, of such person’s malady or condition, and what would be your opinion, as an expert, of his mental capacity on April 27,1881 ?”
The doctor answered: “ Evidently the illness or sickness
Dr. Reeves was also asked: “ Suppose a man of the age of seventy seven, in the month of August, 1880, and who, during the month of May, 1880, had lost a favorite son by death, and who, in the years 1875 and 1876, had been a capable and active man, and whose memory in the month of June, 1880, was discovered to be considerably impaired, and who was in the habit of relating past events to the same person, day after day, without seeming to know he had related them at all, and who, in the month of August, was sick with an illness of two or three weeks’ duration, and who, in that month, was found to have believed himself to be in a locality different from that in which he was, and who, in the month of January, 1880, had sold a piece of valuable real estate at a price which Ool. Thomas O’ Brien considered, to say the least, was very cheap, and who, in August, 1882, was found to have suffered a mental deterioration almost to its fullest extent,— what would be your diagnosis of such a case, and what would be your opinion of the mental capacity of such a person on the 27th day of April, 1881 ?”
The doctor answered : “ That question fills the gap I men
Question. “ Well, with reference to the capacity of such a person on the 27th of April, 1881, what- would you say, doctor ?”
The answer was: “ Remembering the rise and termination of the case as presented in the question, there could be no other reasonable conclusion than at that date he was incapable,” eto.
The following question was asked of the same witness, against the objection of the proponents, and answered : “Doctor, suppose that an active and capable man in the years 1875 and 1876, who, in the month of May, 1880, was of the age of seventy seven or thereabouts, and who in that month sustained the loss of a favorite and dutiful son, and who was found in the month of June, 1880, to have sustained a considerable impairment of memory, and who, in that month, was in the habit of relating events and circumstances connected with the past, and of repeating the same things to the same person, without recollecting that he had before stated them, and who, in the month of August, 1880, had suffered from an illness of two or three weeks’ duration, and who, during such illness, had conceived himself to be in a locality different from that in which he was, and who, in the month of January, 1881, had disposed of valuable real estate, at a price which, in the opinion of Col. Thomas O’ Brien, was very cheap, to say the least, and who, in the month of August, 1882, was found to have suffered an impairment of mind almost to its fullest extent, — what would you say of the capability of such a person, under such circumstances, of comprehending the nature and extent of his estate, whether large or small, the subjects of his bounty, and the manner in which his estate should be divided among them, on the 27th day of April, 1881 ?”
Answer. “ That question, I take it, is substantially the question I answered before, and I repeat that, the diagnosis.
In McMechen v. McMechen, 17 W. Va. 683, it was held, that, when a medical expert is asked to give his professional opinion to a jury not upon matters within his own knowledge but upon a hypothetical case founded upon the testimony of witnesses previously examined in the case, the questions to him must be so shaped as to give him no occasion to mentally draw his conclusions from the whole evidence or a part thereof, and from these conclusions so drawn express his opinion, or to decide as to the weight of evidence or the credibility of witnesses; and his answers must be such as not to involve any such conclusion so drawn, or any opinion of the expert as to the weight of the evidence or the credibility of the witnesses. The opinion of medical experts founded on testimony already in the case can be given only on a hypothetical case, and the hypothesis must be clearly stated, so that the jury may know with certainty upon precisely what state of assumed facts the expert bases his opinion.
In addition to the principles announced in that case it is now held, that in putting hypothetical questions to expert witnesses counsel may assume the facts in accordance with his theory of them. It is not essential, that he state the facts as they exist,but the hypothesis should be based on a state of facts, which the evidence in the cause tends to prove. Cowley v. People, 83 N Y. 464. In that case Folger, C. J., in delivering the opinion of the court, said:
“ The claim is that a hypothetical question may not be put to an expert, unless it states the facts as they exist. It is manifest, if this is the rule, that in a trial where there is a dispute as to the facts, which can be settled only by the jury, there would be no room for a hypothetical question. The very meaning of the word is that it supposes — assumes— something for the time being. Each side, in an issue of fact, has its theory of what is the true state of facts, and assumes*673 that it can prove it to be so to the satisfaction of the jury, and, so assuming, shapes hypothetical questions to experts accordingly; and such is the correct practice. Erickson v. Smith, 2 Abb. Dec. 64; People v. Lake, 12 N Y. 358; Seymour v. Fellows, 77 N Y. 178; Guiterman v. Steam-Ship Co., 83 N. Y. 358.”
The first of the questions put to Dr. Eeeves, which the court permitted to be answered, is unobjectionable under the rules above laid down. But both the others are objectionable and improper, because they leave the witness to weigh the credibility of Col. Thomas O’ Brien. The two questions put Dr. Smith are open to the same objection. The first question put to Dr. Reeves, which the court permitted to be answered, is not as full and complete as some which were refused. Nearly all the questions put to Dr. Reeves are open to the same objection in one form or the other.
The two following hypothetical questions were put to Dr. Reeves : “ Assuming that a man seventy seven years of age, in the month of August, 1880, who had, in the month of May, 1880, suffered the loss of a faithful and dutiful son, and who was found in the month of August to be suffering from an illness of two or three weeks’ duration, and who, during such illness in the month of August, 1880, was found to be under delusion, especially as to locality, was found to be afflicted with a mental disorder, — although slightly, yet certainly and unmistakably, affecting his mind, — and who, in the month of August, 1882, was pronounced to have suffered an almost complete loss of mental power, and who, at that time, was incapable of transacting business affairs, — what would be your diagnosis of such a person, as an expert, and what would be your opinion of his mental capacity on the 27th day of April, 1881 ?” — “ Doctor, assuming the case of a man seventy seven years of age in February, 1880, and who was found in the month of August, 1880, to be sick and under the care of his family physician, and, during the sickness occurring in August of that year, the patient supposed himself to be in a place distant from where he actually was, and who was found, during that sickness, to be afflicted with a mental disorder, although slightly, and who wTas found in the month of August, 1882. to have sustained an almost total loss of mental
These questions are proper under the rules we have laid down, and ought to have been answered; but as questions were permitted to be answered which were, at the least, as favorable to the contestants as these, although they were not proper questions, as we have seen, yet, as they were answered, and the contestants had the benefit of them, they were not prejudiced because the foregoing questions were not answered. Dr. Reeves was so positive in his answer to the hypothetical questions put to him, and his answer covering the whole ground, it is impossible that the jury was confused or misled by the refusal to permit the two proper questions to be answered.
It was claimed by contestants that one evidence of the incompetency of the testator was the fact, that he sold the Market-Street house at a very low price, — much lower than a business man in possession of all his faculties would have sold it for; and the contestants asked Dr. Oaddel, who was lessee of the property, and who testified he knew the value of it: “ What was the value of that property ? ” Proponents objected, the objection was sustained, and the contestants excepted. Mr. Rinehart had testified that he had purchased the property from the testator at $10,000.00, and that the price paid was, he thought, full value for it. The witness was then asked, “Did you ever offer Mr. Rinehart a sum of money for that property? ” which question was objected to, and objection sustained. Then the witness was asked, “ Did you ever offer him $14,000.00 for it?” Objected to, objection sustained, and contestants excepted. Then Rinehart was recalled for further cross-examination, and said he had an offer for the property from Mr. Zook, a. member of Dr. Oaddel’s firm. The offer was $10,000.00. It was not $14,000.00. Did not tell him he would not sell for $14,000.00, and that it was worth $18,000.00. The question was then asked Dr. Oaddel, what Rinehart stated the property was worth.
I do not think the court erred in refusing to permit the
This Court said in State v. Kinney, 26 W. Va. 143, that, “ to authorize the reversal of a judgment for admitting irrelevant evidence, not only must the evidence be irrelevant, but it must be of such a nature that its admission may have prejudiced the prisoner. If he may have been so prejudiced, even though it be doubtful whether in fact he was so, that is sufficient ground for reversing the judgment. Insurance Co. v. Trear, 29 Grat. 255; Payne v. Com., 31 Grat. 855.” The converse of this proposition is equally true,— that, to authorize the reversal of a judgment for refusing to admit relevant testimony, not only must the evidence be relevant, but it must be of such a nature that its rejection may have prej udiced the party offering it. If he may have been so prejudiced, even though it be doubtful whether in fact he was, that is sufficient ground for reversing the judgment.
We cannot here say that the rejection of this evidence could not have prejudiced the contestants. We do not know how close a case it was in the minds of the jury. It might have been so nicely balanced that it would have taken very little to have turned the scale. This looks like a small matter on which to reverse the decree in a cause of the magnitude of this; but to lay down proper, correct and uniform rules for the guidance of the courts is of much more import-
The contestants offered in evidence an order made by the Circuit Court of Ohio county on the 4th day of October, 1882, adjudicating the said Lewis Lunsford to be insane and appointing a committee for him, with the petition and notice for said appointment; but the court refused to admit any of the papers except the notice and so much of the order as adjudicated, that said Lunsford was insane and appointed a committee for him. The contestants excepted.
There appears to be no petition for such appointment in the record other than the notice signed by Amanda Y. Roster by her attorney. There is a petition of the “ committee ” filed, which asked the court to instruct him as to his duties under said appointment. This of course was irrelevant and not proper evidence. The only reason for complaint is, that the court refused to permit the whole of the order to go in evidence. The remaining part of said order relates to the duties of the “ committee ” with reference to the estate of the said Lunsford, called forth by the said petition of the committee and in answer thereto. At this time the contestants did not ask, that the whole record of the inquisition should go to the jury. Some time before that the contestants identified an affidavit made by W. J. Bates, Jr., and also what purported to be a committee-bond reciting, that Amanda Y. Foster-had been appointed committee for Lewis Lunsford by the clerk of the County Court of Ohio county, to which objection was made and sustained, and contestants excepted. They offered then no order adjudicating the party insane, and of course the court did not err in refusing to permit the said papers to go in evidence. What was properly the record of the inquisition de lunático inquirendo
It is insisted, that the court erred in permitting the stenographer’s notes to be read to the jury. Alfred Caldwell was called as a witness for contestants, and said he was counsel in the case of Goshorn v. Carter, tried at the April term, 1881, of the Circuit Court of Ohio county. He testified , that the testator was sworn as a witness in that trial; that, when he was on the stand, on some subjects he was pretty clear, but in some respects was incoherent. “ He was an old man, and his testimony did not agree very well with his previous conversation with me, which made me have him summoned as a witness. He would wander off in answering some of the questions.”
On cross-examination, witness said: “ I have the stenographer’s report of the testimony in that case and will produce it. In this testimony Mr. Lunsford appears, and it shows he was called for the plaintiff and examined by myself. This is a report of all his testimony given on that trial, and is substantially accurate. Captain Mathews, who made this report, was the official stenographer of the court, but not sworn as such, 1 learn.”
Thereupon, counsel for proponents offered to read said testimony of Lewis Lunsford to the jury, to which contestants objected, and the objection was overruled, the testimony read, and contestants excepted. This, certainly, would not be proper evidence in chief. Misner v. Darling, 44 Mich. 438, (7 N. W. Rep. 77); People v. Sligh, 48 Mich. 54, (11 N. W. Rep. 782); Lipscomb v. Lyon, 19 Neb. 511, (27 N. W. Rep. 731). The notes are not of that character properly authenticated to make them admissible as substantive independent testimony. But they were offered to contradict the evidence of Caldwell, who had sworn, that they were sub
It is also alleged as error, that the court admitted to be read in evidence a will, which the testator had executed in 1879. It is not questioned in the case, that the testator was fully competent to execute a will in 1879. This will was clearly admissible on the question of capacity to execute the will in question, because it is similar in its provisions and tends to show a steady and fixed purpose as to the manner, in which the testator intended to dispose of his property. The same may be said of another draft of a will, not executed, which was proved to have been dictated by the testator.
It was also objected that certain questions were asked of the committee as to the dates, at which the testator acquired a certificate of deposit and certain stock, which questions were answered by the witness after looking at the indorse-ments on the papers themselves. The testimony on the question of capacity was admissible, as tending to show business transactions, at the respective dates, by the testator.
In January, 1882, the testator had bought a suit of clothes of R. L. Prall; the cutter took his measure and had certain conversations with him ; he acted as other customers ; left strict orders about how he wanted the pockets made. Witness was asked the question : “ Prom what took place at the time the clothes were ordered, the conversation you had with Mr. Lunsford, and what took place at the time, what is your opinion as to his mental condition then ? ” Objections by contestants overruled, and exception. The witness answered : “ I didn’t see anything the matter with the gentleman at all, whatever, in any way.” The rule in our State is: “ The opinion of witnesses not experts are entitled to little or no regard, unless they are supported by good reasons, founded on facts which warrant them; but if the reasons and facts, upon which they are founded, are frivolous, the opinions of such witnesses are worth but little or nothing.” The evidence is admissible, and it is for the court or jury, under the circumstances, to give the opinions such weight as they think they should receive. For the same reason the
It is insisted that the court erroneously instructed the jury for the proponents. The instructions so given at the instance of proponents were as follows:
“(1) The evidence of witnesses who were present at the execution of the will is entitled to peculiar weight, and especially is this the case with attesting witnesses.
“ (2) It requires less capacity to make a will than it does to make a deed.
“(3) Old age is not of itself sufficient evidence of incapacity to make a will.
“ (4) The time to be looked to by the jury, in determining the competency of the testator to make a will, is the time when the will was executed.
“ (5) It is not necessary that a person should possess the highest qualities of mind in order to make a will, nor that he should have the same strength of mind which he may formerly have had. The mind may be in some degree debilitated, the memory may be enfeebled, the understanding may be weak, the character may be eccentric, and he may even want' capacity to transact many of the ordinary - business affairs of life ; but it is sufficient if he understand the nature of the business in which he is engaged, has a recollection of the property which he means to dispose of, the objects of his bounty, and the manner in which he wishes to distribute it among them.
“ (6) In oi’der to make a valid will, it is not necessary that the testator should name all his children in it, or give all of them a portion of his estate. If he was mentally capable of understanding the disposition which he was making of his property, and acted freely, it is immaterial to whom he gives his property, — whether all to one, or some, of his children, or to strangers. If he has a disposing mind and memory, he has a right to do as he pleases with his property.
“ (7) Although the testator may, perhaps, have been influ*680 enced by feelings of resentment or dislike to one or more of his children, and by feelings of alfection and attachment towards others, and though those feelings may have influenced him to give his whole estate to the one part, and little or nothing to the others, this is not sufficient to make the will invalid.
“ (8) If the provisions of the will were induced by the extreme kindness and attention to the testator on the part of the principal devisees, that will not constitute undue influence which will invalidate the will.”
These instructions propounded the law correctly, and have been expressly approved by this Court in Jarrett v. Jarrett, 11 W. Va. 584, and Nicholas v. Kershner, 20 W. Va. 251, except the fifth one, which, to be accurate, instead of using the language, “if he understand the nature of the business in which he is engaged,” etc.., should read, “ it is sufficient if he possess mind enough to understand,” etc. It would be hard to prove that a testator, of whose competency there was no question, recollected all his property, etc.; that, is, made no mistake.
The court at the instance of the contestants gave the following instructions, to which there were no objections by the proponents:
“ The opinions of witnesses not experts are entitled to little or no regard, unless they are supported by good reasons, •founded on facts which warrant the opinion that the testator was capable of understanding the nature of his business in which he was engaged when he made his will, recollected his property he meant to dispose of thereby, as well as the objects of his bounty, and the manner in which it is to be distributed among them.
“ That before the jury can find a verdict in favor of the proponents, they must believe from the evidence that Lewis Lunsford, on the 27th day of April, 1881, had the active power of mind and memory sufficient to collect and retain the elements of the business in which he was engaged, when making his said will, for a sufficient time to perceive their obvious relations to each other.
“ That unless the jury believe from the evidence that the testator acted freely and of his own will, and understood the*681 nature of the business in which he was engaged in making his will, and had a recollection of his property thereby disposed of, as well, too, of the objects of his bounty, and understood the manner of the distribution of his property by the will, they must find a verdict in favor of the contestants.
“ The court instructs the jury that the evidence of physicians, especially those who attended the testator and were with him during the time it is charged he was of unsound mind, is entitled to great weight.
“ The court instructs the jury that the condition of the testator’s mind, both before and after the execution of the purported will, is proper to be considered in determining what was his mental condition at the time the purported will was executed.”
The following instructions were asked by contestants, objected to and refused, and contestants excepted. We will dispose of them seriatim :
“ The court instructs the jury that, in considering the testimony, the evidence of Dr. W. J. Bates, Jr., the physician who attended the testator and was his family physician, is entitled to great weight.” . This instruction was properly refused. It,was in effect asking the court to tell the jury, that Dr. Bates’ evidence was entitled to great weight. The court had already at the instance of the contestants instructed the jury correctly, — and it was as far in that'line as it was proper to go, — ■“ that the evidence of physicians, especially those who attended the testator and were with him during the time it is charged he was of unsound mind, is entitled to great weight.”
The second refused instruction had before been substantially given. The fourth asked the court to instruct the jury, “that it is proper to consider the condition of the mind and memory of the testator.both before and after the date of the will in question in determining the question of the testator’s capacity to make said will. This instruction had already been substantially given, and the court is not bound to repeat its instruction.
The next refused instruction was: “ The court instructs the jury, that the opinion of witnesses not experts are entitled to little or no regard, if the facts, on which such opin
The instruction was properly refused, because of at least three fatal objections: First, it is confused; second, it refers to a disease by a technical name that the jury is not supposed to understand; and, thirds it assumes a number of facts to have been proved to the jury.
The next instruction is: uThe court instructs the jury, that the law presumes that the testator, Lewis Lunsford, was not capable of making a will, and the burden is on the proponents to show, by competent testimony, that, at the date of his will, the said Lewis Lunsford understood the nature of the business in which he was engaged, recollected his property disposed of thereby, the objects of his bounty, the number of them, the advancements he claims thereby to have made to them, and the manner in which he wished to distribute his property.”
This instruction, in the terms in which it was asked, was properly refused, because it would be sufficient “ if he possessed mind enough to understand ” etc. It is not necessary for the proponents to prove that a testator actually understood and recollected all these things; if he was mentally capable of doing so, it is sufficient.
The next instruction is: “The court instructs the jury that if they believe, from the evidence, that the said Lewis Lunsford was affected with a mental disorder known as e senile dementia,’ during the month of August, 1880, then they should consider the nature, progress, effect, and termination of such disorder, — as shown by the testimony, — as bearing upon the mental capacity of Lewis Lunsford on the 27th of April, 1881, to make, execute, and acknowledge the alleged will as his free and voluntary act.”
This instruction was properly refused, because it proposes
The court was also asked to instruct the jury “that, whilst it may be true that an enfeebled old man, whose mind has to some degree become debilitated and memory enfeebled and understanding weakened, may sometimes have sufficient capacity to make a will, yet, if the jury believes, from the evidence in this case, that the testator was, several months previous to the date of his will, afflicted with a disease which then materially affected his mind and memory, and which progressed in its effects upon the mind to the date of the will, and continued to progress for sixteen months afterwards, when, because thereof, the testator was mentally unable to transact business, then they should weigh the testimony tending to show mental capacity with great care, and be satisfied that it was sufficient to overcome the doubts of the testator’s capacity, existing both by reason of said disease, as well as by reason of the presumption of incapacity which the law fixes.”
The court properly refused to give this instruction. It must always be remembered that the time to be looked to for the testator’s capacity is the time when the will was executed. The evidence might be so clear, to the minds of the jury, that at that time the testator was competent, as to leave no doubt whatever in their minds, even though they might believe from the evidence that previous to the execution of the will the testator was afflicted with a disease which materially affected his mind and memory, and which progressed in its effects upon his mind to the date of the will, and for sixteen months afterwards, when, because of said disease, the testator was mentally incapacitated to transact business; yet the instruction assumes that this evidence raised a doubt in the minds of the jury that he was competent when the will was executed.
The court was also asked to instruct the jury “ that they must take into consideration all the evidence tending to show that the said Lewis Lunsford was induced to make the
This instruction was properly refused. To authorize an instruction it must be relevant. There must be some evidence tending to prove the facts upon which the instruction is based. Here is no evidence tending to prove undue or other influence exerted by any one on the testator to induce him to make the will in question.
' The last instruction asked by contestants and refused singles out the family-physician and asked that the jury be instructed, that his evidence is entitled to great weight. For reasons already stated, the instruction was properly refused. We have thus gone over every instruction asked, given and refused, and it is quite evident some would have been proper with slight modification; but the court was not bound to modify them.
It was assigned as error, that the court declined to submit the following questions to the jury, to be answered by it: “(1) Was the late Lewis Lunsford, in August, 1880, suffering from a disease known as ‘senile dementiaf” (2) If so, is that disease curable? (3) Had the disease so far progressed in August, 1882, as to render him (Lewis Lunsford) imbecile, and incapable of transacting business? (4) Does a person suffering from such disease have any lucid intervals ? ”
Section 5 of chapter 131 of the Code provides that, “ upon the trial of any issue or issues to a jury, whether under this section or not, the court may on motion of any party direct the jury in addition to rendering a general verdict to render separate verdicts upon any one or more of the issues, or to find in writing upon particular questions of fact, to be stated in writing. The action of the court upon such motion shall be subject to review as in other cases. Where any such
This is the first time the Court has been called upon to construe this statute. A number of western States have similar statutes which have received construction. None of them are precisely like ours. Railroad Co. v. Campbell, 16 Kan. 200; Dubois v. Campau, 28 Mich. 304; Railroad Co. v. Goddard, 25 Ind. 185; Tobacco Co. v. Jenison, 48 Mich. 459, (12 N. W. Rep. 655); Dickerson v. Dickerson, 50 Mich. 37, (14 N. W. Rep. 691); Eberhardt v. Sanger, 51 Wis. 72, (8 N. W. Rep. 111).
In Dubois v. Campau, 28 Mich. 304, Campbell, J.,.speaking for the court, said: “The questions to be separately submitted to the jury are required to be ‘particular questions of fact,’ (2 Comp. Laws, § 6026,) and these, as we have held should be such as to involve legal consequence. Crane v. Reeder, 25 Mich. 303. We think such a question as that which was put here could not be fairly called a particular question of fact, and it is difficult to imagine any answer that could have any controlling force in reaching a conclusion.” The action was ejectment, and the question the court declined to put to the jury was: “By what acts did Joseph Campau claim to hold possession adversly to the plaintiffs ?”
In Tobacco Co. v. Jenison, Cooley, J., for the court, said: “All the questions which remain unanswered might also have been excluded, for none of them were conclusive.” We have no doubt the submitting to the jury, under the statute, of “particular questions of fact” is within the discretion of the trial court, which discretion is reviewable.
The questions must be of such a character that the answers thereto, if contrary to the general verdict, would control the same, and be conclusive of the issue. That this is true is apparent from the language of the statute. It declares : Where any such * * * special finding shall be inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accoi’dingly.” Now let us see, what according to these principles would have been the effect, had there been a general verdict in favor of the will, and had the jury at the same time answered the first question: “Was
It is very clear what was the object of the contestants’ counsel in asking these questions to be submitted. Their theory is, that if the testator in August, 1880, had senile dementia, and that disease was incurable, and it had so far progressed, that in two years thereafter the testator was imbecile and incapable of transacting any business, and that a person suffering from such disease has no lucid intervals, then it must inevitably follow, that on the 27th day of April, 1881, — the date of the will, — the testator was incompetent to make it. The main issues were: Was Lewis Lunsford, the testator, at the date of the will mentally competent to make it; and did he act freely ?
It will not do to say, that because an old man is suffering from senile dementia, from August, 1880, until August, 1882, at which time he was incompetent, that therefore, twenty months before the latter date, on the 27th of April, 1881, he was as a legal consequence incompetent to make a will, even though the disease be incurable, and there are no lucid intervals. The question still is : What was his mental condition, at the time the will was made ? At that time did he have mind sufficient to authorize him to execute a valid will ? Dr. Edwards in his deposition in behalf of the contestants says: “ All old men, who begin to go down hill, begin to have senile dementia to a limited extent. Of course some retain their intellect longer than others.” It would be sad, indeed, if all old men suffering from the disease of senile dementia were because of this fact to have their wills set aside, —their wishes disregarded, — -even though a jury might think
The court did not err in refusing to set aside the verdict and grant a new trial, on the ground that the verdict was contrary to the law and the evidence, or because of misdirection by the court. The evidence was conflicting, and on well-established principles the verdict could not be set aside as against evidence. The motion for a new trial was also based upon an affidavit, that the Wheeling Intelligencer, a daily newspaper published in the city of Wheeling, had the following paragraph published therein during the trial: “ The Lunsford will case still drags its slow length along. It will probably occupy the entire remainder of this week. The general public opinion is that the jury will sustain the will, or disagree. Among the witnesses examined yesterday were Rev. Dr. Cunningham, Attorney General Caldwell, lion. Daniel Lamb, and John 0. Pendleton.” “And affiant further says, that said daily newspaper has a large circulation in and through said city, and is very generally read by the people of said city, as he believes.”
Here is no evidence that any member of the jury read said paragraph, and, if they had, that would not be sufficient to set aside the verdict. If the fact was as therein stated as to the “public opinion” on the case, the members of the jury, who were not required to be, and were not, kept together, could have heard the matter talked of without themselves being culpable. If verdicts could be set aside on such grounds, suits would be interminable. The court did not err in refusing to set aside the verdict on this ground.
It is insisted, that the court erred in not giving a construction of said will, as such construction was asked in the bill. This matter in the bill may be regarded as mere surplusage, as it could not be joined in a bill for an issue devisavit vel non. When a final decree is pronounced in favor of a will on the verdict of a jury rendered on an issue devisavit vel non, the functions of the suit are exhausted, and the bill should be dismissed. In such suit the construction of the will cannot be involved. Coalter's Ex’r v. Bryan, 1 Gratt.
AFFIRMED.