115 Mich. 611 | Mich. | 1898
Jesse Emmons died in August, 1893. His father and mother at times had both been insane; also several of his brothers and sisters. His wife died a good
For a number of years, Mr. Emmons had been associated in business with his son-in-law, Edwin Lamb, and with J. C. Lamb, who was the father of Edwin Lamb, and for a good many years prior to his death he had been an inmate of the same household as Edwin Lamb. Mrs. Edwin Lamb died during her confinement, in the spring of 1889. As already stated, Mr. Emmons was discharged from the asylum in June, 1890. Upon his return to Dryden, he resumed his living with Edwin Lamb. In December, 1890, he told Jacob C. Lamb, the father of Edwin Lamb, that-he desired to make his will, and gave Mr. Lamb a memorandum, and requested Mr. Lamb to draw the will for
Counsel complain of remarks made by counsel for the proponent in his opening to the jury. The record does not disclose that the objections now made were made at the trial. It is stated in the supplemental brief of counsel that the stenographer’s minutes show that objections were made and exceptions taken. This court, however, must be governed by the record as it appears here.
Counsel complain with a good deal of earnestness of remarks made by the court in the course of the trial which, it is claimed were improper and prejudicial. By separating sentences, here and there, from what preceded and followed, some plausibility is given to this contention; but when the sentences are put with the context,, and the circumstances under which they were uttered are taken into consideration, we do not think that it can be said that the remarks were so improper or prejudicial that the case ought to be reversed for that reason.
After proving the execution of the will by Mr. Parker and Mr. Tucker, it was offered in evidence. Objection was made to its reception, until Mr. J. C. Lamb, the other witness, was sworn. It was then stated by counsel that the will had been proven by the number of witnesses required by the statute to sign as witnesses; that they did not desire to call Mr. Lamb then, but would call him later. The will was then read'in evidence, and this is said to be error. Mr. Lamb was called later, and was cross-examined at great length by counsel for contestants. The contestants were not obliged to make Mr. Lamb their own witness. They had the same opportunity to cross-examine him they would have had if he had been called earlier. They and the court were told before the will was read that Mr. Lamb would be called later. We do not see how the contestants
Dr. Jones was produced as a witness for the proponent. He was asked by counsel for contestants a hypothetical question, which was objected to, and the objection sustained, — the court saying to the counsel that his ruling was simply as to the form of the question, but the subject-matter was open to their inquiry; and they did pursue the inquiry in another form, and obtained such information from the doctor as he possessed. We do not think that this was error. See Fraser v. Jennison, 42 Mich., at page 235.
One objection to probating the will was that the will had been forged or changed by substituting another paper for a portion of it. It is said that it is a suspicious circumstance that the will should be written on one side of two pieces of paper, instead of being written on the two sides of one piece of paper. We have the original will before us. There is nothing in its appearance to indicate that it has been changed or altered, while the testimony was of a positive character that it had not been. The court very properly told the jury that there was no proof from which they could infer that the will had been forged or changed.
Anotüer ground of contention was undue influence. The court told the jury that there was no proof of undue influence. This is said to be error. It is urged that Mr. Edwin Lamb was virtually the guardian of Mr. Emmons, and did all his business for a series of years, and that, as he is the beneficiary under the will, under the circumstances the presumption arises that he influenced Mr. Emmons to make the will as he did, and it is incumbent upon him to do away with the presumption. There is not a particle of proof that J. C. Lamb or Edwin Lamb in any way ever used any influence upon Mr. Emmons to induce him to make this will, or any will. It is true that Mr. Emmons was intimate with these men for a long period of time, and apparently had much respect for their
Counsel say the court erred in allowing the opinions of professional and nonprofessional witnesses without a proper foundation being laid, and think the rule laid down in Prentis v. Bates, 93 Mich. 234 (17 L. R. A. 494), and People v. Borgetto, 99 Mich. 341, is illogical, and indefensible upon principle, and argue that the same acquaintance with a decedent°which would be a sufficient foundation to enable a witness to express an opinion that the decedent was sane should be deemed sufficient to enable a witness having a like acquaintance to express an opinion that the decedent was insane, if that was the opinion of the witness. We think that counsel overlook the facts which make the distinction necessary. Sanity'is the rule; insanity, the exception; and when it appears that a witness has known a person for a long time, and has never known anything unusual, either in his speech or actions, he is competent to express an opinion that the man is sane, because sane or normal acts and speech are consistent with the normal condition, sanity. Insanity, however, not being a normal condition, before one is competent to say that another is insane, he must state some fact that is inconsistent with sanity; and this is not done until the witness is able to testify to something that the man has said or done which fairly tends to show insanity. We are content with the rule as' stated in Prentis v. Bates and People v. Borgetto, and we think that the trial judge did well to follow it. The question of the competency of
It will not be necessary to discuss the other assignments of error. The case was fairly tried, and the judgment should be affirmed.