208 P. 1072 | Mont. | 1922
Lead Opinion
delivered the following opinion:
This action was brought to revoke the will of William J. Redfern upon the ground that he was suffering from an insane delusion. He was more than eighty years old when the will was executed. The heirs consisted of a son, the defendant, and the plaintiff. The wife of deceased died at the birth of defendant, the plaintiff then being a year and
In answer to the inquiry of counsel as to when she first learned of the terms of the will, the plaintiff stated that her brother told her in a letter. This letter the plaintiff offered in evidence upon the issue of the delusion, supplemented by an oral explanation given by the defendant soon after the commencement of the action. The letter was ruled out upon the ground that it was immaterial, ■ irrelevant and incompetent, hearsay, and the declaration of a third party, the court remarking that it was hearsay, but that the facts could be proven by the defendant himself, who was present in court. The defendant was not sworn as a witness. The will was executed January 2, 1918. The testator died March 7, following. The will was admitted to probate, and on April 23, Martin Johnson, one of the defendants, was appointed executor.
The material portion of the letter excluded is as follows:
“Father had Johnson come up to the cabin some time last winter and make his will. Some time after he showed me the will. He left you $2 and everything else to me. I told him
“Your brother,
“John.'”
The court also excluded plaintiff’s offer to show by the plaintiff that the defendant, John C. Redfern, in a conversation had with.him at Laurin, Montana, during July or August, 1918, in the presence of her lawyer, H. P. Beckett, that the deceased had told him that the reason he left his daughter a bequest of only two dollars was that his daughter had tried to poison him.
At the close of the evidence for the plaintiff, defendant’s motion to instruct the jury to return a verdict in his favor was sustained because the plaintiff had failed to make out a prima facie case. From the judgment and order denying a new trial, the plaintiff has appealed.
Counsel for both sides rely upon the opinion of Sir John Nieholl defining monomania and the text-writers accepting Daw v. Clark, 1 Add. Ecc. 279, 3 Add. Ecc. 79, as the leading case upon the subject. (1 Alexander’s Commentaries on Wills, p. 466; 1 Schouler on Wills, 5th ed., Chap. VIII.) Exhaustive discussions of the question will be found in Broughton v. Knight, 6 Moak, 349; American Seamen’s Friend Society v. Hopper, 33 N. Y. 624; Friedersdorf v. Lacy, 173 Ind. 429, 90 N. E. 766; Bohler v. Hicks, 120 Ga. 800, 48 S. E. 306; In re Scott’s Estate, 128 Cal. 57, 60 Pac. 527; In re Kendrick’s Estate, 130 Cal. 360, 62 Pac. 605; In re Skinner’s Will, 40 Or. 571, 62 Pac. 523, 67 Pac. 951; notes to Dibble v. Currier, Ann. Cas. 1916C, pp. 5-21.
In 1 Schouler on Wills, section 146, the author has this to say: “On the whole, the essence of an insane delusion is that it has no basis in reason, and cannot by reason or evidence be dispelled in the slightest. It is thus capable of being
In Murphy v. Nett, 43 Mont. 353, Ann. Cas. 1912C, 380, 116 Pac, 1004, is this language: “Lunacy or insanity, if of a general, habitual, or permanent nature, once shown to exist, is presumed to continue until the presumption is overturned by countervailing evidence. This rule is recognized by the courts generally. * * * Where its existence is made to appear the presumption referred to attaches; for we know from experience that the condition usually continues.” To the same effect are Alexander on Wills, p. 466; In re Thayer’s Estate, 188 Mich. 261, 154 N. W. 32; American Seamen’s Friend Society v. Hopper, 33 N. Y. 624; Ballantine v. Proudfoot, 62 Wis. 216, 22 N. W. 392; Bradley v. Onstott, 180 Ind. 687, 103 N. E. 798.
The evidence offered and rejected was admissible because the defendant was the sole beneficiary under the will, and a party to the proceeding to set it aside. (Section 10531, Rev. Codes 1921; Murphy v. Nett, supra; Underhill on Wills, see. 163; Alexander on Wills, sec. 373; 1 Schouler on Wills, sec. 195; Page on Wills, sec. 401; Egbers v. Egbers, 177 Ill. 82, 52 N. E. 285; Lyman v. Haul, 275 Ill. 11, 113 N. E. 944; Brainerd v. Brainerd, 259 Ill. 613, 103 N. E. 45; Potter’s Appeal, 53 Mich. 106, 18 N. W. 575; Zibble v. Zibble, 131 Mich. 655, 92 N. W. 348; Fay v. Feeley, 18 R. I. 715, 30 Atl. 342; Shailer v. Bumstead, 99 Mass. 112; Lane v. Moore, 151 Mass. 87, 21 Am. St. Rep. 430, 23 N. E. 828; May v. Bradlee, 127 Mass. 414.)
In Potter’s Appeal, supra, the supreme court of Michigan say: “Admissions made by a party to the record, whether upon the witness-stand or elsewhere, relative to matters material to the issue, may be given in evidence by the opposite party, and persons hearing the admissions * * * may be called to prove what was said. And if a,person present at the time the admission was made reduces it to writing in the exact language used, and testifies to that fact, and there is no question as to its correctness, I can see no objection to introducing the writing itself in evidence. The object of all
There the contestant introduced the court reporter, who took the shorthand notes of the testimony of the sole beneficiary under the will given in the probate proceedings. The exclusion of the evidence was one of the rulings upon which the case was reversed. This decision was affirméd in Zibble v. Zibble, supra,. Statements of this character have also been held admissible as declarations against interest. (Lyman v. Kaul, supra; Brainerd v. Brainerd, supra; In re Rick’s Estate, 160 Cal. 467, 117 Pac. 539.) In the case last cited the supreme court of California held that "The admissions and declarations against the interest of the sole beneficiary were admissible to establish any fact in issue upon the validity of the will which they have a tendency to establish.”
"With this evidence there was enough produced to take the case to the jury for its consideration.
The judgment and order appealed from are reversed, and the cause is remanded to the district court, with directions to grant a new trial.
Concurrence Opinion
Concurring: I concur in the result reached. The grounds upon which the will was contested were: That (a) the testator was, on the second day of January, 1918, when he "executed the purported and pretended will, * # * not of sound mind and memory and was not in any respect competent or capable to make a last will and testament”; and (b) that at the time of the execution of the "purported and pretended will,” the .testator "was acting under the undue influence of John C. Eedfern, the son of deceased.”
There was a complete failure of proof to support the second ground of the contest, i. e., undue influence; and and, as to the first cause, while the proof was slight, yet preju
I have no objection to the general principles of law enuneiated by M’r. Justice Cooper on the subject of insane delusions except that I do not now and never have approved of the use of the word “habitual” by Mr. Chief Justice Brantly in the ease of Murphy v. Nett, 43 Mont. 353, Ann. Cas. 1912C, 380, 116 Pac. 1004, in discussing the presumption existing concerning “lunacy or insanity of a general, habitual, or permanent nature once shown to exist.” The word “habitual” presupposes intelligence, and was therefore improperly used in that decision. It will be noted that I was of counsel in the Murphy Case.