22 Kan. 69 | Kan. | 1879
The opinion of the court was delivered by
Action to set aside a will; trial by a jury, and verdict against the will. The first matter which we shall notice is the alleged error in the admission of testimony. The will was challenged on the ground of undue influence, as well as on the ground that the decedent, at the time of its execution, was not of sound mind and memory. It appeared that the decedent was taken sick July 3d, and died on the :8th; that Dennis Mooney and Mrs. Mary McCarthy, the principal devisees and legatees under the will, were in attendance upon her during most of this time, and that the will was written the day before her death. Over objection, the court permitted testimony of the conduct of these devisees, not merely at the time of making the will, but also while present at the house of decedent during the sickness and immediately after her death; also, of the statements of the decedent made prior to her sickness, (some a long time prior,) showing estrangement from and ill-feeling toward Dennis Mooney; also, of letters from him to her, tending to show the same •state of facts; also, of an engagement of marriage, expected to be consummated on the 10th of July, to one who was present during most of the sickness, and was not mentioned in the will. The testatrix was, at the time, of making the will, very much debilitated from loss of blood, and was in what the attendant physician called a semi-comatose state. The preparation of the will lasted some hours, although, when written, the instrument itself fills scarcely a page. As she roused from a state of stupor, she was asked to whom she wished to
“The declaration of the testator accompanying the act,*78 must always be resorted to as the most satisfactory evidence to sustain or defend the will whenever this issue is presented. So it is uniformly held that the previous declaration of the testator, offered to prove the mental facts involved, are competent. Intention, purpose, mental peculiarity and condition are mainly ascertained through the medium afforded by the power of language. Statements and declarations, when the state of the mind is the fact to be shown, are therefore received as mental acts or conduct.”
Therefore, where, as in a case like this, the circumstances attending the execution raise a doubt as to the mental strength of the testatrix, evidence that the disposition of the property runs along the line of her established friendships and previously-expressed intentions tends strongly against the idea of any undue influence, while evidence that it is contrary to such friendships and intentions makes in favor of improper influences. The testimony of her declarations shows a state of mind unfriendly to one of the principal devisees, and his letters to her indicate a mutual understanding of this estrangement and ill-will. Such estrangement is out of harmony with the recognition in the will. It is not often that a dying person forgets the obligations of kinship and affection, to reward with her property a more distant and unfriendly relative. It may indeed be done, ex mero motu, from a heightened and morbidly-active spirit of forgiveness, but as likely through the influences of solicitation, pressure, and fear; and which was in fact the cause, was for the jury, under all the circumstances of the case, to determine. See further in support of the competency of this testimony, Howell v. Barden, 3 Dev. 442; Hester v. Hester, 4 Dev. 228; Rambler v. Tryon, 7 Serg. & R. (Penn.) 90; Beaubien v. Cicotte, 12 Mich. 459; Cawthorn v. Haynes, 24 Mo. 236; Davis v. Calvert, 5 Gill & J. 269.
We pass to a second question upon which counsel place much reliance. The verdict of the jury, as returned to the court, was in the words, to wit:
“Question 1st; Was Lydia Foster, at the time the alleged will was made and signed, of sound mind and memory? Answer: Yes.
*79 “Question %d: Was it made and signed without undue influence on the part of the defendants or others? Answer.No.
“This is the verdict rendered by the jury.
“Thomas Plowman, Foreman.”
Counsel further complain of the manner in which the verdict was received and completed. It appears that when the jury were first sent out for consultation, three questions were submitted to them; that the court sent for them about midnight, in the absence of defendants’ counsel, and was informed
Again, at the close of the afternoon session when the jury retired, it does not appear that the court adjourned to the next morning. On the contrary, the record recites that the court took a recess, and then at midnight called the jury in. The record nowhere shows that the court in any manner misled counsel, or ordered a recess until one hour and then called the jury in at another. For all that appears, the court notified counsel of the time when the recess would end, or it may have itself waited in the court room for some communication from the jury. The fact that no adjournment was ordered, and only a recess taken, was notice to them to remain in attendance and watch the proceedings. And, as the record shows, their client, Dennis Mooney, was present in the court room at midnight when the jury came in. The duration of a session, the time of adjournment and of convening, and the length of any recess, are matters within the discretion of the trial court, and until it appears that such discretion has been
In reference to the instructions challenged, we remark that some refer to questions which the jury decided in favor of the defendants; and that the others, when construed in connection with the entire charge, would not have misled the jury.
We see nothing in the record to justify a reversal of the judgment, and it will be affirmed.