29 App. D.C. 198 | D.C. | 1907
delivered the opinion of the Court:
Four specifications of error have been assigned by the appellants. The first three relate to the issue of undue influence. The fourth relates to that of testamentary capacity, and is that the court erred “in refusing to instruct the jury to return a verdict of £yes’ in respect to the issue as to whether testatrix was of sound and disposing mind, as set forth in caveatces’ second prayer.”
Inasmuch as testamentary capacity is the primary question in such cases as this, and the issue relating thereto was, as usual, the first in order of submission, we shall first consider the error assigned thereon.
The following facts appear substantially without question: Testatrix was about eighty-two years of age, on February 11, 1905, and physically weak. She came from Connecticut to-Washington about forty years before her death, and obtained a position in the Treasury Department as a clerk. Because of' her advanced age she was compelled to give up her position some five or six years before her death. Her entire estate, amounting-to about $7,500, at the time of her decease, was the result of savings from her salary. Aside from clothing, a watch, some-inexpensive ornaments, and books, the estate consisted of notes-secured by liens upon real estate. Her practice had been to in
Some years prior to her decease, the'Morgans, who had recently intermarried, came to the La Betra house to live, and made the acquaintance of the testatrix. Mrs. Morgan and testatrix became intimate friends, and evinced much affection for each other. These intimate relations continued after the Morgans established homes in other parts of the city, and in May, 1902, testatrix, who had attended the funeral of an old friend in an undertaker’s establishment, and was much affected thereby, wrote and signed instructions directing that in case of her serious illness the Morgans were to care for her, and in the event of her death to see to her proper burial. She frequently spent the day in the Morgans’ house, and about one year before her death went to live with them. Mrs. Morgan testified that testatrix said to her: “I am old and sick, and need some person to take care of me.” Testatrix had made several wills during some years before her death, changing bequests by reason of
The caveators introduced a considerable number of witnesses to show incapacity on the part of the testatrix at the time of the execution of the will. These had known her well for from twenty to thirty years, and had opportunities to know her mental condition during the time.
It Avould serve no useful purpose to review the testimony at length. Some of it, by itself, was of no very great weight, as it tended to show that testatrix had become enfeebled in body and mind during her last ten years, but fell short of showing total incapacity. She was described as becoming forgetful, repeating the same thing frequently during a short conversation, and talking incoherently. One of these, however, who had known testatrix intimately for many years, had visited her and talked with her while at the Morgans. She testified that she observed quite a decline in her mental and physical strength ■during these later years. Her momery was failing very fast
In the fall or winter of 1904, after another demand to cash a note, he went to see her and asked her if she really wanted the money. She said “No.” Mrs. Morgan was present at the interview, and remarked: “Well, that is the way with Aunt Julia; she never knows what she wants to do from one day to
Testimony tended further to show that it had been the practice of the company, when interest was collected, to have her get the proper note from her safe deposit, and bring it for indorsement of the credit. During the last year of her life she had on three different occasions returned with the wrong note; and that on one occasion she had made three trips before presenting the right note.
Other testimony tended to show that Mrs. Morgan had stated on one occasion that she was hunting testatrix, who had left home to visit her broker’s office, and had gotten lost. The office was but a few blocks from her home. Also that Mrs. Morgan had said that testatrix had gotten lost twice on similar trips; that once she had taken an 11th street car, and gone out to the end of the track; another time she had taken a Mount Pleasant car, and had been found at that place, which was several miles away.
The caveatees introduced a less number of witnesses than the caveators had, whose testimony tended to show that they knew testatrix well, and that, though physically weak during the last year of her life, she was mentally sound and capable of executing a valid will.
The prayer of the caveatees to direct the jury to answer “yes” to this issue was offered at the conclusion of all of the evidence. Having refused it, the court gave all of the prayers requested
After a careful examination of the testimony, we are of the opinion that the court did not err in refusing the appellants’ prayer to direct a verdict.
It is the province of the jury to determine the credibility of the witnesses and the weight to be given to their testimony, under proper instructions for their guidance, which, as we have seen, were given as requested by the appellants. It is only when, conceding the credibility of the witnesses, and giving effect to every legitimate inference that may be deduced from their testimony, the party having the burden of proof upon an issue has plainly not made out a case sufficient in law to entitle him
Another way of stating the rule in such cases is this: If fairminded men might honestly draw different conclusions from the evidence, the fact must be determined by the jury under proper instructions as to the law applicable thereto. McDermott v. Severe, 202 U. S. 600, 604, 50 L. ed. 1162, 1165, 26 Sup. Ct. Rep. 709, and cases cited. See also Mosheuvel v. District of Columbia, 191 U. S. 247, 252, 48 L. ed. 170, 172, 24 Sup. Ct. Rep. 57, 17 App. D. C. 401.
We have not recited the testimony offered on behalf of the caveatees to rebut the case made by the caveators, and have rested our conclusion on the sufficiency of the latter, because it is not within the province of an appellate court to pass upon the weight to be given the evidence as a whole, any more than upon the credibility of the several witnesses. If the evidence be regarded as sufficient, under the requirements of the law in a particular case, to warrant its submission to the jury, and their verdict has been approved and carried into judgment by the trial court, the consideration of the appellate court is confined to errors of law in respect of the admission and exclusion of evidence, and the charge. Ætna L. Ins. Co. v. Ward, 140 U. S. 76, 91, 35 L. ed. 371, 376, 11 Sup. Ct. Rep. 720; Barbour v. Moore, 10 App. D. C. 30, 50.
The conclusion at which we have arrived renders it unnecessary to consider the errors assigned in respect of the issue of undue influence. The verdict on the issue of testamentary capacity being sufficient to support the judgment, it would not avail appellants if error could be shown on the other. To obtain reversal, error would have to be shown in respect of both. McDermott v. Severe, 25 App. D. C. 276, 282, 202 U. S. 600, 603, 50 L. ed. 1162, 1165, 26 Sup. Ct. Rep. 709.
There was no necessary connection between the determination of the two issues; and it is not perceived how error in respect
Rinding no error for which the verdict on the first issue could be set aside and a new trial thereof ordered, the judgment must be affirmed with costs. Affirmed.
The appellants, on March 12, 1907, applied for a writ of error to the Supreme Court of the United States, and on March 14, 1907, the writ was allowed, Mr. Chief Justice Shepard delivering the opinion of the Court:
The appellants have applied for a writ of error to review this judgment in the Supreme Court of the United States.
The value of the estate claimed under the will offered for probate is about $7,000. The bequests to the two appellants combined amount to $4,200, and the remainder of the estate, after three small legacies, is bequeathed to Charles H. Adams. However, the latter, whose interest under the will is apparently greater than that which he will receive as one of the three next of kin in case of intestacy, is one of the contestants of thé will. Decatur Morgan, one of the appellants, is the .executor named in the will and charged with its execution. We entertain some doubt whether the appellants are entitled to the writ of error under the decisions on which they rely. Overby v. Gordon, 177 U. S. 214, 218, 44 L. ed. 741, 743, 20 Sup. Ct. Rep. 603; Shields v. Thomas, 17 How. 3, 15 L. ed. 93; New Orleans P. R. Co. v. Parker, 143 U. S. 42, 51, 36 L. ed. 66, 68, 12 Sup. Ct. Rep. 364. Following our rule in cases of doubt, the writ of error is allowed; and the bond therefor, without supersedeas, is fixed at $300.