94 Tenn. 328 | Tenn. | 1895
This is a contest of the will of Marcentis G-. Peery, upon an issue of devisavit ml non. The issues tendered in the Circuit Court were, first, that the paper writing was not the last will of M. G. Peery, and, second, that it was not such will, because it was procured • to be executed by improper means and undue influence. The cause was tried before the Court and a jury, and a verdict and judgment (rendered against the validity of the will, and proponents have appealed and assigned errors.
It is assigned as error that the Court admitted certain declarations- made by the testator to his son, M. - B. Peery, some weeks before his death, and about six months after the will was made. The substance of this declaration made by the father is, that he had to make the will as he did in order to have peace at home. This evidence was excepted to as hearsay, and because it could not be introduced to impeach the will as made, and the objections were overruled.
It has been held that the testator’s declarations, after making the will, are admissible to show his mental condition at the time the will was made, but not to show undue influence. If, therefore, the
The proponents were entitled, on request, to have this testimony limited by the Court to the point of the testator’s mental condition at the time the will was made, and to have the jury instructed that they must look to it for that purpose alone; but, in the absence of any request to so limit it, the objection was too broad, and the Court was not in error in refusing to exclude the declarations, and in failing to limit them. It is true the main contest in this case is over the question of undue influence, and it was so treated by counsel and Court, still, the issue of mental infirmity was tendered in the pleadings, and to some extent supported by evidence, and it cannot be overlooked or ignored.
Upon the general question of admitting such declarations, see Pritchard on Wills, Sec. 147, and cases cited; Beadles v. Alexander, 9 Bax., 604, 606; Linch v. Linch, 1 Lea, 526; Maxwell v. Hill, 5 Pickle, 584, 594, 595. See also, In re Hess’ Will, 31 Am. State Rep., note, page 690. In Beadles v. Alexander, 9 Bax., 604, the declarations
Other errors are assigned which we need not consider in detail in the view which we have taken of the case. The first and most material assignment is, that there is no proper and sufficient evidence to support the verdict.
The’ rule laid down as. to the force and effect of a jury’s verdict is not different in cases of contested wills from that laid down in other cases, and we proceed to examine the facts as tested by the usual rule.
The testator died in 1888, being about seventy-four years of age. He had been twice married. By his first wife he had four sons, who are the contestants of the will. By his second wife he had three sons, one of whom died, and the other two, with his widow, • are the chief beneficiaries under the will. His second wife had also two children by her first marriage, before she married the testator. There were thus three sets of children, two of them the children of the testator, and the other set, the
It is not insisted that the testator did not have mental capacity sufficient to. make a will, but there is proof that for some years his health had been precarious from a heart trouble, and that his mind was not as active or vigorous as it had been formerly. There is no evidence that the last set qf children had anything to do with making the will or causing it to be made. The contention is wholly that the undue influence was exercised by the wife in favor of this last set of children. It is not insisted that she attempted to get anything for her own first set of children, and there is no evidence tending in that direction, except the testimony of a single witness. A summary of the testimony is as follows :
Mr. McLanahan testified that about twenty-five years ago he had a conversation with the testator, in which he stated that he thought as much of one of his children as of another, and was going to treat them all alike.
M. B. Peery, one of the first set of children and the principal contestant, states that he repeatedly heard Mrs. Peery say she intended to see that the older children got nothing off the place, and that she intended -to see that her husband made a will and cut the older children out. This was some twelve or fifteen years before the will was made.
• In 1878 or 1879, J. D. Aydelotte, heard Mrs.
About the year 1881, Ras Hill heard Mr. Peery say that his wife had been after him to make a will and give her children by her first husband a share with the others, and he had promised her to do - so, but that he did not intend to make a will if he died in his right mind, but intended to treat all his children alike.
Mrs. Mary Hutchison testified that Mrs. Peery told her that she was going to see that the property was willed to the younger children, as the older ones were off, working for themselves.
Mrs. Burchard testified that she heard Mrs. Peery say it looked to her like the younger children ought to have the property, as they had stayed at home, while the older children had gone off, working for themselves.
Mrs. Cave Peery says that, about twenty-three years ago, she heard Mrs. Peery say that she intended to see to it that Mr. Peery made a will.
Frank Nunn testifies that, about 1870, Mr. Peery, at his 'wife’s request, stopped a plow that she might have a horse to make a visit. She was then in bad health. He heard her say that she intended to have him make a will, and leave the children of the first marriage out.
J. S. Prince states that he heard the testator say he did not intend to make a will; that the law made a good enough will, and he intended to treat his children all alike. This was some one to three years before his death.
Mrs. Gracey Whiteside testified that, a short time before the will was made, she heard Mrs. Peery say she thought her husband ought to made a will and give the home place to the younger children, because they had stayed at home and worked, while the others had gone off.
M. B. Peery, one of the first set of children, testifies that, in 1888, after the will was made, he asked his father why he had made such a will as he had made, and his father replied that Mrs. Peery had been after him for years to make a will, and that he had to ' make it as he did to have peace at home.
The will was written by J. H. Peery, a young-attorney, who was the kinsman of the testator. The testator personally went after him to his father’s home, to get him to write the will, and told him how he wanted it written, and discussed with him his pecuniary condition. The attorney went to the testator’s home, March 7, 1888, to write the will, and remained there all night, and the will was written that night. Mrs. Peery, the wife, was in the
This is substantially all the evidence in the case upon which the jury found against the will, and the question is, Is there any evidence of the kind and character required to set aside a will in this record? It has been said that it is impossible to define what it takes to constitute undue influence in any such general language as would be applicable to all cases, but it has been wel-1 said that the .question, reduced to its last analysis, is “whether the will is the will of the testator or that of another.” McClure v. McClure, 2 Pickle, 176; Pritchard on Wills, Sec. 128. It is not influence that vitiates, but undue influence; and it must go to the extent of depriving the testator of his free agency, and amount to moral coercion which he is unable to resist. Nailing v. Nailing, 2 Sneed, 630; Wisener v. Maupin, 2 Bax., 364. Eafch case must rest upon its own circumstances, and be controlled, to some extent, b.y the mental characteristics, and the mental and physical condition, of the testator, and, in a subordinate degree, by the mental strength and will power of the dominating influence, as well as the opportunities for its exercise. McClure v. McClure, 2 Pickle, 176. When the 'charge is that such undue influence is exercised by the wife, other considerations also enter into the matter. It cannot be presumed, because the wife has ample opportu
There is a discrimination in this will in favor of the younger children, but is explained upon grounds not unreasonable, and there is no such inequality in the distribution of the estate as to shock the conscience of the Court or to raise a presumption against the will upon its face. The evidence is ample, and it is conceded, the testator had ■ mental capacity to make a will, though his health and
While the will shows a preference for the younger children, the reason for it is given, and appears to be not only natural, but reasonable. If the wife had such controlling influence over her husband as to completely dominate his will, and deprive him of his free agency (and the evidence must go to that extent to' be effective), it is strange she did not
The declaration made to M. B. Peery by the testator is not sufficient to prove the fact of undxie influence. Undue influence cannot be supported alone
It is shown that the testator, some time after making his will, spoke of its provisions to one of the subscribing witnesses, and expressed satisfaction with its contents, and explained why he made an apparently unequal division of his property. He had then had ample time and opportunity to have revoked it, as it was in the custody of the draftsman, and not of his wife; or he could have easily have had another written. This is a strong, convincing indication that it was his will, and according to his desires. Floyd, v. Floyd, 49 Am. Dec., 626; Irish v. Smith, 11 Am. Dec., 648.
In all cases where undue influence is attempted to be proven, the case must turn, not upon the number of witnesses examined, but the character and force of their testimony, and the inquiry is, Does the testimony go to the extent of showing the exercise of such undue influence and dominion by the wife over the husband as deprived him of his free agency in making his will, and made it her will instead of his? If it fail to come up to this point, it matters not how great the number of witnesses, or how large the volume of testimony, there' is no
Contestants will pay the costs of appeal.