38 Mich. 412 | Mich. | 1878
The will of Isaac Pierce was admitted to probate December 2d, 1873. It was executed July 29, 1871, and he died July 12, 1873. On appeal by certain of his heirs at law, the will was held invalid. Error is brought against that judgment. The will gave a large portion of the property to his second wife and to her children, who were under age. His children by a former wife, from whom he was divorced, were much older. Two of his sons he made no provision for, saying they had been provided for before. To three others of his older children he devised land, and to- a married daughter he made a money bequest. He married his second wife, the plaintiff in error Emeline E. Pierce, in 1855, sixteen years before the date of- the will, and eighteen years before his death.
Before going into the general merits it may be proper to refer to two classes of objections to the rulings and course on the trial. It is claimed that certain rulings of the court were based on an omission of the counsel for plaintiffs in error to frame questions on the suggestion of the judge. It is not desirable that we who were not present at the trial should undertake to pass upon the merits of the occasions which led to some apparent loss of equanimity. But as matter of law, we are of opinion that rulings upon the admission or rejection of testimony must be based entirely on the legal quality of | the testimony offered. There is also in several instances what appears to be inconsistency in rulings as to the proper scope of cross-examination. The view which we take of the main questions in the cause renders most of 'these unimportant. As our own previous decisions have laid down with some fulness the rules applicable to cross-examination, we need not attempt to go over that ground now.
There is also an exception taken to the action of the court concerning the verdict, which is of practical importance. It appears from the facts set out by the judge that the jury retired to their room on Tuesday afternoon. On Wednesday afternoon the officer in charge was requested to inform the judge that they could not agree. Thereupon the judge directed the officer to tell them “ The judge does not believe it yet, and you might say to them that it is essential they agree to-night, as
Inasmuch as it is a very plain violation of public policy to allow any testimony concerning the individual views of jurymen on a case, the question of the propriety of the judge’s action- cannot be made dependent on any such testimony. If it were, it is enough to say that the juror himself made no statement on the subject, and the oath of three jurors that in their opinion the verdict was not influenced by the message, would be of no account as evidence of that result.
We cannot but think the tendency of the - message was to drive the jury into action which might not have been taken otherwise. There is no legal or moral presumption that before a jury has agreed will justify any speculation on the probable result. The one may be right as well as the eleven, and if right, may be able to persuade them. We certainly cannot say that there is anything in the present record which would render such a result impossible. And it is very possible at least not only that a message of the kind here given would be regarded by the outstanding juror as a somewhat strong intimation of the judge’s opinion concerning the plainness of the case, and the impropriety of holding-out, but also as a very harsh penalty for so doing. It needs no stretch of the imagination to infer what species of treatment a single juror might encounter beyond legitimate argument from associates who were likely to undergo an imprisonment which their agreement would not shorten.
Jury trials can never be safe unless the verdict is made as far as possible the unbiased and free conclu
This error, however innocently committed, as we are bound to suppose it was, must nevertheless, in our opinion, be held fatal to the verdict.
But the principal questions presented will be important on a new trial, and we proceed to consider them.
First, as to the various points bearing on intoxication.
Thére is no foundation in reason or authority, that we have found, for holding that a will is void for the intoxication of the testator. Intoxication is a term capable of no precise definition, and there- may be many degrees of it. If it exists to such' an extent as to deprive a testator of the power of controlling his conduct, and knowing what he is about, it will of course have a very evident bearing on his capacity. But if, on the other hand, the act which he does is one which his intoxication does not prevent him from doing with comprehension, it cannot of itself avoid it. It must always be remembered, that a will is not usually entirely or chiefly the result of the single interview when it is executed. It has nearly always been planned before and determined on. It does not require a very high degree of mental capacity to carry out a deliberate plan before adopted, and it is not impossible for a person more or
And we cannot agree with the circuit judge that the presumption against undue influence from the retention of a will uncancelled by a testator is any more significant than such retention would be in case of intoxication or any other temporary defect. It was held in White v. Bailey, 10 Mich., 155, that a finding by a jury that a will was the last will and testament of the decedent, and that at the time of executing it he was of sound disposing mind and memory, and capable of disposing of his property by will, necessarily negatived all undue influence. The statute makes no reference to particular causes of disturbance or incapacity. It lays' down a 'single standard, and all testimony against a will must be aimed at disproving the existence of the statutory capacity. If a person who is capable of knowing what he is about has a will in his possession that he is satisfied with and does not choose to cancel or destroy, the inference that it was not procured to be executed against his will or without his intelligent consent seems to arise as naturally in cases of asserted intoxication as in those of fraud or undue influence, and it would be equally unreasonable in either case to refuse to give it such weight as it naturally calls for.
We are also of opinion that the question of the effect of intoxication upon the capacity of the intoxicated person is not a scientific question to be determined by experts, but one within common observation, depending on the facts of each case, and to be determined from those facts. And we are further of opinion that inasmuch as it is a temporary condition, the testimony must be confined to the time involved in the transaction in controversy. If Pierce was not overcome by drunkenness when he made his will, it is not important what his condition was on other occasions.
Upon the question of undue influence, we have no doubt the general condition and surroundings of the
We think there is very little testimony in the record on this subject which should have been admitted at all. The domestic scandals of many years ago could have no legitimate tendency to prove any modern state of things, and could only serve to burden_ the case with irrelevant and discreditable details that might and evidently did prejudice the jury, but which had no tendency whatever to show influence in 1871. The law does not confine the power of making wills to persons of blameless character, nor does it disqualify all others from being legatees. And whatever may have been the relations of the testator and his second wife eighteen or nineteen years before his death, and whatever may have been the circumstances of their marriage, it cannot be permissible to draw inferences from them concerning a condition of things many years thereafter, which if existing at all could be proved without difficulty as an existing fact, and not a possible contingency.
With all this irrelevant testimony out of the case, we have found no very tangible evidence upon'the subject of undue influence at all, or of any interference by the wife with the husband’s actions.
The doctrines applicable to undue influence were so fully discussed in Wallace v. Harris, 32 Mich., 380, that there is no occasion to repeat them here. And the rules laid down in Harring v. Allen, 25 Mich., 505, excluding the statements of a testator upon the specific fact of undue influence bear very strongly on several items of testimony in the record.
We referred in Latham v. Udell, and we think it not' improper to refer again to the wrongs done under color of law, by the attempts which are becoming so common as to be dangerous to the security of private property, to overthrow wills because they do not suit the notions of those who determine their validity. The right to
We do not think it necessary to refer to the errors alleged on minor points which, whether well or ill founded, will not probably come up again. The plaintiffs in error were, we think, entitled to some charges which were not supplied by the charge actually given; but the whole theory of the contestants as to the proper range of testimony was so radically wrong that little service would be rendered on a new trial by special references to the charges asked or given on the facts as introduced.
The judgment must be reversed with costs and a new trial granted.