127 Pa. 564 | Pa. | 1889
Opinion,
The record of the hospital for the insane contained an entry which indicated that the testator’s father was admitted in 1849 to the hospital, because of intemperance continued for six months, and that he was affected with melancholia resulting from intemperance. As there was no proof, and no offer of proof, that this species of melancholia is hereditary, we cannot see the relevancy of the record entry. It may be, or it may not be, that tills form of mental affection is transmissible by inheritance, but we cannot assume that it is, in the absence of proof, and therefore the jury would not have been justified in inferring it had the entry been admitted. The first and second assignments of error are not sustained.
The plaintiff’s fourth point was affirmed without qualification. The first clause of the point declared that there was no sufficient evidence of general insanity of the decedent, and the conclusion expressed in the second and last -clause, was, that therefore the burden of proof was on the defendants to show mental unsoundness at the very moment of execution. An unqualified affirmance of the whole point was a positive direction to the jury that the evidence was insufficient to show general insanity. In view of the large amount and serious character of the testimony given by the defendants, as to the testator’s mental condition shortly anterior to the making of the will, parti cularly during the summer of 1884, when he became an inmate of the insane asylum, we think it was going too far to say there was absolutely no evidence of a general insanity sufficient for the consideration of the jury. The answer should have been qualified so as to subject the testimony to tbe action of the jury, and that if it failed to satisfy them that there was a condition of general insanity at any time before tbe will was made, then the burden of proof as to the testator’s condition at the time of execution was on the defendants. We feel obliged to sustain the third assignment of error.
We do not sustain the fifth assignment because we think the defendants’ first point is an overstatement of the essentials of testamentary capacity. It is certainly not the law that the testator must be capable of appreciating, and knowing, and remembering, and calling to mind the value and extent of his property at the time of executing his will. The language of the point is exceedingly broad. Literally it means that there must be an ability to remember and call to mind all the items of his property, and also to know and appreciate, as well as to remember, the value of each item or at least each subject of ownership, in order that the te.stator may reach the standard of the point. Persons having a large and diversified estate would be practically incapacitated from testacy, if so severe and exacting a standard as this were established. We question whether there is any improvement in the definition of testamentary capacity upon that given by Judge King in 1853 in the case of Leech v. Leech, 21 Pa. 69, to wit: “ A disposing mind and memory, in the view of the law, is one in which the testator is shown to have had, at the making and execution of a last will, a full and intelligent consciousness of the nature and effect of the act he was engaged in; a full knowledge of the property he possessed; an understanding of the disposition he wished to make of it by the will, and of the persons and objects he desired to participate in his bounty.” This description of testamentary capacity has been many times approved and never questioned. While modifications of it may be needed in particular cases to meet particular facts developed, it contains all the substance of a correct general definition, and may at all times be expounded to juries as a guide to them in their deliberations with entire safety.
The second point of the defendants should, we think, have been affirmed. We see no objection to its postulates just as they are stated. Nor is the point in any degree involved or obscure. It is drawn with much care, with clearness of expression, and with entire accuracy as to its legal truth. Thus, considering it in detail, it is certainly true that it requires less
In illustration of the propriety of this point it cannot be overlooked that, while the plaintiff wa.s in fact the testator’s wife when the will was made, she was in all probability his mistress up to that time and for several years before. He so declared her to be in her presence and without contradiction from her, to the witness, James T. Thompson, and to the witness Broughton, he said she had been his mistress for thirteen years. In addition to this, the entirely uncontradicted evidence as to the manner in which they lived together, was highly persuasive, indeed quite convincing, that this was their true relation. The circumstances, both of the marriage and the will, were also of a very unusual and gravely important character as affecting the very question of undue influence. The marriage took place on November 18, 1884, the will giving all the property of the testator to the plaintiff was executed on November 15th, and on the 16th he died. At the time of the marriage he was confined to his bed, as he was also when the will was made, with the last and fatal sickness of which he died the next day. It was literally a death-bed marriage, and a death-bed will. That he was in an extremely enfeebled condition of body was the undisputed testimony of all.
That he was also extremely enfeebled in mind wras alleged by the defendants, and that allegation was supported by a great mass of entirely disinterested, and, much of it, highly intelligent, and some of it highly skilled testimony. A very great number of distinct acts, transactions, facts, declarations, and conversations done and uttered by the deceased, which were quite inconsistent with his mental soundness, were given in evidence, and might have been received and acted upon un
It is not necessary to review the testimony on this subject. It abounds with the usual disgusting details of a life of gross intemperance, profligacy, and sensuality. The results arrived in due time. In the summer of 1884 he was taken to St. Joseph’s Hospital for a time, and after that to Kirkbride’s Insane Asylum where he remained for several days. Dr. Jones, who was for many years in charge of the male department of that institution and saw him and treated him while there, testified, that he was in a state of dementia with delusions. When asked to explain what he meant by this he said: “ It is a state of great weakness of mind. It is the condition into which most insane patients ultimately sink, in which there is a loss of reason, intelligence, and a weakening in short of all the mental faculties.” This was from August 27th to September 2,1884, less than three months before his death.”
. The foregoing being a very brief mention of a part of the facts, either undisputed or very well supported by affirmative testimony, the matters of which the defendants’ second point was predicated brought them conspicuously and compactly together, and required their submission for the consideration of the jury. Thus, the point asked an instruction that the jury might take into consideration “ the state and condition of mind of the testator ” at the time of making the will, “ the
The marriage was suggested by another and not by the testator ; it was contracted, and the will was made in the bouse of the sole beneficiary, as to whom the defendants bad a perfect right to argue, and ash for a finding, that she was the testator’s mistress up) to the moment she became bis wife. In the ease of Dean v. Negley, 41 Pa. 312, we held that the mere fact of the unlawful relation of mistress to a testator was enough to justify an inference of undue influence, and that fact, together with tbe fact of tbe devise to ber children, would bo enough to justify a verdict against the validity of the will. During the largest part, nearly all, of the period of the intimacy between the testator and the plaintiff, she was the wife of another man from whom she was separated, but not divorced. If there was unlawful intercourse between them it was adulterous, and comes directly within the terms of the decision in Dean v. Negley. Added to that was the fact, that by tbe terms of tbe will, made almost in tbe article of death, in her house, within her custody, and substantially in ber presence, drawn by a person who was at least a stranger to the testator, the whole estate of the testator was given to the plaintiff to the exclusion of all bis relatives and of the deserving charity, who bad been tbe sole objects of his bounty in Ms former will. This circumstance was considered of importance in tbe case of Rudy v. Ulrich, 69 Pa. 177, commenting upon Dean v. Negley. While in the present case the fact that a marriage had taken place prior to the will relieves the plaintiff from the most serious risks which she would have encountered under Dean v. Negley, it does not relieve the testamentary act from the imputation of a continuance and a present exertion of an undue influence, if tbe jury in view of all the facts of the case inclined to such a belief. But from tbis opportunity they were practically excluded by tbe refusal of tbe court to affirm tbe second pjoint of the defendants. We think the point should
In one sense the first of Mr. Ashhurst’s points is true, because it includes the idea that the testator, although previously incompetent, had become, and was, mentally capable at the time of executing the will, and regarded in that manner the point is certainly correct. Yet the point is so drawn that it might well mislead a judge into the supposition that its real meaning was, that if at an}*- one time in the testator’s previous life he had become temporarily incompetent, no matter how briefly, the whole burden of proving a subsequent recovery and a capacity at the time of execution rested upon the proponent. This is certainly not the law; and, because we would not reverse on the ground alone of this one refusal, we will not say there was error in refusing the point in the language in which it was framed. The seventh assignment is not sustained.
The eighth assignment is not sustained because while the point was abstractly true there are no facts in the case which make it applicable.
We cannot sustain the ninth assignment because the first two clauses of the point which it covers are too strongly stated, and the point was simply refused as an entirety. It is not legally true that one who has merely “ given indications of mental unsoundness ” is not at liberty to do what he likes with his own, or that in such case every sign of partiality or injustice must be viewed with strong suspicion. Persons may easily give “ indications of insanity without in reality being insane, and they cannot be charged with testamentary incapacity for so unsubstantial a reason as that. Dr. Ray’s report in Pidcock v. Potter, 68 Pa. 353, is not the opinion of the court.
We cannot sustain the tenth and eleventh assignments because the points which they cover are not sufficiently certain or specific to justify the affirmance of either. The change of character spoken of may be from bad to good, and certainly such a change cannot be regarded as indicating mental aberration of any kind.
The twelfth assignment is sustained because the point to which it refers is entirely correct and should have been affirmed just as it stood.
The point covered bj*- the thirteenth assignment is not a legal
The fourteenth assignment is of much more importance and we think it is sustained. Of course when the learned court below selected the testimony' of two witnesses on one side upon one subject, and read it at much length to the jury, it would naturally be inferred by the jury, that in the opinion of the court that testimony' was of controlling importance; and when there was an entire omission to read any of the evidence on the other side having a contrary tendency, they would naturally consider that in the opinion of the court such opposing testimony was of no efficacy and was not entitled to any consideration from them. If the testimony upon one side of a controverted question of fact is made prominent and conspicuous in the charge, common fairness requires that equal prominence should be given to opposing testimony having a contrary tendency. A careful reading of the charge impels us to say that we think it amenable to the criticism of this assignment. Though there was much statement and considerable argument, in the charge, of the testimony' favorable to the plaintiff, and
Edward Lynch, an attendant at Kirkbride’s, described his condition thus: “He was very peculiar; more so than any patient I had seen there. His mind was entirely gone; one time he admitted to me he had been a doctor, and that is the only thing I could get from him. He was incoherent, and he was full of delusion. I heard him say once that there had been men all around him going to shoot him — men all around his room — and he used to get very noisy in his talk. He ap
These are a very few of the matters in evidence as to his mental and physical condition. Other delusions and other facts were shown tending to establish the effect of his habits of dissipation and debauchery upon his mind and body, and they were far too numerous in the aggregate, and of too serious a character, to be passed over with so slight a reference in the charge as heretofore stated. A large amount of expert testimony was given by physicians of experience, character, and ability, on behalf of the defendants. It was all disposed of in the charge by repeating a remark of Dr. Price, the plaintiff’s medical witness, that he had no doubt the defendants’ medical witnesses were competent to give an opinion if they had seen Dr. Ruddach, but given as it was, he did not think it worth a fig. Such a treatment of that testimony by the court in charging the jury would naturally lead the jury to treat it in the same way. The writer has read that testimony and feels obliged to say that it was entitled to a far more serious consideration. A long hypothetical question, embodying the facts in evidence, was propounded to the medical witnesses. All of them expressed the opinion that, upon the • facts stated in the question, Dr. Ruddach was of unsound mind with scarce a possibility of recovery at the time the will was made. Dr. Wood, one of these witnesses, being asked to state his reasons for his opinion said: “ In the first place the history is plain of a long continued and excessive abuse of alcohol and of venery —causes which lead to mental deterioration and may lead to absolute dementia, or loss of mental power..... The symptoms were in a word those of chronic alcoholic dementia at that time, and were clearly not those of acute alcoholic poisoning, or of delirium tremens. The history of thé case during the man’s stay in the Pennsylvania Hospital is clearly that of chronic alcoholic insanity with dementia. The history of the case so far as it is afforded after that time is, that during his stay in the hotel the characteristic symptoms of alcoholic dementia were present and those of delirium tremens certainly not at all. Such a state I believe could scarcely be recovered from, even if it had lasted but for a few days. Having, how
Some idea of the extent of the testator's habit of drinking is conveyed by the testimony of one of the saloon keepers. He was asked: “ Q. During the last year of his life how frequently do you suppose he would take drinks at your place a day? A. I could safely say twenty. Q. Do you mean to say that he would average twenty a day? A. Yes, and I guess a great many more than that. 1 am positive of twenty. Q. What kind of liquors did he drink? A. Whiskey and champagne. Q. Was he in the habit towards the latter part of the time of getting whiskey at your place for nights? A. Yes, sir; he always used to take a small flask home with him on a night, saying that he couldn't sleep without it. Q. What would he put in it? A. Whiskey.” When it is considered that this was only one of the places he visited, it is not difficult to understand the effects which resulted upon the testator’s mental and physical condition.
We have made these few references to the testimony simply to illustrate what seems to us the incomplete character of the charge of the court in dealing with the case. In Burke v. Maxwell, 81 Pa. 139, the present Chief Justice in delivering the opinion said: “ When there is sufficient evidence upon a given point to go to the jury, it is the duty of the judge to submit it calmly and impartially. And if the expression of an opinion upon such evidence becomes a matter of duty, under the circumstances of the particular case, great care should be exercised that such expression should be so given as not to mislead, and especially, that it should not be one sided. The evidence, if stated at all, should be stated accurately, as well that which makes in favor of a party as that which makes against him.” In the case of McTaggart v. Thompson, 14 Pa. 149, we said: “ In addition, the defendants have just reason to complain of the one-sided character of the charge. It is objectionable because it resembles the argument of the advocate, rather than the impartial survey of the judge.” In Penna. Canal Co. v. Harris, 101 Pa. 80, we said: “The main complaint is that the case was not justly and fairly submitted to the jury; that the evidence and theory of the defendant were
, We are not referred to any testimony proving that no proceedings in lunacy were commenced against the testator in his lifetime, and we do not know whether such was the fact or not. This being the case, we think there was no propriety in the remarks of the learned court upon that subject, winding up with this statement in regard to the contestants: “ Their anxiety about the safety of his (testator’s) property and their concern as to the state of his mind seem to have commenced after his death.” Such a remark would naturally tend to create a prejudice in the minds of the jury against the defendants, and for that reason it is out of place in a charge. Even if there had been proof that no proceedings in lunacy were commenced against the testator in his lifetime, we do not think that circumstance would be of any weight in view of the facts of this case. It is true that in Irwin v. West, 81* Pa. 157, it was held that the omission to commence such proceedings might have some weight to be considered by the jury, but that was said with reference to the facts of that case. In the present case the testator had no near relatives — no parents, no children, or lineal descendants — and nearly all of such relatives as he had lived out of the state. His nearest relative in Pennsylvania, W. A. Ruddach, a cousin living at Norristown, said he did not have knowledge of a proceeding in lunacy, but that he thought there was such a commission; he had heard so but could not tell when. As the testator was neither an idiot nor a lunatic, and the worst effects of his mode of life did not be
As to the seventeenth and eighteenth assignments, we think it altogether likely that the learned judge did not mean to convey the idea that proof of incompetency or undue influence must be positive as distinguished from circumstantial, in the character of the testimony offered, but nevertheless be did so charge in literal terms, and of course it was error. There is no rule of law that allegations of mental unsoundness or undue influence in feigned issues on wills must be established by positive evidence, and hence to say tbat it must, in a charge to a jury, tends to give the jury an erroneous idea of the quality or character of proof required. We are, therefore, obliged to sustain these assignments.
We do not think the nineteenth assignment is of any material consequence and, therefore, do not sustain it. The words, “ overwhelmingly established,” in the charge in relation to Mrs. Dixon’s conduct towards the testator are, perhaps, too strongly stated, in view of some of the evidence, but tbe whole subject is one of very minor consequence, and we would not feel at liberty to reverse on tbat ground.
Judgment reversed and a new venire awarded.