126 Me. 267 | Me. | 1927
An. appeal from decree of Judge of Probate, disapproving and disallowing instruments purporting to be the last will and a codicil thereto of Lydia M. Deering, late of Bath, deceased, the ground of disallowance being that the testatrix at the time the instruments were executed was not of sound mind as required by R. S., Chap. 79, Sec. 1.
The probate decree having been vacated by the appeal, the case was heard on new proofs and arguments in the Supreme Court of Probate, and there dismissed on the ground that the execution of the instruments in question was procured by undue influence. On exceptions, this Court, in Rogers Appellant, 123 Maine, 459, held that the appellate decree was error, and the case then stood on the docket of the Supreme Court of Probate as an original appeal, the question of undue influence, upon the record as then made, decided.
Upon rehearing, further evidence was offered for and against -the probate of the purported testamentary instruments, and by assent of the parties the case is now reported to the Law Court, with a reservation limiting the issue to one of testamentary capacity.
Precedent sanctions the report of this case. Chandler Will Case, 102 Maine, 72. It comes to us in the form of a transcript of evidence of approximately 1400 pages, accompanied by numerous exhibits. From this record, by the terms of the report, final decision of the question reserved is to be made upon the facts found in the legally competent and admissible evidence in the record submitted.
Lydia M. Deering died at Bath December 18, 1922, aged 84 years. On the 16th of February, 1922, ten months before her death, Mrs. Deering executed a will by which, after making bequests of $1,000 to each of her two sons, Harry G, Deering and Carroll A. Deering, she bequeathed the balance of her estate, amounting approximately to $40,000, to her daughter, Emma H. Rogers, naming Mrs. Rogers as executrix without bond. Eight days later Mrs. Deering executed a waiver of the provisions of the will of her husband, Gardiner G. Deering, who had died testate in October, 1921, and having thus increased her share in her husband's estate from $2,000, the amount
Under our statute, B. S., Chap. 79, Sec. 1, as amended, the only standard of testamentary capacity is whether or not the testator, or, as in this case, the testatrix, was of sound mind at the times the alleged will and codicil were respectively executed; that is, did she at those particular times possess such soundness of mind as in the contemplation of the law enabled her to make a will or codicil, not the particular instruments in controversy. The question in each case is, had the testator or testatrix capacity to make a will? If of sound mind, he or she can make any will however complicated. If of unsound mind, no testamentary instrument however simple can be deemed a valid will. Chandler Will Case, 102 Maine, 72. Delafield v. Parish, 25 N. Y., 97.
In determining whether the mind of the maker of a will was a “sound mind” and therefore a “disposing mind”, this Court, in Hall v. Perry, 87 Maine, at page 572, says: “A ‘disposing mind’ involves the exercise of so much mind and memory as would enable a person to transact common and simple kinds of business with that intelligence which belongs to the weakest class of sound minds; and a disposing memory exists when one can recall the general nature, condition and extent of his property, and his relations to those to whom he gives, and also to those from whom he excludes, his bounty. He must have active memory enough to bring to his mind the nature and particulars of the business to be transacted, and mental power enough to appreciate them and act with some sense and judgment in regard to them. He must have sufficient capacity to comprehend the condition of his property, his relations to the persons who were or should have been the objects of his bounty, and the scope and bearing of the provisions of his will. He must have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive, at least, their obvious relations to each other, and be able to form some rational judgment in relation
The crucial question to be determined is the mental capacity of the testatrix at the respective times the two instruments offered for probate were executed. And as bearing upon this question, the testimony of the witnesses to the instruments, as well as that of other persons then present, has been supplemented by the bringing in of relatives, friends and neighbors, who recount from their recollection incidents, facts and conditions which they observed. The attending physician states his observations, and finally psychiatrists state their opinions with definition and classification of the testatrix’ mental condition from a medical standpoint. It is not possible within the limits of this opinion to make a detailed analysis of all the evidence, nor by extended quotation to compare the relative values of conflicting evidence upon points in issue. And while we have examined and carefully considered the entire record and accompanying exhibits, we can but summarize in the statement of our findings and conclusions.
In early life Mrs. Deering was the usual prudent New England housewife, cooking, sewing, and performing all the usual household tasks which the average woman in similar circumstances found to do. She was a frail, slight woman, but active and industrious. Not a deeply religious woman, she nevertheless was a regular attendant at church, and for a time a member of the choir. Her social activities were not many, but she joined and participated in meetings of social organizations to which she belonged, travelled with her husband for short visits to Boston, New York and Washington, joined in luncheon parties at near-by inns and resorts, and called upon her neighbors and friends who in turn were frequent visitors in her home. In short, she was a normal, average woman.
In 1905 Mrs. Deering, being then about sixty-seven years of age, had become afflicted with a nervous trouble. She was inclined to be melancholy and in apparent mental distress, silently weeping without apparent or stated cause. Her condition was such that her husband engaged the services of a masseuse, and followed this treatment by sending her to a sanitarium in Melrose for a period of eleven weeks.
Her physical and mental deterioration progressively continued and increased during the next two years. All witnesses are in substantial accord that she continued to spend her days in inactivity with increased melancholy, weeping and wringing of hands. And while her replies are stated to have been responsive, it is evident that questions propounded to her were simple and her answers hardly more than simple assent or negation. She retained some memory with ability to recognize relatives, and call to mind old acquaintances when their identity was made known to her. In the fall of 1920 Mrs. Deering fell and fractured her hip. For weeks she was confined to the bed, but in the following spring recovered sufficiently to be about the house, moving with the aid of crutches or a cane and with the assistance of her attendant. Adding this unfortunate physical
It is difficult for witnesses to fix dates, and equally difficult in a judicial review of evidence to determine with precision the exact order of events, but in the testimony and inferences fairly to be drawn therefrom we find that at this period of her life Mrs. Deering was not only seriously crippled by her injury but also increasingly weakened in her mental capacity. She no longer expressed voluntary thought or desire in matters of household management. Her attendant was not only a constant companion, assisting her as she moved about, but also dressed and undressed her, and gave her baths as in the past, including the simple service of washing her face and hands. She was treated by her husband and attendant as incapable of self judgment or vblition. She was not consulted in household affairs, and her wishes given little if any consideration. Her melancholy and depression were more constant, and her memory was becoming more impaired. In the midst of substantial prosperity which had come to her husband in his later years, poverty and want were her constant worry.
■ In October, 1921, her husband, Gardiner G. Deering, died. It is not clear how fully and completely Mrs. Deering realized the nature of his illness and the incidents of his passing. It does appear that she mourned his loss. And while she was in a state of mind in which illusions of her husband’s continued existence mingled with a realization that he no longer lived, she had not reached a state of mental weakness which left her entirely insensible to the natural instincts of grief.
She and her husband had been living in the family homestead with a housekeeper and Mrs. Deering’s attendant. After Mr. Deering’s death, Mrs. Rogers, the only daughter, who lived near by, assumed direction and supervision of her mother’s home and business affairs. She caused her name to be added to Mrs. Deering’s deposits in the banks, and paid the bills of the house by her check drawn upon her mother’s accounts. She wrote her mother’s name in endorsement of such checks as came payable to the latter. Joining with her brothers, she discharged one of the servants and arranged that the other should act both as housekeeper and attendant for Mrs. Deering.
Her family after her husband’s death consisted of three sons, Frank, Harry and Carroll, and the daughter, Emma Rogers. The sons continued the shipbuilding business founded by Mr. Deering, and all were on terms of closest love and affection with their mother. Each had married, and their children were frequent callers upon the grandmother. Apparently, with the exception of Mrs. Frank Deering, the wives of these sons enjoyed her love and confidence. For reasons which are unimportant, Mrs. Frank Deering was persona non grata in the Deering family circle; and while this situation in no way minimized Mrs. Deering’s affection for her son Frank, his children, because of their mother, were not in as high favor with their grandmother as were the other grandchildren of the family.
In February, 1922, Frank Deering, the eldest son, died, after a comparatively short illness. His funeral was February 15th. On the day following, through arrangements made by the daughter, Mrs. Rogers, and without the knowledge of the sons, Harry and Carroll, Mrs. Deering made a will. She had previously in 1916 made a will by which her entire estate was given to her four children. This will was in the possession of Mrs. Rogers. Mr. Bridgham, local attorney, who had acted for Mrs. Rogers’ husband in various matters, was called on the phone by Mrs. Rogers and summoned to the Deering homestead. He came in the early afternoon, and his statement of what followed is substantially that he was practically a stranger to Mrs. Deering, having met her only once before. He had been informed by Mrs. Rogers that a will was to be drafted, and after greeting Mrs. Deering asked her if she wanted to make a will or change her will. He says she indicated assent but her exact words are not given. He states that he then asked her where she wanted her property to go, and her answer was “that she wanted Carroll and Harry to have a thousand dollars each and the rest to go to Emma.” He asked her if she wanted Emma to act as executrix, and she an
The sons, Harry and Carroll, were not present when this will was made. The evidence leads us to conclude that they had no knowledge of its existence until some few days after it had been made, and had no information in advance that such action was to be taken by their mother. The will was deposited in her own vault by Mrs. Rogers and kept in her possession thereafter, and there is no credible evidence that the fact of its existence or its contents were ever thereafter mentioned by Mrs. Deering.
It is urged by the proponents that this will, bequeathing substantially the entire estate of Mrs. Deering to her daughter, Mrs. Rogers, was made in accord with a long cherished plan and with a definite purpose. Mrs. Rogers testifies that after her father’s death and the reading of his will, which; giving only $2,000 to Mrs. Deering, divided his estate equally among his four children, she and Mrs. Deering learned for the first time that years before Mr. Deering had given to each of the boys substantial stock holdings in the G. G. Deering Company, a shipbuilding enterprise in which he and his sons were engaged. Frank and Harry received 308 shares each, and Carroll 208. Mrs. Deering received 16, but Mrs. Rogers had none. She says that her mother was much disturbed because the father had failed to include her in his stock distribution and felt that an injus
Mrs. Rogers’ statement of her mother’s affirmative, .voluntary discussion and consideration of the inequality of the daughter’s share in her father’s property does not accord with the condition of mind which the previous history of Mrs. Deering discloses. Reason compels the conclusion that at most Mrs. Deering acquiesced in any comments, suggestions or proposals advanced by the daughter. Mrs. Rogers is a deeply interested witness. Under this instrument she takes, to the exclusion of her living brothers, and the children of her deceased brother Frank, substantially the entire property of which her mother was possessed. It is upon her statement, corroborated only by the doubtful statement of Mellie Lermond, that the claim that the provisions of this will were in accord with previous purposes must rest, and her statement does not stand unrefuted. Her brother, Harry Deering, testifies that instead of the fact of the distribution of stock to the boys by the father being a matter of new knowledge after Mrs. Deering’s death, in fact their entry into the business and their father’s distribution of stock to them was at the time it occurred well known by all members of the family; and if we believe him, who is without marked interest in the sustaining of this will, the theory of cherished purpose advanced by Mrs. Rogers fails.
The testimony of the scriviner discloses that Mrs. Deering stated to whom she wanted her property to go, and excluded from her bounty the children of her son Frank. On the surface and standing alone,
It is evident, however, that the son, Harry Deering, was otherwise interested in his mother’s testamentary affairs. He learned upon conference with an attorney that under the statute, R.'S., Chap. 80, Sec. 13, Mrs. Deering could waive the provisions of her husband’s will and take a third interest in his estate. The will of Mr. Deering bequeathed $2,000 to his widow, and divided the residue of his estate, amounting approximately to $400,000, equally among his four children, Frank, Harry, Carroll and Emma. As already appears Frank had died, and his children by right of representation were beneficiaries under the Gardiner Deering will in common with the then surviving sons and daughter.
Harry Deering testifies that a few days after February 16th he called on his mother and suggested to her that she waive her husband’s will and take under .the statute. He says she acquiesced in
Mrs. Rogers, the daughter, says that her brother Harry discussed the waiver of the father’s will with her, and on February 24, 1922, she went to her deposit box and brought the will which her mother had made eight days before to the house, and again summoned Mr. Bridgham to act as scriviner of a new instrument. He came up that afternoon, and states that he found on his arrival Mrs. Deering, the daughter Mrs. Rogers, the housekeeper Mrs. Lermond, and the same neighbor Miss Moore who had acted as witness to the will of February 16th. Harry Deering came in shortly. Mr. Bridgham’s testimony is:
“Q. What was said in regard to the business which it was desired that you should transact, prior to Harry arriving?
A. There was nothing mentioned until Harry arrived.
Q. Did you ask Mrs. Lydia Deering what she wanted of you?
A. No, I simply shook hands with her, said ‘how do you do’.
Q. You knew that the business you had come on was for her, Emma had said that to you?
' A. Yes, said her mother wanted to do some legal business.
Q. Did you ask her what she wanted of you?
A. Didn’t make any talk except say ‘how do you do’ until Harry arrived.
Q. She didn’t signify in any way what she wanted done?
A. I don’t think she did.
Q. Now when Harry arrived he passed you a paper which was a waiver of the provisions of Gardiner Deering’s will?
A. Yes.
Q. Harry said to you that his mother wanted to sign a waiver, didn’t he?
A. Yes.
Q. She didn’t say so?
A. No.
Q. Was that the first knowledge you had of the waiver, of her desire to sign, that came after Harry arrived and made his statement to you?
A. That is correct.
*278 Q. Then you asked Mrs. Deering if she did want to sign it?
A. I did.
Q. She said yes?
A. Yes.
Q. Did she say anything further in regard to the waiver or matters concerning the waiver excepting to answer your question when you asked her if she wanted to sign it, say yes?
A. Yes, I explained to her what the waiver was and I think she said yes or something like that.
Q. Do you recall her saying anything except yes — I mean do you recall her making any statement concerning the waiver any further than to assent when you explained to her about it?
A. I don’t recall any.”
And again the scriviner testifies:
“Q. Now after the waiver was signed did Mrs. Deering say anything in regard to the property that she would receive, the additional property that she would receive by reason of the waiver?
A. She did not.
Q. Did she indicate in any way that she understood that she would receive any other property by reason of the waiver?
A. She said nothing in regard to it; she said nothing at that time.
Q. Well, did she ever?
A. She did when it came to the codicil, when I mentioned that.
Q. Yes, she made a disposal of it in the codicil, told you how to dispose of it. But after she signed the waiver you told her ‘this gives you more under your husband’s will than you had before’ didn’t you?
A. I did.
Q. And she said yes.
A. I did.
Q. And she said yes?
A. She said ‘yes, I know it.”
In direct examination Mr. Bridgham says that after Mrs. Deering had signed the waiver he asked her if she wanted to add a codicil to her will and she said that she did. He says that he asked her how she wanted to dispose of the property, and she said she wanted to give it to Carroll, Harry and Emma, and to his inquiry as to whether she wanted to divide it equally among them she said yes. He states that he asked if she wanted to leave any of the property to the grand
In cross-examination Mr. Bridgham gives this significant testimony:
“Q. And there was nothing in either conversation where she advanced a single suggestion of her own, was there?
A. I don’t know as she suggested anything unless I asked her in regard to the business.
Q. Well, you have gone over the conversation fully, I don’t want to rehearse it all again, but did she make any suggestion of her own on her own initiative that you recollect?
A. Not that I remember.
Q. Now was there any idea of any kind concerning any subject that she made the initial suggestion concerning?
A. I don’t know of anything she mentioned before I asked her the question.”
Mr. Bridgham made inquiry, as to what provision had been made for Mrs. Deering in Mr. Deering’s will and he says she made no reply, but the daughter, Mrs. Rogers, or the son, Harry Deering, informed him that a bequest of $2,000 was contained in that will.
The codicil was written out in pencil, read to Mrs. Deering with the inquiry if it was as she wanted it, to which she replied “it was”. Mr.- Bridgham then copied the document on the typewriter. It was signed by Mrs. Deering and witnessed by Mr. Bridgham, the attendant Mrs. Lermond, and Miss Morse, all of whom had acted as witnesses to Mrs. Deering’s will on February 16th. As it was being attached to the will of February 16th which Mrs. Rogers had produced, Mrs. Deering asked what was being done, and upon being informed said, “Stick it on good and solid.”
In so far as the record discloses, Mr. Bridgham’s testimony accurately portrays the circumstances attending the execution of this codicil. Those present at the time who testify add nothing of mater
Upon inquiry she did remember the names of three of her grandchildren; she excluded her son Frank’s children from her bounty; she stated to whom she wanted her property to go; and she assented to the formal questions asked by the scriviner. Standing alone these acts and utterances are consistent with and indicative of testamentary capacity; but considered in the light of her previous and subsequent mental condition, and the active influences of her children which prompted and brought about the execution of the instrument, the probative value of these facts loses weight and fails to overcome the evidence of unsound mind lying elsewhere in the record. The incidents attending the execution of this codicil but depict a continuation of the mental deterioration which had already taken place in this testatrix.
Mrs. Deering lived until the following December. Her mental failure slowly but progressively increased. She did attend a directors’ meeting in April, 1922, as claimed by the proponents, but her son Carroll’s testimony shows clearly that in casting a prepared ballot at that meeting she exercised ho faculties of memory, reason or judgment, but only passively acquiesced in a pre-arranged program. The incident, we think, is without material significance; Sometime
In Marsh v. Tyrrell, 2 Flagg, 122, Sir John Nicholl said: “It is a great but not uncommon error to suppose that, because a person can understand a question put to him, and can give a rational answer .to such question, he is of perfect sound mind, and is capable of making a will for any purpose whatever; whereas the rule of law, and it is the rule of common sense, is far otherwise: the competency of the mind must be judged of by the nature of the act to be done, from a consideration of all the circumstances of the case.”
And in the Marquis of Winchester case, 6 R, 23 a, it is said: “By law it is not sufficient that the testator be of memory, when he makes his will, to answer familiar and.usual questions; but he ought to have a disposing memory, so that he is able to make a disposition of his lands with understanding and reason, and that is such a memory which the law calls sound and perfect memory.”
Turning to the testimony of the medical experts, we find that in medical nomenclature and classification the medical expert for the contestants states as his opinion that Mrs. Deering was at the times in question suffering from senile dementia. On the. other hand, the proponents offer expert opinion in denial of this conclusion which classifies the mental affliction of the testatrix as “involution melancholia”. Without including in this opinion a discussion of the highly technical distinctions adduced in this conflict of opinion, it must be said, upon the facts as we find them in the record the opinions of both experts are consistent only with the conclusion that marked mental deterioration had taken place in Mrs. Deering and negative a finding that she was of sound mind when she signed the two instruments offered for probate.
Evidence which would properly be considered in a determination of the question of undue influence appears with frequency in the pages of this record and in our discussion of the facts. We have not, however, considered it from that view point, but have weighed its materiality and probative value as bearing upon the voluntary, sound functioning of the testatrix’ mind. A mind, acting of its own volition, forming its own judgments, exercising its own reasoning powers, and drawing its own conclusions, may be far different from a mind prompted by suggestion, directed by influence, or dominated by persuasion. In the latter',- acquiescence may be mistaken for volition, repetition for memory, or assent for comprehension, and close scrutiny and searching care must be exercised that unsoundness does not remain undetected.
It is well said that the will of an aged person ought to be regarded with great tenderness when it appears not to have been procured by fraudulent acts. It is an equally sound and just rule that “a tender regard for the aged requires not only that their intelligent dispositions be upheld, but that their unintelligent ones, or wills not really their own, should be set aside.”
In Baker v. Butt, 2 Moore, P. C., 317, Parke, B, said: “In a court of probate, where the onus probandi most undoubtedly lies upon the party propounding the will, if the conscience of the Judge, upon a careful and accurate consideration of all the evidence, on both sides, is not judicially satisfied that the paper in question
In Crowningshield v. Crowningshield, 2 Gray (Mass.), 524, this rule is recognized, and it is there stated that a large proportion of wills are made when the mind is to some extent enfeebled by sickness or old age, and it is for this reason that the execution of the will and the proof of its execution are invested with solemnity; and it is held, “if, upon the whole evidence, it is left uncertain whether the testator was of sound mind or not, then it is, left uncertain whether there was under the statute a person capable of making the will, and the will cannot be proved.”
In Delafield v. Parish, 25 N. Y., 9, in the course of the opinion that Court adopts the rule above quoted from Baker v. Butt, and states that, “It is not the duty of the Court to strain after probate, nor in any case to grant it, where grave doubts remain unremoved and great difficulties oppose themselves to so doing.”
Without adopting these statements of the rule, this Court is in accord to the extent that it holds that the burden of proof is upon the party propounding the will to establish its validity by a fair preponderance of the weight of the evidence. Hall v. Perry, 87 Maine, 569; Robinson v. Adams, 62 Maine, 369.
In the instant case both the will of February 16, 1922, and the codicil of February 24, 1922, are offered for probate. A codicil, if duly executed and a valid testamentary act, operates as a republication of the will to which it refers, and the two are to be regarded as one instrument, speaking from the date of the codicil. Langdon v. Pickering, 19 Maine, 214. If the codicil fail of probate, however, the validity of the will is in issue. The burden, therefore, is upon these proponents to establish, in the first instance, that the codicil is a valid testamentary instrument, and failing so to do, to prove the validity of the will.
Applying the rule of onus probandi of this Court to the facts found in the record, our final determination is that the weight of the evidence does not establish that Lydia M. Deering possessed testamentary capacity when on February 24, 1922, she made a codicil to her will, nor when on the previous February 16th she made the will itself, and that neither instrument is valid.
