Rivard v. Rivard , 109 Mich. 98 ( 1896 )

Grant, J.

(after stating the facts).

1. The court did not err in refusing to instruct'the jury that there was no evidence of undue influence. It must be borne in mind that the first will was a fairly equitable division of the testator’s property among his children. This was in accordance with the natural affection which every father is supposed to have for his offspring. There is no evidence that any influence was exercised over Mr. Rivard in the execution of that will, or that there was then any alienation of affection between him and any of his children. If the case had been tried upon the theory that this will was valid, and must stand, although it were established that the codicils were invalid on account of undue influence or inconipetehcy, a different and important question, upon which we find no decision by this court, would have been presented. It was, however, presented to the court and jury upon the theory that the execution of a codicil is a re-execution of the entire will, and that, if there was such undue influence or incompetency as would invalidate the codicils, it would invalidate the entire will. All through the trial the original will and the codicils were referred to as one will. No request was made to instruct the jury upon this theory. It was raised in this court for the first time. Cases will be reviewed by the appellate courts upon the points and theories presented to the nisi prius courts. No better illustration of the justice of this rule can be found than the present case. Had the proponents desired to make this issue, it was their clear duty to have done so in the court below. We therefore refrain from discussing this question, or commenting upon the authorities cited.

Soon after the execution of the original will, Mr. Rivard commenced, by codicils, to diminish the shares of some and increase those of others, until finally, by these codicils and deeds of conveyance, he had practically disinherited all but Paul and Ephraim, and left to them almost the entirety of a property worth between $250,000 and $400,000. Some of those whom he thus disinherited were in more need of his bounty than Paul and Ephraim, because they were less able to take care of themselves, and were possessed of less property. Every person will naturally say that some good reason, must be found to account for such a disposal of a large property by a parent. Undue influence is not exercised openly. Like crime, it seeks secrecy in which to accomplish its poisonous work. It is largely a matter of inference from facts and circumstances surrounding the testator, his character and mental condition as shown by the evidence, and the opportunity possessed by the beneficiary for the exercise of such control. Marx v. McGlynn, 88 N. Y. 357; Hartman v. Strickler, 82 Va. 237; Porter v. Throop, 47 Mich. 324. It is unnecessary in this case to go to the extent of the holding in Marx v. McGlynn and Hartman v. Strickler, to the effect that the presumption of undue influence arises from the fact that the will is in disregard of a parent’s natural affection. Ephraim lived at home, with his father, for about five years before his death. Paul was a frequent visitor, and in consultation with him. There is evidence on the part of the contestants that Mr. Rivard made remarks against his son Charles after his interviews with Paul, and spoke about fixing matters differently. The learned circuit judge submitted this question to the jury, and, upon a motion for a new trial, refused to disturb the verdict. ■ We think he was correct, in that there was substantial evidence for the consideration of the jury.

2. Three witnesses, named Lodewyck, Prech, and Gore, testified that, in their opinion, Mr. Rivard was of unsound mind. The objection made to the inquiry propounded to Lodewyck and Prech was that it was “incompetent, and any inquiry as to his mental soundness or unsoundness must be confined to the time' the will was made, and the codicils.” Under this objection, counsel can now complain only of the second reason for their objection. The objection that it was ‘ ‘ incompetent ” is too indefinite. The term includes many reasons which counsel might have had in mind, but which were not apparent to the court.

In Ward v. Ward, 37 Mich. 258, the objection made was that the question was “incompetent, irrelevant, and immaterial.’.’ The court said:

“The ground of the objection was not stated at all, and, considering the circumstances, the point now urged was not so obvious as to probably occur to the judge’s mind on the tender of a general objection. The plaintiff in error is therefore not entitled to insist on the ground here taken.”

In Stevens v. Hope, 52 Mich. 65, it is said:

“Objections made in this form are not entitled to notice, unless it happens that the true point of objection is too palpable to call for anything more definite.” See, also, Brown v. Weightman, 62 Mich. 557; Seventh-Day Adventist Pub. Assn. v. Fisher, 95 Mich. 274.

Counsel cannot now raise the point that these witnesses had not shown sufficient facts and knowledge upon which to base an opinion.

To similar questions propounded to the witness Gore, the specific objection was made that he had not shown sufficient knowledge on his part to give an opinion. We are all of the opinion that this witness’ testimony was competent. He had described looks and actions and language inconsistent with a normal state of mind. We deem it unimportant to state his testimony.

3. Dr. Johnson, a medical expert upon insanity, was produced as a witness for the contestants. A very long hypothetical question was propounded to him. It assumed the existence of certain facts, as all such questions do, which contestants claim they had given testimony to prove. After the statement, the question was, “What have you to say as to the mental condition of this man, from the time of his wife’s death down to' his death?” The answer was, “The history seems to be that of an insane person, so far as I can judge from the question.” After this was answered, a second question was propounded, asking for the witness’ opinion whether Mr. Rivard was “capable of comprehending his moral obligations to others, and the proper objects of his bounty; the relations of his children and grandchildren to him; the situation and disposition of his property so as to bold these in mind; bis obligations to others; his consideration of the objects of his bounty; his property, and the extent of it,—so as to be able to make this will and these codicils of his own understanding.”

It is now urged that this question was incompetent because it includes certain facts which are indicative of sanity, rather than insanity, and that the jury were given to understand by the question that they were inserted as indicative of insanity. No such objection was made upon the trial, and it will not now be considered by us. The court, of its own motion, did modify some of the hypothetical statements, which were eliminated from the question. If counsel for proponents objected to other statements, .they should have called the attention of the court to them. The usual and better practice is to first introduce all the evidence to support the assumed facts stated in the hypothetical question. If, however, after the close of the testimony, it be found that such question contains assumed facts which there is no evidence to support, opposing counsel should move to have the answer stricken out, and excluded from the consideration of the jury. Wilkinson v. Spring Works, 73 Mich. 418. The competency of such questions is too well established to be now questioned. The duty of the trial judge is to limit the question to those facts which, if the jury find them to be true, are indicative of insanity. The hypothetical question in this case included the facts which the contestants had given evidence tending to sustain.

The second question was attacked in the court below, and is attacked here, upon the ground that it included moral obligations, and that it is of no consequence whether Mr. Rivard did or did not understand his moral •obligations to others. It is insisted that the question and answer related to the moral incompetency of the testator, -and not to his mental incompeteucy, which is the test. The word was evidently not used in regard to the moral character of the testator, or his moral obligations to his neighbors in the business transactions of life. It related to the obligations which a parent owes to his children. He was under no legal obligation to devise his property or leave it to his children who were of age. Certainly, as to those who were not of age, it would not be inappropriate to say that a father owes a moral obligation to his children to provide out of his property the means for their support and education. The term was used with reference to his obligations to his children. The jury could not well have understood it in any other light. There is precedent for its use in this connection. The lord chief justice, in Banks v. Goodfellow, L. R. 5 Q. B. 549, says:

“Here, then, we have the measure of the degree of mental power which should be insisted on. If the human instincts and affections, or the moral sense, become pervérted by mental disease; if insane suspicion or aversion take the place of natural affection; if reason and judgment are lost, and the mind becomes a prey to insane delusions calculated to interfere with and disturb its functions, and to lead to a testamentary disposition due only to their baneful influence,—in such a case it is obvious that the condition of the testamentary power fails, and that a will made under such circumstances ought not to stand.”

The rigid cross-examination elicited many things favorable to the proponents, and gave the jury all the essential information for their consideration in determining how much weight they would give to the opinion of the expert. There was no error in admitting this testimony.

4. The court did not err in refusing to instruct the jury that the expert testimony in this case was uncertain and unreliable, and that but little weight should be given to it. People v. Seaman, 107 Mich. 348.

5. Testimony was introduced by the contestants to show that Mr. Rivard became angry at some of his boys, and sent them away from home, telling them to leave, and “go and eat mad cow.” A Mr. Willemin was sworn for the proponents, and testified that he was a lawyer of 44 years’ practice, 20 years nfithis country, was brought up in Paris, a graduate of the French University, and acquainted with the idioms of the French language; that the French expression for the above is, “Mangé de la vache enragéj” that it was an expression much used in France, especially among the country people. “It means the same as, ‘You go and have a hard time.’ Suppose I should tell you the story of my life, and was in Australia part of the time, and fared very bad in that country; I would tell you, J’ai mangé de la vache enrage.’’ It means you have the hardest time one can ask, to endure hardships.”

On cross-examination the witness was asked, “Would you use it to your own children?” He answered under objection and exception. It was probably not proper cross-examination. It had no relevancy to the subject-matter of his testimony in chief. It would, however, be a reflection upon the intelligence of any jury to hold that they could be misled or prejudiced by the answer, which was: “No; I would not, myself.” Judgments should not be set aside for such trivial errors.

6. The principles governing the main question in this case have been so frequently and fully discussed in the decisions of this court that we deem it unnecessary to traverse the ground again. To do so would be supererogation. The former distinguished jurists of this court have ably expounded the rules and cited the principles governing all the questions raised. Some of the leading cases are Beaubien v. Cicotte, 12 Mich. 459; McGinnis v. Kempsey, 27 Mich. 363; Fraser v. Jennison, 42 Mich. 231; Kempsey v. McGinniss, 21 Mich. 123.

Apart from the question of undue influence, which has already been disposed of, the theory of the proponents is that the record contains no evidence of general incompetency, the result of senile dementia or general insanity, or of an insane delusion which affected the testamentary capacity of Mr. Rivard. Counsel urged, and requested the court to so charge, that Mr. Rivard was competent to attend to his business affairs, to make deeds, leases, and contracts, and was therefore competent to make a will, for the reason that it requires less capacity to make a will than to execute deeds and contracts. If the alleged incompetency depended upon senile dementia or general insanity, counsel’s contention, under the instruction of the court as to his competency in this regard, would be correct, and the court should have directed a verdict for the' proponents. This rule is settled, not only by the authorities in Michigan, but is recognized by courts generally. The difficulty with this contention is that it does not apply to this case, and the court eliminated it from the consideration of the jury by instructing them that Mr. Rivard was competent to do all these things, and that that competency continued to the end of his life. Counsel ignore the other well-settled rule,—that, while a man may be possessed of such capacity, he still may be unable to execute the will in question, on account of some delusion which has beclouded or taken away his judgment in regard to those who are the natural objects of his bounty. If a testator disinherits a daughter upon the belief that she is a bad woman or that she is not his own offspring, or a son upon the belief that he is a drunkard, or his grandchildren upon the belief that his son-in-law has threatened to kill him, and'it appears that there is no foundation in fact for any such beliefs, and they are shown to be mere delusions, a will disinheriting such children and grandchildren is. void, notwithstanding he was entirely sane upon every other subject, and fully competent to manage his business affairs. Justice Cooley makes the distinction clear in his able opinion in Fraser v. Jennison, supra, at page 231:

“ When the monomania is conceded, it is only necessary to inquire further whether the provisions of the will are or are not affected by it, and the will stands or falls by that test. [Citing a large number of authorities.] A man may believe himself to be the Supreme Ruler of the Universe, and nevertheless make a perfectly sensible disposition of his property; and the courts will sustain it, when it appears that his mania did not dictate its provisions.”

The converse of the proposition is true,—that where the monomania or delusion does dictate its provisions, and rer suits in the disinheritance of the subjects of the delusion, whom he would otherwise remember in his will, it cannot stand. We are not dealing with a testator who has no children, but only collateral heirs, to whom he owes no duty, legal or moral, but with a parent, whose disinheritance ought, in the common sense of mankind, to be based upon some good reason. For this reason the court rightly’ instructed the jury that they might consider the terms of the'will, in connection with the other evidence, in determining the question of the monomania or delusion. This is peculiarly true of the present case. These codicils present some peculiar features, which indicate a loss of memory and an unstable character. There were only 2 weeks between the second and third; 17 days between the eighth and ninth; 5 days between the tenth and eleventh; the third and fourth were made upon the same day; the eighth and ninth are identical in language. We find no satisfactory explanation of the execution of these two codicils within a few days of each other. By the sixth codicil he took away from his children all control of his funeral, burial, and selection of his grave and the erection of a monument, and committed it to his attorney, Mr. Ward. He disinherited his youngest daughter. If the testimony of the contestants is worthy of belief, he was under the insane delusion that she was an inmate of a house of ill. fame.

There is no shadow of a reason shown for this belief. If the jury found that this insane delusion was the cause of his disinheriting her, it alone would be sufficient to invalidate the will. Haines v. Hayden, 95 Mich. 332. The delusion in that case was that his wife was unfaithful to him, and that Alice, the daughter who was disinherited, was not his own child.

It was said in McGinnis v. Kempsey, “If a party makes a will contrary to natural justice, this, with other facts, may be considered.” The testator’s daughter Rose was about 12 years of age when her mother died. The evidence for contestants showed that she assumed the mother’s place in the household; did most of the work; she and her little sister milked the cows, and brought water from the lake, several hundred feet away; that she was faithful, obedient, and uncomplaining; that her lot was a hard one; that she did work which no father, possessed of the property which her father had, ought to ‘permit a daughter to do. Nothing occurred to estrange him from her until her marriage with Lodewyck. There is no evidence that he had any ill will towards Pauline, Lodewyck’s first wife. Either from an unfortunate marriage, or from other causes, the mind of his daughter Archange had become unbalanced, and after she left her husband her father took her to an asylum for care and treatment. The common sense of mankind condemns, as contrary to natural justice, a will which practically disinherits such children, and leaves the bulk of a large fortune to two who have done no more than they to deserve it, and are better able to meet the vicissitudes and struggles of life; and courts and juries have the right to take that fact into consideration, in determining the competency of the testator to make the will.

The delusions claimed to directly affect the will are his belief that his daughter Julia, whom he totally disinherited, was an inmate of a house of ill fame; that Charles was a drunkard; and that his son-in-law Lodewyck, whose children he left with a mere pittance, and that tied up with harsh restrictions, had designs upon his life. So far as disclosed upon this record, there was not the slightest foundation for his belief in the unchastity of his daughter or the designs of Lodewyck. There is evidence from which it may be reasonably inferred that he had some foundation for his belief in the habits of his son Charles. Charles, however; was a witness, and the jury had a better chance to judge as to the foundation for his father’s treatment, and whether his belief amounted to a ^delusion.

The evidence of the contestants tends to show a marked change in the habits and character of Mr. Rivard after the death of his wife; that he was afraid of her spirit; that he made his sons and the hired man sleep in the sitting room for some time, all having beds on the floor; that they slept with guns by their sides; that he said to his sons, “Your mother might come, and we had better sleep on the floor; ” that he told them to sleep on their backs, so as to listen, for fear she would come, and told them to be ready to grab their guns to shoot if she should come; that he hung sleighbells across the windows; that he attended to the calls of nature in the room at night without using any convenience; that he was accustomed to sit upon his haunches in the house and in the fields, and along the fences; that he exhibited cruelty towards his dumb animals, so extreme and revolting as to be inconsistent with a sane mind; that he sometimes wore summer clothes in winter, and winter clothes in summer; that he sometimes slept with a flannel shirt or drawers tied about his neck, for fear that one of his daughters would cut his throat; and that he furnished diseased meat to eat. Now, while some of these peculiarities would not, of themselves, show incompetency to make a will, still they were important side lights to aid the jury in determining the main issue in the case. Bitner v. Bitner, 65 Pa. St. 347. It is just to here remark that the testimony of the proponents was in flat contradiction to most of the testimony on the part of the contestants, and, if the jury found that the facts testified to by the proponents’ witnesses were true, Mr. Rivard was undoubtedly competent to execute the will, and the will should have been sustained. But these questions of fact were exclusively within the province of the jury, and they have settled them against the proponents. The charge was very clear in presenting the issue to them, and defining the rules by which they were to be governed. We find no error in the instruction given, or in the refusal to give the requests on behalf of the proponents which were refused.

The refusal to submit the special questions numbered 4 and 5 has not been argued by counsel in their briefs, and therefore will not be considered.

The judgment is affirmed.

The other Justices concurred.