Stevens v. Myers ( 1912 )

Mr. Justice Burnett

delivered the opinion of the court.

The general charge is that the decedent lacked testamentary capacity, and the specification is .that he labored under an insane delusion. At the hearing, no effort was made to establish a general insanity of the testator. The principal endeavor of both parties was to establish or overturn the averment of delusion already mentioned.

Sallie S. Myers, wife of the decedent, was born October 21, 1845, and died January 12, 1902. The testator himself, George T. Myers, was born October 30, 1836, and died July 12, 1907. The will in question was made May 31, 1902, and the codicil December 3, 1902. The testator lived five and one-half years after his wife, and almost that long after making his will, and, as disclosed by the testimony, was engaged in active business, managing large affairs almost to the very date of his death. The allegation of the complaint, to the effect that his estate was of the probable value of $300,000, is not contested by any evidence. It is abundantly established by the testimony that the testator was devotedly fond of his wife; that for a period of nearly 40 years they lived together happily as man and wife; and that he relied upon her, not only to manage her household, but also to advise him in almost every business transaction. He was addicted to the use of intoxicating liquors, and became, as stated by one witness, a “seasoned drinker.” It does not appear that he was ever so drunk but what he could walk and attend to business. They had but two children, the parties to this suit. He was very fond of the contestant, educated her at considerable expense, and, both before and after her marriage, sent her east for medical treatment, paying the expenses of her journey in every instance. When she married, he gave her $5,000 with which to furnish her residence. He afterwards bought a large dwelling house in Portland, and allowed her and her husband to occupy it until April 1, 1902, when he began to charge rent at the rate of $60 per month, as will be hereafter noticed. In February, 1896, the testator and his wife each made a will, bequeathing to the other all the property owned by the testator in those wills, with provisos that in case of the death of the other spouse before the death of the testator all the property should descend in equal shares to the two children. Except for the transposition of the testator and beneficiary, the two wills were identical in terms. Under her will, therefore, the property of Mrs. Myers passed to her husband at her death.

In 1882, the contestant, then a schoolgirl about 17 years of age, was threatened with some pulmonary trouble. For the benefit of her health, her father sent her east to visit relatives, who took her to consult the Dr. S. A. Robinson, mentioned in the pleadings, who was then practicing at some place on Staten Island, N. Y. She secured board near his residence, took his treatment for several months, and then returned to Portland, Oregon. She went again for treatment in 1886, and this time took up her abode in the doctor’s household, again remaining under his care for several months. This led to correspondence between the doctor and the contestant’s parents. They finally went east themselves, in 1887, became personally acquainted with Robinson, and visited at his house. In 1893 the contestant was visiting in New York in company with her parents, and again met Robinson. Later on he visited the contestant’s parents, and also visited at her home in Portland. Robinson had been divorced from his wife for many years, and before the marriage of the contestant he and his parents maintained a household near New York City; but after the death of his mother he removed to Tacoma Park, a suburb of the city of Washington, where he kept up a domestic establishment of his own. His son then lived in Baltimore, but, with his wife, was part of the time at the physician’s home in Tacoma Park, and besides that Robinson’s man and the same people that had been in the home when the contestant’s parents were visiting were in the Tacoma Park household. In 1899 the plaintiff again visited Robinson and family at Tacoma Park, and remained there until some time in July, 1900. During her stay there, she visited Washington and various other places with Robinson, all, of course, with the knowledge of her husband and her parents. Robinson removed to Portland, Oregon, in 1900, coming there in company with the contestant on her return. He immediately installed his household furniture and library in the home of the contestant, and continued to reside with her and her husband until some time after the death of her mother. He made, at his own expense, sundry changes in the house bought by the decedent for the use of contestant and her husband, and shared with them the expense of housekeeping there. The decedent took great pains to introduce Robinson to various leading men with whom he was acquainted, and spoke very highly of him and his attainments as a physician. The family, especially the contestant and her mother, showed him great attention.

In the early part of July, 1901, the decedent and his wife, together with the contestant and Robinson, went to Astoria on an excursion on the steamer Potter. Returning by train late at night, the contestant’s mother, in alighting from the train, fell, and in some way injured herself. Later in that month, the mother complained of a pain in her left side, took to her bed, and sent for Robinson to treat her. He diagnosed her ailment as malaria and sciatica, and treated her accordingly. She did not improve in health, but continued to decline. It is in testimony that the decedent implored his wife to call other physicians in consultation; but she steadfastly refused, and would have no medical counsel, except from Robinson. After treating her for some time, the latter advised that she be taken to a drier climate, or to some health resort. All this time the decedent was engaged with his son in business in Seattle, as salmon packers. As partners, they continued in this business, and in like ventures in Alaska, until the decedent’s death. When the question of change of scene or climate for the decedent’s wife arose, he suggested Green River Hot Springs in Washington; but Robinson objected to this, saying to Myers that the mountains would be better for a fever patient. It is in testimony, however, that he said to a witness, Mrs. Prentiss, that he wanted to take her as far away from Seattle as he could; for he did not want Mr. Myers to come so often, and the farther he got her away the better. This same witness testified that on his return from Ashland on one occasion the decedent complained to her that she herself was to blame for sending Mrs. Myers to Southern Oregon, and she then told him of the statement of Robinson, already mentioned.

It was finally determined to take Mrs. Myers to Ash-land, whither she went about the middle of September; Robinson and the contestant both acompanying her, and both remaining there until her return to Portland some time during the latter part of 1901 or early in 1902. Robinson was in constant attendance upon her during her stay at Ashland, living in the same house. At length an enlargement developed in her left side, about two inches below the umbilicus and about six inches to the left of the median line, which he at first diagnosed as hernia. Some time after this, the swelling was discovered to be an abscess, and on October 25, 1901, with the aid of other physicians, an operation was performed, by lancing the abscess. From the aperture thus made, pus spurted out, until about a quart was discharged. After this, the patient improved perceptibly, and began to talk of returning to Portland for the purpose of setting her house in order and preparing her wardrobe for a trip to California. Robinson advised strongly against her going back to the damper climate of Portland, as did the other physicians in attendance; but she persisted in her purpose and went to Portland, accompanied by Robinson and her daughter. About January 7, 1902, the patient was taken suddenly with a severe chill, and Robinson was called to attend her. He demanded that a consulting physician be called, and Dr. Rockey was summoned. Notwithstanding the treatment they gave her, she continued to decline, and died on January 12, 1902; the immediate cause of her demise, according to her death certificate, being acute nephritis with contributory peritonitis. Robinson was invited by Mr. Myers to attend the incineration of the body, and afterwards, at his request, gathered the ashes from the crematory. At first Myers, although distressed over the death of his wife, accepted the situation without complaint; but afterwards developed a state of great bitterness towards Robinson, and denounced him in unmeasured terms to almost any one who would talk with him on the subject, claiming that the physician was so ignorant of the true nature of the case that his wife died on account thereof. He complained, also, that Robinson had undue influence over his wife and daughter; that his daughter had sided with Robinson as against him in the estrangement which grew up between himself and the physician, and blamed her severely for that attitude. This is a general summary of the situation up to a few weeks after the death of Mrs. Myers.

1. The contention for the contestant is that the testator, her father, was suffering from insanity, manifested by a delusion that her mother had been murdered, and that she had in some way given aid and comfort to the murderer; but whether before or after the fact is not stated. In the language of Ames v. Ames, 40 Or. 495, 504 (67 Pac. 737, 741), “the rule is settled in this State that if a testator, at the time he executes his will, understands the business in which he is engaged, and has a knowledge of his property, and how he wishes to dispose of it among those entitled to his bounty, he possesses sufficient testamentary capacity.” Chrisman v. Chrisman, 16 Or. 127 (18 Pac. 6) ; Potter v. Jones, 20 Or. 239 (25 Pac. 769: 12 L. R. A. 161) ; Clark v. Ellis, 9 Or. 128; Cline’s Will, 24 Or. 175 (33 Pac. 542: 41 Am. St. Rep. 851). It is not every degree of insanity which will vitiate the will of a testator in question. Indeed, there is no standard like that of weight or dimension, by which we can measure the mental capacity of any one. Hence it is that, although a testator may be enfeebled, both physically and mentally, yet, if he retains sufficient mind, reason, and judgment to understand at the time that he executes his will that he is engaged in that kind of business, that he has a knowledge of his property and how he wishes to dispose of it, and remembers those who have natural claims upon his bounty, he is of testamentary capacity.

2. Delusions have been variously defined; but in the case of Potter v. Jones, 20 Or. 239 (25 Pac. 769: 12 L. R. A. 161), it is said:

“Delusions are conceptions that originate spontaneously in the mind without evidence of any kind to support them, and can be accounted for on no reasonable hypothesis. The mind that is so disordered imagines something to exist, or imputes the existence of an offense, which no rational person would believe to exist or to have been committed without some kind of evidence to support it.”

It may also be said'that a delusion is the spontaneous product of the subjective processes of a disordered intellect, inducing a belief without any support in extrinsic evidence. On the other hand, if the element of spontaniety is not present, and there be any extraneous reason, however slight, inducing the conviction in question, and to which a deliberative mind would give attention, there is no delusion. A mere error in judgment upon proven or admitted facts does not constitute a delusion, however much it may be at variance with the conclusion reached by unprejudiced minds from the same facts.

“In analyzing the legal conception of an insane delusion, it is necessary to keep in mind that the ultimate and essential thing to be established is that the testator had, at the time the will or instrument was executed, such an aberration as indicates an unsound or deranged condition of the mental faculties, as distinguished from the mere belief in the existence or nonexistence of certain supposed facts, based upon some sort of evidence. A belief which results from a process of reasoning from evidence, however imperfect the process may be or illogical the conclusion, is not an insane delusion. If, under the facts shown, the court is able to see how a rational person might have believed all that the testator believed, and still be in the possession of all his senses, an insane delusion is not established. Where a testator has some actual grounds for the belief which he has, though regarded by others as wholly insufficient, the mere misapprehension of the facts, or unreasonable or extravagant conclusions drawn therefrom, do not establish the existence of such a delusion as will invalidate his will.” Snell v. Weldon, 243 Ill. 496, 520 (90 N. E. 1061, 1070).

“There is no such thing as a delusion founded upon facts. It is a mental conception, in the absence of facts. If the idea entertained has for. a basis anything substantial, it is not a delusion. There may be a misjudgement of facts, or there may be an accentuated opinion, founded upon insufficient facts, but not a delusion rising to the dignity of mental aberration.” Fulton v. Freeland, 219 Mo. 494, 517 (118 S. W. 12, 18: 131 Am. St. Rep. 576).

3. The conduct of the trial assumed largely the aspect of hearing a.moot case of Myers v. Robinson and Stevens, as principal and accessory, wherein the plaintiff charged the defendants with malpractice and sat as judge in the decision of his own case. As to the question of delusion, pursuing the illustration further, it is not for us to consider whether Myers decided that case rightly or wrongly on the evidence before him, nor to say that the penalty of his wrath was too severe upon the defendants, nor yet to determine whether he presided there “with the cold neutrality of an impartial judge.” It is rather for us to confine our inquiry to the question of whether there was any evidence which a judge in his situation could consider, and whether he had mental jurisdiction to decide the case at all. In our investigation of that feature of the case, when we arrive at the point where we can say whether or not there were facts before him upon which any one could deliberate and reach a conclusion one way or the other, then, although his deduction from these facts, if any there were, may appear unreasonable or vengeful or wanting in natural affection, our quest is ended. We cannot go farther, because the property was his to be distributed as he chose, if he could choose, and neither of his children had any vested right to it at that time which we can enforce now.

We proceed, then, to a more detailed analysis of the testimony to ascertain if there is any extraneous evidence or impelling influence, arising otherwise than from the spontaneous action of a diseased mind, to induce the belief on the part of the testator, which is alleged to be a delusion. As a foreword, it is here set down that no situation is disclosed by the record, respecting either the contestant or her mother, inconsistent with the most womanly chastity. Of course, in the conditions of physician and patient, and friend and friend, revealed by the history of the case, there were many opportunities for meretricious relations, when viewed from the standpoint of the evil-minded; but there is no evidence that either of the ladies in question ever broke the faith they pledged at the hymeneal altar. Nor do we think the evidence establishes the charge that Myers imputed unchastity to either his wife or his daughter. Some witnesses testified on that subject; but they were so utterly broken down on cross-examination that, as we believe, the only basis for that branch of the alleged delusion is found, either in a gross misunderstanding of what he really did say, or in a prurient imagination. A careful study of the record impels us to the conclusion that Myers never made the charge or indulged the belief, however deluded, that his wife had been murdered in the sense that would entail capital punishment upon the one who slew her. Throughout this testimony, it constantly appears that, in his discussions of the matter, he attributed the death of his wife to the error or ignorance of the physician in his diagnosis of her case and to his improper treatment, or at least his neglect to give proper treatment to the patient. The utmost that can be said of his accusation against his wife and daughter was that Robinson had undue influence over them; that they were infatuated with him to such an extent as to cause them to side with the physician as against their husband and father.

On the hypothesis that this tends to sustain the charge as to the nature of the alleged delusion, the situation may be thus illustrated: Suppose that during his lifetime either the physician or the daughter, for the vindication of their good names, as against such charges, had instituted an action against Myers for libel, and that as a defense he had alleged the truth of the matter charged as defamatory. Is there anything in the record before us which would authorize him to take that issue to the jury? As to the diagnosis, all the witnesses who have spoken on that subject say that Mrs. Myers complained from the first of her illness of a pain in her left side. Dr. Samuel T. Songer of Ashland, who was called in consultation by Dr. Robinson about October 15, 1901, states that in his conference with the latter he was informed that the patient was suffering from malarial poisoning. Robinson had been treating her for this affection all this time, and continued it until about the 23d of October. Dr. Songer says that then Robinson came down and said patient had developed, as he thought, a hernia, and would like to have Songer examine her. On such examination, acting upon the theory that the swelling in the lower abdomen was a hernia, they tried to reduce it, but it would not yield to treatment of that kind. They then called in Dr. Pickel, who, on the 25th, operated on what all at that time agreed to be an abscess. There is some dispute in the testimony between Dr. Robinson, on the one hand, and Dr. Pickel, on the other, as to whether it was a psoas abscess or a pelvic abscess; but all agree that the disease was finally and properly determined to be an abscess of some kind, and that the original diagnosis of malarial poisoning and the second of hernia were both entirely erroneous. Dr. Songer testified, also, that hernia is not accompanied by malarial symptom or chill, yet, as Dr. Robinson told him, the patient had been suffering from fevers and chills. Dr. Songer says that it was the abscess that caused these chills and fever. Speaking of a pelvic abscess, Dr. Songer also says that a competent physician ought to be able to discover a pelvic abscess within a very few days. Dr. Songer was a witness for the contestant. Mrs. Stratton, another witness for the contestant, went to Ashland September 28, 1901, in the capacity of a nurse for Mrs. Myers. She says she stayed at the hotel three or four days, and then the party, including Mrs. Myers, moved to the residence of Mr. Pracht, and two or three days after that the witness discovered a very sore place on the left side of Mrs. Myers, a lump or swelling about one by four inches in dimension. She says she told Dr. Robinson about it, and he at that time pronounced it hernia. This was at least ten days before he finally determined it to be an abscess, of whatever kind. Dr. A. E. Rockey, another witness for contestant, was called in consultation with Dr. Robinson in the last sickness of Mrs. Myers. Dr. Rockey found her suffering from high fever, rapid pulse, rapid breathing, and a condition of general uneasiness that accompanies such symptoms. Adverting to the abscess of which he was informed, he said, in substance, that the occurrence of the chill and fever would suggest, among the possible causes for the same, an unhealed portion of the abscess and a retention of pus, finding its way into the system and causing the chill and fever. The sinus of the abscess had not entirely closed up, and in examination Dr. Rockey succeeded in passing a probe into it a distance of five or six inches. In speaking of this examination, Dr. Robinson says there may have been a drop or two of pus, because there was a little from time to time from the skin. He further says, “a drop of pus located where it cannot get vent will cause septicemia, as well as a quart.”

As to Dr. Robinson, here, then, is the situation, as Myers might legitimately view it: For more than three months the physician had been treating the wife of Myers for malaria and sciatica, and without success. There is ample evidence to show that Myers importuned his wife to have medical counsel called to consult with Robinson, but was refused. It is in evidence, also, that Robinson flatly declined to consult with other physicians. True it is that this is disputed; but that is not the direct issue here. After this long course of treatment, he finally discovers a swelling upon the lower part of the abdomen of the patient, and then pronounces it hernia. The sequel shows that his diagnosis was radically wrong, and that she suffered all this time from an abscess. The physicians agree that pus getting into the system will tend to poison, and that acute nephritis or peritonitis is a natural sequence, lethal in termination. Concerning the question of delusion, we have nothing to do with deciding whether or not the treatment of Dr. Robinson was the proper treatment, or such as a reasonably prudent physician would give under the circumstances. The only question for us to determine is whether or not Myers had ground to reach the conclusion, upon his course of reasoning, that his wife had been improperly treated with fatal results. If Robinson were the defendant against a charge of malpractice, in that he caused the death of Mrs. Myers by lack of sufficient medical skill, there would be enough in the testimony of the witnesses for the contestant to take such an issue to the jury as against his motion for nonsuit: Grainger v. Still, 187 Mo. 197 (85 S. W. 1114: 70 L. R. A. 49). Under such circumstances it would be quite as logical to impute insanity to the jurors who would assess damages against the physician in the supposed case upon that evidence as to say that Myers’ deduction from the same premises was an insane delusion.

4. As to the influence of Robinson over Mrs. Myers, her refusal to allow other physicians to be called in consultation, at the request of her husband, has been already mentioned. The witness, speaking of that, says that she gave as a reason for her action that it would offend Dr. Robinson. In her letter of November 14, 1899, appearing in the record, Mrs. Myers addresses Robinson as “My Dear Doctor Robinson,” and says, among other things:

“We were in hopes Oregon might be favored with your residence but know too many cabbage heads grow here and you want to be where there is culture and intellectuality. Washington may well be proud of such an acquisition to her population, and we are thankful to number you among our intimate friends. We are all well, each joining in love and good wishes for your future happiness and enjoyment.”

The contestant herself testifies that when Mrs. Myers, her mother, was sick she sent for Dr. Robinson, and did not want another physician; that Dr. Robinson appeared unwilling to take the case, being anxious to go east, and her mother said if he would just take her through that sickness she would not ask him to treat her again. She further says:

“I think Dr. Robinson had called in Dr. Songer, whom my father had wanted to consult with Dr. Robinson, but my mother was always opposed to it; but finally Dr. Robinson said he must have counsel, and I suggested Dr. Songer, as long as my father had wished him, and he came and made this examination.”

Again the contestant speaks of going with her mother to meet Dr. Robinson at Salem, to go on to San Francisco and spend a little time there; that Robinson was on his way east, and they were all in San Francisco together; and that the party, consisting of herself, her motherj an aunt, and Dr. Robinson, had taken several trips all around California. Of course, this was all with the knowledge of the contestant’s husband, and with the acquiescence of her father. It is written large throughout the testimony that, in the controversy and estrangement which arose between her father and Dr. Robinson, the contestant espoused the cause of the latter as against her father. As an evidence of what we may at least term her admiration for Dr. Robinson, we here quote some of her testimony respecting his practice:

“It was very large. He had a surgeon employed by him in the home. The whole house really was given up to his business and practice, and there were a great many people came there from different places. There was one friend that was living in Dr. Robinson’s home, besides this Miss Close, that I was very fond of — she was from Chicago — a Miss Vada Weller, whose father and mother had sent her on as I had been sent on, and there were several young ladies from Baltimore; and Major Walker’s family was at this same place where I had been sent. I used to have to go for treatment and wait my turn at the doctor’s home there, and sometimes it was two hours and two hours and a half before I could get my turn; there were so many people waiting.”

Speaking of the class of patients he had, she says:

“Well, they were prominent people, like Erastus Brooks, Mr. C. W. Hunt, J. B. King, all very prominent and wealthy people of Staten Island; and often Dr. Robinson used to take Miss Weller and myself on his afternoon calls in his carriage, and we were driven to those elegant homes. That is all I know, and the beautiful grounds surrounding them; and while Dr. Robinson was in those homes we would be driven by the coachman around until he thought time to return for Dr. Robinson.”

She also says that “Dr. Robinson was a personal friend of the famous Dr. Osier, and he was with him and Dr. Fetterhall.” She allowed Robinson to remain as an inmate of her household long after she well knew that her father heartily despised him. We do not criticise her right to do these things or the purity of her intentions, and they are recited only for the purpose of showing that there was some ground for Myers to reason upon and reach the conclusion which he did, whether it was a just conclusion or otherwise.

On the moot issue of libel, with justification pleaded as a defense, on behalf of Myers, which we have used as an illustration, we have no hesitancy in saying that out of the mouths of the witnesses for the contestant enough appears to take that issue to the jury on behalf of Myers. The deduction is plain that there was a plausible basis upon which Myers could reason, and evidently did reason, and arrive at the conclusion that his wife was the victim of malpractice on the part of Dr. Robinson; further, that in opposition to his request and oft-expressed wishes, his wife refused to allow other physicians to be called in consultation, and that his daughter sided with her mother in this contention; and, lastly, that when the estrangement between Myers and Robinson arose as a result of the former’s reflections on the facts already narrated, she espoused the cause of Robinson and defended him against her father’s displeasure. We conclude that the specification of delusion is not only not proven, but is affirmatively refuted, because Myers had a reason for his judgment on that matter.

It is not pretended that Myers was insane on any other subject, except that connected with the alleged delusion. The testimony shows Myers to have been a pronounced man, ardent in his friendship and equally warm in his resentment. It is said to be only a step from the sublime to the ridiculous, and so it is but a pace from love to jealousy, and from intimate friendship to avowed hostility. It affirmatively appears that Myers had at least tolerated a very close relation between Robinson and the family of the former. In the treatment of his wife, of whom he was devotedly fond, Myers evidently expected much of Robinson, and when the climax was reached, and he found, as he believed, that the physician at least was ignorant and unskillful in his treatment, the natural result followed in an expressed hatred and dislike of Robinson. It is true that many witnesses, describing Myers’ conduct when discussing his wife’s death, have said that he would run his fingers through his hair, and his eyes were staring; that he would walk the floor and bitterly denounce Robinson in profane terms, and finally would become almost incoherent in his speech, and finally burst into tears. On this basis, the witnesses variously pronounce him “off,” “a maniac,” “insane on that subject,” and the like; but such testimony is not, in our opinion, sufficient to outweigh the direct testimony and undisputed evidence that, until almost to the day of his death, he successfully managed a very large business, requiring the clearest mind. The witnesses alluded to were not cognizant of the situation as it appeared to Myers; they could not put themselves in his place, and could only determine from their standpoint that his judgment of Robinson was unreasonable or unjust. His conduct on those occasions was quite consistent with the actions of an unreasonably angry man who has been deeply offended in a matter very near his heart. It is proper to further analyze the testimony with reference to the matter of general testamentary capacity, and to determine whether the will was such as a man in Myers’ situation, in his right mind, would naturally execute.'

Recalling that Dr. Robinson continued in the family of the contestant and her husband after the death of Mrs. Myers, and that hitherto the testator had not charged his daughter and her husband any rent for the house in which they lived, owned by him, we find that Myers had conceived and did not in the least conceal his dislike for Robinson after the death of Mrs. Myers. Evidently incensed at his daughter for retaining him in her household, and desiring to express his disapproval and possibly get rid of Robinson, Myers directed his agent to notify the contestant’s husband that rent would be charged on the residence at the rate of $60 per month from and after April 1, 1902. At this juncture, the contestant’s husband sent the testator the following letter:

“The First National Bank, Portland, Ore., March 31, 1902.

“My Dear Mr. Myers :

“Herewith please find check for $60, covering rent of house at 135 22d Street North, for month of April, 1902. This is not a large sum to you, but it is to me, and will make a substantial cut in my income. The worst feature of it lies in the misunderstanding which so many of our friends have regarding the same, for most of them seem to be of the opinion that it has been given to Frances by her father and mother for a home. In fact, only a few days ago, a gentleman asked me how much taxes I had to pay on it, and was very much surprised when I replied that we were only tenants. However, that is nothing new for me, as my greatest handicap both socially and in business, has been on account of my having been connected with a well-to-do family and being obliged to maintain a position in society, which my salary has not warranted. Still, I have so far been able to preserve my credit and my self-respect, and for my own personal discomfort I do not care. With Frances it is different, for she has the right to expect better treatment at her father’s hands, and in her weak, nervous condition, the worry and humiliation she has had, is nothing short of criminal. She is neither a child, rogue or fool, and the course she has followed since her mother’s death is the only honorable one she could pursue. You are doubtless well aware of the strong attachment which always existed between her mother and herself. When but a child she always saved up the little pin money, which she received, in order to be able to buy her mother a Christmas or birthday present, and was always anxious to share every little pleasure with her. During her mother’s illness, she was with her continually, and had a most excellent opportunity of learning and knowing what her wishes and opinions were. Dr. Robinson has his faults, as do we all, you and myself included, but it is not my object to discuss that now. These facts: that your wife insisted on his remaining in the case; that she urged upon you, at one time, that you owed him an apology, which you gave with apparent sincerity; and finally, the plans which she made regarding her future after her return from Ashland, all go to show plainly what her opinion was in regard to him. These are all indisputable facts, and Frances remains true to her mother’s wishes, besides which she owes Dr. Robinson a debt of gratitude for his care and treatment of herself and her mother, which she has too much honor and sincerity to repudiate. How much better for everyone it would have been, if you had only accepted the judgment of the doctors in the case, all of whom say that everything was done that could have been done. You would have saved even yourself much mental excitement and worry. It is easy to say that Dr. Robinson murdered your wife and to call him vile names, but it requires little thought and is no argument. When such serious statements are made, they should be backed up with the knowledge that they could be proven true in court, for nothing but the truth is permitted there. The remarks which you have made to the eifect that Dr. Robinson had too much influence with your wife and daughter are being sadly misconstrued, for everyone who knew Mrs. Myers knew her strong character, and that she was one to lead and not to be led. So such statements simply discredit her. For example, only a short time ago, a very influential man, whom you consider one of your best friends, told me that you had said Dr. Robinson had had undue influence with your wife, and he wanted to know if by that you meant, that they had been criminally intimate. I was shocked at the thought, but it shows how such things are most apt to be understood. As for Frances, since you have connected her name in a disrespectful way with the Doctor she will hardly go outside and is very much broken down. Her nerves are in a badly demoralized condition, and there is nothing that can help them while things are being agitated as they are. She certainly has her mother’s wishes behind her, and Mrs. Myers was a woman whose guidance it was well to follow. Your antipathy to the Doctor cannot harm him seriously, but instead its effect falls upon your daughter and your wife’s good name. I am writing this without the knowledge of either Frances or the Doctor’ and hope you will be able to see the right and justice of it, for I have said nothing but facts, pure and simple.

“Yours very truly,

B. F. Stevens.”

Upon the tense situation, as it existed at that time, this letter came as a marplot, and, to say the least, it was unfortunate. There is much in it to justly incense Myers A man of his spirit could not bear with composure the statement that Stevens’ connection with his family was a great handicap to the latter. In respect to the difference of opinion between Myers and his wife, respecting Dr. Robinson, the letter sums up the situation thus:

“These are all indisputable facts, and Frances remains true to her mother’s wishes, besides which she owes Dr. Robinson a debt of gratitude for his care and treatment of herself and her mother, which she has- too much honor and sincerity to repudiate.”

The statement in the letter that “the remarks which you have made to the effect that Dr. Robinson had too much influence with your daughter are being sadly misconstrued” probably state the exact truth about what Myers said in that connection. It would naturally make any man very angry to have his language, thus expressed, so construed as to mean that his wife and daughter had been criminally intimate with Robinson, yet this is what the letter plainly indicates. Soon- after receiving this letter, Myers confronted Stevens and demanded the name of the latter’s informant, and on his refusal to give the name he denounced his son-in-law in unmeasured terms. The testator, at the time and afterwards, expressed his determination that none of his property should go to Stevens. It appears that, although she and her husband had been married since 1892, the contestant had never borne any children, and that her health was delicate. With the possibility, as it seemed to him, that her husband would survive his daughter, the testator evidently took testamentary steps in accordance with his hostility to his son-in-law growing out of the unfortunate letter. It is in evidence that about that time, or soon afterwards, he made a will, bequeathing only a nominal sum to his daughter, and leaving the remainder of his estate to his son. Subsequently he executed the will in question on May 31, 1902. Whitney L. Boise, who drew up the document under the direction of the testator, says, in substance, that the latter was perfectly cool and collected and not in the least excited. The manifestations of temper and incoherent anger described by other witnesses, and upon which they base their opinion that he was insane at other times, were entirely wanting. Myers afterwards submitted the will to Cyrus A. Dolph, and asked his advice as to its regularity and validity, all the while remaining calm and collected. Many witnesses for the proponent, equipped for their judgment by many years of acquaintance with the testator, and who saw him and talked with him about this time, concur in pronouncing him perfectly sound of mind. None of the witnesses for the contestant pretended to say more than this — that Myers was insane. Not one of them gives any opinion as to the degree of his alleged insanity. No witness deposes that he had not sufficient intelligence at the time to know that he was executing his will, to know the property of which he intended to dispose, and to recollect and distinguish among the objects of his bounty. He evidently took a sober second thought in respect to his daughter, and relented in a degree from his first determination to cut her off with a mere nominal sum. The evident attitude of his mind towards her is delineated in her account of her last interview with her father thus:

“He took on and raved and glared at me, and said that that scoundrel of a husband of mine had written him this letter; that he had not written it; that Dr. Robinson had written it. And he called them both scoundrels, and made it noisy there, and caused so much attention, you know, the loud way he spoke to me, and said he loved me still, and wished I could get away from all of this.”

These last words he ever spoke to her testify of his love for the daughter; but she made no change in the situation which so displeased her father. Yet, in the face of all that, he, by his will in question, made her the munificent bequest of $20,000 without condition, even as against her husband, who had deeply offended him, except that it should not be paid to her until she should arrive at the age of 45 years. He explained that this was the probable value of one-half of the property which came to him under the will' of his wife, the contestant’s mother ; but this was only an evidence that he reasoned on the subject, and was not acting on the impulse of insane-fury or delusion. That property was his own as much as any other, and we cannot ignore his disposal of it, if he bad sufficient mental vigor to construct a will, within the meaning of the long-established rule in this State. He had been an indulgent father to her, had given her $5,000 in one sum to furnish her home when she was married, had paid the expense of her travels, both before and.after her marriage, and in many ways had manifested for -her a tender affection. From this standpoint, he evidently expected from her something of a different attitude than the one she assumed in the great crisis of his bereavement. It is evident, however, that he reasoned with testamentary capacity in the construction of his will now in dispute. He lived more than five years afterwards in active business, without any question being raised as to his sanity. He may have been actuated by a desire to punish the contestant, albeit unjustly; but he had the right to punish her in that manner, provided he had testamentary capacity in the degree already defined and supported by a great array of authority.

We are convinced that the preponderance of the testimony establishes that at the time of making his will on May 31, 1902, he had ability in ample degree for that purpose, and that the instrument is one which, under all the circumstances, a man of his temperament would naturally make. Besides the precedents already cited, the following from other states are instructive: Bohler v. Hicks, 120 Ga. 800 (48 S. E. 306) ; Schmidt v. Schmidt, 201 Ill. 191 (66 N. E. 371) ; Bauchens v. Davis, 229 Ill. 557 (82 N. E. 365) ; Drum v. Capps, 240 Ill. 524 (88 N. E. 1020) ; Conner v. Skaggs, 213 Mo. 334 (111 S. W. 1132) ; In re Will of James D. White, 121 N. Y. 406 (24 N. E. 935) ; In re Brush’s Will, 35 Misc. Rep. 689 (72 N. Y. Supp. 421) ; Buchanan v. Betsey, 65 App. Div. 58 (72 N. Y. Supp. 601) ; McGovran’s Estate, 185 Pa. 203 (39 Atl. 816) ; Hemmingway’s Estate, 195 Pa. 291 (45 Atl. 726: 78 Am. St. Rep. 815) ; Kendrick’s Estate, 130 Cal. 360 (62 Pac. 605) ; In re Riordan’s Estate, 13 Cal. App. 313 (109 Pac. 629) ; Hartung v. Holmes, 159 Cal. 161 (113 Pac. 130) ; Stull v. Stull, 1 Neb. (Unof.) 380, 389 (96 N. W. 196) ; Taylor v. McClintock, 87 Ark 243 (112 S. W. 405).

5. Again, the allegation of the contestant’s complaint is, in substance, that at and for some time prior to the execution of the will the testator was not of sound and disposing mind or memory, and that during all of that time he labored under the delusion which she describes. No mention is made of the codicil in any manner; yet we find from the record that six months and more after the execution of the will the testator makes and publishes the supplementary testament, which does not disturb' the bequest to his daughter, but only gives directions about how the portion bequeathed to his son shall be distributed, should the latter pass away before the death of the testator. It is not alleged that Myers was in any manner insane or subject to any delusion at the execution of the codicil. The publication of the latter instrument amounts to an affirmance and republication of the testament to which it is a supplement.

“Although the will, when executed, might be bad, or the testator might be non compos mentis or under duress or undue influence at its execution, yet, if he was sane and free from duress or undue influence when he executed the codicil, that would be a republication and confirmation of the will, and would free it from the objection to which it was liable at its execution.”

Farr v. O’Neall, 1 Rich. (S, C.) 80, 89. See, also, Shaio v. Camp, 163 Ill. 144 (45 N. E. 211: 36 L. R. A. 112) ; Jones v. Shewmake, 35 Ga. 151; Murray v. Oliver, 41 N. C. 55; Haven v. Foster, 14 Pick. (Mass.) 534; Brimmer v. Sohier, 1 Cush. (Mass.) 118; Hubbard v. Hubbard, 198 Ill. 621 (64 N. E. 1038); Van Cortlandt v. Kip, 1 Hill (N. Y.) 590; Illensworth v. Illensworth, 110 App. Div. 399 (97 N. Y. Supp. 44) ; Payne v. Payne, 18 Cal. 291.

The conclusion is that the decree of the county and circuit courts, setting aside the will and codicil in question, are both reversed, and the cause remanded for further proceedings in the settlement and distribution of the estate of the testator in accordance with the directions of the original and supplementary testament hitherto under consideration. Reversed.