Caldwell v. Anderson ( 1883 )

Mr. Justice Gordon

delivered the opinion of the court, January 7th 1884.

The counsel for the plaintiffs in error make a mistake when they attempt to adapt the facts of the case in hand to the legal principles announced in Boyd v. Boyd, 16 P. F. S. 283, and Cuthbertson’s Appeal, 1 Out. 163. The first, second, third and fourth points of the-contestants, are little more than a re-statement of the doctrine of these cases, and counsel thinking .they have presented a similar array of facts find fault with the court below for not affirming distinctly and without qualification those points.

The law as contained in those cases may be summarized as follows : Where the testator is shown to be of weak mind, without regard to the cause or causes from which that weakness has arisen, though it be not sufficient in itself to wholly destroy testamentary capacity, and the person by whom, or under whose advice, the will has been written, being a stranger to the testator’s blood, receives a legacy or bequest, large as compared to the testator’s estate, the burden of proof shifts from the contestants to the proponent of the will. In such case not only must testamentary capacity be affirmatively proved, but it must also be shown that the testator acted with a full knowledge of the value of his estate.

According to this rule, it lay with the contestants, in the first place, to prove that in the testatrix there was some mental weakness, in consequence of which she was in a condition to be imposed upon. For that, a person of thoroughly sound mind, whether old or young, may dispose of his property as he pleases, and call upon whom he will to act as his scribe and counsellor, cannot be doubted. But an examination of the evidence, produced on part of the contestants, does not satisfy us that they have made out such a case as is necessary to shift the burthen of proof. It is true that some of their witnesses insist that Mrs. Furry was not of sound mind, but when we come to analyze their testimony we find that they have substituted the trouble and anxiety resulting from the necessity she was under of selling her personal property and breaking up housekeeping for imbecility of mind. For instance, Miss Annie Johnston says she had not been in her right mind for a week before the sale. But clearly, this was a mistake, for from all the evidence, a week before the sale, she was not only mentally but bodily sound ; it is therefore, obvious, that here mental anxiety is put for mental unsoundness. So, also, Miss Mary Anderson testifies that she was not of sound mind, not .only on, but before, the day of sale, “ she was troubled.” Again, “ this lady was not crazy, but she was not in her sound mind all the time. She was flighty; I did not say she was insane. She was a woman of sound mind, of course, before this trouble was;” and so on.

On the other hand, Miss Kate Wyland, who was with Mrs. Furry on the Thursday and Friday preceding the Sunday on which the will was executed, observed nothing of either flightiness or mental weakness, 'but says she seemed to be just as she always was, only greatly troubled. Then, when we come to the testimony of John Beatty, one of the contestants, whatever suspicion the preceding evidence might have raised of the testatrix’s intellectual debility, is at once swept away. This man was her nephew, one of the executors of her husband’s will, and the person that attended to what little business she had to do outside of her house and farm. He gives us a detailed statement of the conversation he had with her about the proposed sale; the danger of her living alone exposed to tramps and thieves; what time would be best suited for the vendue, and the particulars of the whole arrangement, including her intended place of boarding. And in all this business ho tells us he acted strictly in accordance with her directions, and did not so much as volunteer his advice. As be says, “ the sale was conducted just as she wanted it, as near as William Nichols, John Anderson and I could do it.” In this, as in every other business which this witness speaks of transacting with and for her, it is obvious he was under the impression that he was dealing with a woman not only of sound mind, but also with one who was disposed to have her own way. Moreover, this man was at her house, not only on Wednesday, Thursday and Friday of the week of the sale, but also on the Monday and Wednesday of the succeeding week, the week of her death, and yet he nowhere intimates that his aunt exhibited any signs of mental aberration. With a case no better than this on the part of the contestants, there was really nothing for the proponents to rebut. They had, in the first place, proved the perfect mental capacity of the old lady to understand and conduct her own affairs; her complete and accurate knowledge of the amount and value of her estate, personal and real. Of the former she had been fully advised by Mr. Beatty, and again of both by Anderson and Nichols immediately before the execution of her will, and the making of that will was her own suggestion, having, as she said, been advised so to do by her husband before his death. Anderson and Nichols volunteered their advice in nothing, except that the former asked her, during the writing of the will, if she could not give Mrs. Caldwell more than the legacy of $4:00, proposed by the testatrix, and to this her prompt answer was a negative, saying she had enough. In fact, both Anderson and Nichols appear to have been but instruments of her own choosing, used for the purpose of taking her instructions from her lips, and putting them upon paper.

The rebutting evidence but confirms that which was given in chief. The testimony of the attendant physician, a nephew of the testatrix, and of the nurse, Mrs. Baldridge, a niece, are especially clear and important. We need repeat it only so far as it reveals the facts, that her disease commenced in a cold, and finally ran into capillary bronchitis, and that her mind was always clear and collected, except some flightiness during the night, or when she was in a state between sleeping and waking.

It being thus evident that the very first principle, on which rest the cases cited, being here wholly wanting, we might well stop and avoid further comment. But we do not think- it proper to pass over in entire silence the fact, that William Anderson, who acted as sci'ibe in drawing the will, was not a stranger to the blood of Mrs. Furry, but her own brother ; one who, had she died intestate, would have been entitled to a large portion of her estate, and one whom it was to be'presumed she would remember in her will. There is, then, no presumption against Anderson as there would be against a stranger, and the question is, after all, one of mere preference. Whatever of influence there was in his favor arose from his relationship to the deceased, hence of a character lawful and right. Moreover, he did not, by any means, receive the largest share of his sister’s estate, for the bequests to her sister, Mrs. Nichols, and her children, were considerably in advance of the bequest to him. So, as we have said, the matter is one of mere preference by the testatrix among her relatives, and that she should have preferred her brother and sister to other relatives does not seem to us so out of the ordinary course of things as of itself to raise a suspicion as to the rectitude of the transaction. The law is not so utterly illogical and unnatural as to regard with disfavor the presence of a brother with his aged and childless sister at the time of the making of her will, though he may act as her scribe, and though he may become, what might reasonably be expected, one of her legatees. On the whole, we are inclined to the opinion that the court below might, without answering any of the points, have instructed the jury to find for the plaintiffs.

The judgment is affirmed.