Guarantee Trust & Safe Dep. Co. v. Waller , 240 Pa. 575 ( 1913 )

Opinion by

Mr. Justice Moschzisker,

The Orphans’ Court of Philadelphia County granted an issue to the Common Pleas to determine the validity of the will of William H. H. Waller, deceased. The issue in terms was, “Whether or not the said William H. H. Waller at the time of the execution of the alleged will and testament and the codicils thereto was of sound, disposing mind, memory and understanding”; and the plea was, “At the time of the alleged execution of the said alleged will and codicils......the said William H. H. Waller was not of sound, disposing mind, memory and understanding.”

The testator died at the age of sixty-two and left to survive him a widow and a son; the latter is the contestant and was named as defendant in the court below. Under the will annuities are granted to the wife and some other near relatives; the son is given an annuity of $500 upon the death of his mother, and after the decease of all the annuitants the residue of the estate goes to him. But it is provided in the will that in the event of a deficiency of income the principal shall be used to pay the annuities, and since the estate is not a large one there is a possibility of its absorption before the provision for the benefit of the contestant can take effeet. In this connection, however, the testator states, “I feel that this provision is a liberal and just one for my son as he has already had a large amount of money for his maintenance and other purposes during his life.”

The issues were submitted to the jury in an elaborate charge in which the relevant rules of law were correctly stated; the verdict sustained the will, and the defendant has appealed. No useful purpose would be served by discussing in detail each of the sixteen assignments of error and we shall not attempt to do so. The first ten assignments go to rulings on the evidence, most of which involved the exercise of judicial discretion; we have examined each of them and find no reversible error. A reading of the entire record plainly shows the contestant took the position that his father was suffering from senile dementia at the time the will and codicils were written; and this condition is defined in medical jurisprudence as “profound general mental incapacity”: 2 Century Dictionary 1524 (also see Pyott v. Pyott, 90 Ill. App. 210, 221; Hall v. Unger, 11 Fed. Cases 261, 263, Case No. 5,949; People v. Lake, 2 Parker Crim. R. 215, 218; 13 Cyc. 778; 9 Am. & Eng. Ency. of Law (2d Edition) 216; Anderson’s Law Dictionary 338; Wharton & Stille’s Medical Jurisprudence, Secs. 975 to 993). WRile special delusions concerning the contestant were alleged, they were treated as growing out of the testator’s generally enfeebled mental state. The trial judge had to keep constantly in mind both of these phases, viz: the allegation of general testamentary incapacity and the claim that special delusions existed, and this goes far to explain the rulings already referred to; also to sustain those complained of in the assignments which we are about to discuss.

The affirmation of the plaintiff’s point to the effect that, “less capacity is needed to make a valid will than is sufficient in most casés to transact ordinary business,” was a correct statement of law (Thompson v. Kyner, 65 Pa. 368, 382) and could have done the defendant no harm. Another of the plaintiff’s points stated: “The opinion of an expert with no personal knowledge of the testator and which is given on a hypothetical question, based on disputed facts, is of very little weight.” In affirming this the trial judge said: “If it is a; hypothetical question based upon admitted facts, it would be one thing, but if it is a hypothetical question based on disputed facts, it would be different.” All of this merely meant that if an expert gave an opinion based upon concededly disputed facts, that, is, facts not assumed to be true, such opinion would be of little value. We think the answer must have been so comprehended by .the jury, and that no harm was done thereby to the appellant. It might have been better had the trial judge not affirmed the plaintiff’s tenth point to the effect that “medical- testimony on the subject of mental incapacity is the lowest that is ever allowed in a court of justice and when opposed to established facts is not entitled to much respect”; but, no doubt, the jury understood that the point had reference to expert medical testimony, and we are not convinced that any harm was done by its affirmance (Central Guarantee Trust & Safe Deposit Co. v. White, 206 Pa. 611, 615; Draper’s Est., 215 Pa. 314, 316). The sixteenth assignment is the only remaining one which requires any special notice; it complains of the refusal to affirm one of the defendant’s requests for charge concerning the effect of the testator’s alleged delusion as to Ms son. This , request ends with the instruction that,- “If the jury find that such delusion was operative at the time of the making of the will in question, then their verdict should be for the defendant,” and it contains a statement that the testator had practically disinherited his son. The trial judge refused the request, saying it was contradictory in terms, but he might well have declined it for other reasons. In the first place it would not have been proper for the court to tell the jury that the testator had practically disinherited the contestant; whether or not that was true was á question for them to decide and consider along with all the other facts in the case; next, the mere fact that the alleged delusion as to his son was in any sense, “operative at the time of the making of the will,” would not be sufficient to call for a verdict for the defendant ; to work this effect the delusion would not only have had to be “operative” but its operation would have had to control the will of the testator (Taylor v. Trich, 165 Pa. 586, 605; Buchanan v. Pierie, 205 Pa. 123, 126). The phraseology of the request did not take into account sufficiently this latter important essential; hence, the point as drawn could not properly have been affirmed. Furthermore, the law upon this precise subject was correctly and more clearly.stated in the general charge..

A period of two weeks was consumed in the trial of this case. Many witnesses were produced, and every detail throwing light upon the issues was investigated. ‘After a trial on the merits the question is not, was the case tried with strict correctness in every respect, but was substantial error committed in any material particular” (Satler Lumber Co. v. Exler, 239 Pa. 135); we are not convinced that such error was committed or that a wrong verdict was reached.

All the assignments are overruled, and the judgment is affirmed at the cost of the appellant.