Estate of Green ( 1891 )

Per Curiam:

This was an appeal from the refusal of the court below to award an issue devisavit vel non in the estate of Caroline R. Green, deceased. The allegations of contestants were (a) that the testatrix was of unsound mind and memory, and therefore incapable of making a will; and (5) undue influence. Of the latter there was not even a scintilla of evidence. It is true, she left her estate to a stranger to her blood, a neighbor and friend who had been kind to her. There was not a word, however, to show that she had been unduly influenced, or influenced at all, to make this disposition of her estate. Those of her own blood appear not to have taken any interest in her since her father’s death, and not to have visited her. Nor does the evidence show that she felt any interest in them. She had a right to do what she pleased with her property.

Nor was there sufficient evidence to submit to a jury upon the want of testamentary capacity. A vast volume of testimony was taken on the part of the contestants, a very small portion only of which would have been admissible upon the trial of an issue devisavit vel non. It consisted principally of the testimony of non-expert witnesses, many of whom visited or saw her infrequently; and, while many of them are quite emphatic in their opinion that the testatrix was not fit to make a will, their own testimony showed that they were unfit to express an opinion upon that subject. They either gave no facts upon which to base it, or the facts were too weak and inconclusive to warrant it.

The testimony most relied upon by the contestants was that of Mr. Melcher, a member of the bar, who was examined at great length. He says she was insane, and unfit to make a will; yet, it appears from his own statement that during the time of which he speaks he was acting as her counsel; that, as executrix, she settled her father’s estate, sold real estate, and performed other important business matters. Among these transactions was the leasing of a house to the witness referred to. The testimony of this witness is of very little weight,— not sufficient to go to a jury, or to justify a verdict against the will. On the other hand, the evidence on behalf of the proponents was clear and satisfactory. The most that can be said is that the testatrix was peculiar; had fits of despondency, produced, in whole or in part, by domestic afflictions. We have gone through the testimony with care, but a discussion of it is unnecessary. We think the issue was properly refused.

Decree affirmed, and the appeal dismissed at the costs of the appellants.