Wilson's Appeal

Mr. Justice Green

delivered the opinion of the court, March 13th 1882.

We concur entirely with the learned judge of the court below in the statement of the reasons which induced the court to grant the issue prayed for in this case, to try the question of undue influence. The opinion expresses very clearly and forcibly the considerations which bring the case within the ruling of Boyd v. Boyd, 16 P. F. S. 283, and Cuthbertson’s Appeal, 1 Out. 163. William Wood was one of the chief beneficiaries named in the will, and he was the main instrument in procuring the preparation and execution of the will in question. lie was, moreover, a trusted and confidential friend and adviser of the testator, who consulted him in relation to his business affairs. The testator had, in 1873, when in undoubted health of body and mind, executed a will in which neither Mr. Wood nor his son and daughter, the other residuary devisees, wez-e znentioued. The chazzges wi’ought izz that will by the one izz controvei'sy, executed seven years later, are of the znost radical character. In view of these facts, azzd of the great age and physical infirmity of the testator, we can not doubt the propriety of an issue to deternzizze whether uzidue influezzee was exerted to produce the will in controversy. The principles stated by the present Chief Justice, in Cuthbertson’s Appeal, supra, becozne entirely applicable: “ Every man who draws a will in his own favor under such circumstances, should know that he will be required to prove affirmatively all the circumstances connected with the drawing of the will, and that it must appear that the alleged testator was laboring under no mistaken apprehension as to the value of his property and the amount lié was giving to his confidential adviser. He must make it clearly appear that the gift to him was the free, intelligent act of the testator.”

We find ourselves unable, however, to agree with the court below in restricting the issue in this .case, to the question of undue influence alone. There was considerable testimony given in support of the allegation of mental incapacity of the testator at the time of the execution of the will in question. He was nearly eighty-nine years of age. He had been prostrated a few days before by a most severe attack of acute pneumonia; he was in a condition of stupor, which, as the attending physician said, “ was becoming more and more serious.” The latter also testified, “ The delirium was the mildest form of the brain disorder, and the stupor indicated that the brain was becoming more seriously involved.” He was taken ill on October 22d 1880, with acute pneumonia involving both lungs and which reached its fullest intensity in about three days, remaining of that character for about a week. The will was executed on the 28th day of October, and the testator died on N ovember 5th following. The sickness continued about two weeks, and in the midst of it, the testamentary paper in controversy was prepared and signed. The attending physician, an entirely disinterested person, who had every opportunity to observe and consider the testator’s condition, testified that in his opinion, he was mentally incompetent to make a will. The will in question being read to the witness, he was asked :

Q. From your knowledge of Mr. Rea’s condition, do you believe it possible for him to have understood and comprehended such a paper on the eighth day of his sickness? A. I don’t think so.

Q. If the will which has been read to you had been properly and carefully explained to him, is it possible that he oould have understood it? A. No.

There was much other testimony, from a number of witnesses, who testified to their belief in the mental incapacity of the testator, giving their reasons therefor. We do not propose to repeat or discuss it, as it may come before us hereafter for Our consideration. Rut we are clearly of opinion that, taken in connection with the testimony of the attending physician, it is more than a scintilla of evidence, and is enough to carry the case to a jury. In a case in which the subject of the inquiry is a person of such great age and infirmity, suffering from so severe an attack of disease, affecting bis brain and all bis vital powers, and where an investigation of a charge of undue influence is admittedly essential, it is of very doubtful propriety to limit and restrain that investigation to that one matter..

In such circumstances undue influence and mental incapacity are very closely interwoven. It is difficult to separate them by a dividing line in conducting a judicial inquiry. A person of extreme feebleness of intellect is much more easily influenced by undue means, than is one of more vigorous condition. If the issue of mental unsoundness is excluded, it may seriously impair the thoroughness of the investigation as to undue influence, by limiting the scope of the admissible testimony. We said in Cuthbertson’s Appeal, “Where the alleged testator is shown by evidencie to be weak in mind, whether arising from age, bodily infirmity, great sorrow, or other cause tending to produce such weakness, though not sufficient to create testamentary incapacity, and the person whose advice has been sought and taken, receives a large benefit under the instrument propounded as a will, it must be shown affirmatively that the alleged testator had full understanding of the nature of the disposition contained in it.” In the present case there was a former will with entirely different provisions, and that circumstance might be a most material element in determining the question of mental nnsoundiress; yet in an issue of undue influence which is necessarily restrained to the very paper in controversy, the fact of the former will might be excluded as irrelevant. We think in all such cases as this, where the charge of undue influence admittedly requires judicial investigation and the allegation of mental unsoundness is supported by the testimony of the attending physician and other witnesses, it is not wise to restrain the inquiry within the narrow limits of the charge of undue influence alone. Abstaining from further discussion of the facts of this case, we repeat that we think there was enough evidence to take the case to a jury on the question of mental incapacity, and it follows that the decree of the court below must in that respect be reversed.

Now March 13th 1882, it is ordered that so much of the deecree of the court below as refused to award an issue 'to try the question whether James liea was of sound and disposing inind, memory and understanding at the time of the execution of the alleged will in controversy be reversed, and that the record be remitted, with direction to the court below to award such an issue ; the costs of this appeal to be paid by the appellees.