Perret v. Perret

Opinion by Mb.. Justice Gbeen, This proceeding was an issue certified from the register of wills of Allegheny county to the court of common pleas No. 1, to try the question of undue influence exerted upon the testator, Michael Perret, by his wife and daughter, in the making of his last will. The plaintiffs are the widow and daughter of the testator, and the defendant is his only son. The will in question was executed on the 11th day of February, 1896, and the — 139 — testator died on the 17th day of the same month. The precept included a charge of mental unsoundness, but on the trial that issue was practically abandoned, and the case was tried before the jury on the question of undue influence. By the terms of the will the whole estate of the testator was given to his widow absolutely, and in case she died before the testator it was all given to the daughter absolutely. Nothing was given in any event to the son. There were but two children, the daughter and the son. In no event could any part of the estate come to the son. The verdict of the jury was in favor of the defendant, and therefore against the will. The important assignments of error are to the refusal of the court to give binding instructions to the jury in favor of the plaintiffs, and the practical question in this Court, therefore, is, was there sufficient evidence of undue influence to submit the question to the jury ? If there was, the court below was not in error in refusing these requests. In order to determine the propriety of these assignments, therefore, it will be necessary to recur to the testimony in some detail. It was fully proved on the trial, and not at all denied, that the defendant lived with his father and mother until he was over forty years of age; that during all the time after be was old enough to work he worked incessantly and continuously for his parents, who conducted the business of market gardening on the property of the father, which consisted of a small tract of land containing about seven acres, and was situated on California avenue in the city of Allegheny. It was also testified by himself that he received no wages during all that time, and had nothing but his board and clothing for his service. Some two or three years before his father’s death he married and brought his wife home to live with him. It was proved without contradiction that his mother and sister disliked his wife greatly, and there was a continued state of wrangling and quarreling on that account, which culminated, according to the defendant’s testimony, in his being put off the premises with his wife. Things came to such a pass between the defendant and his mother that cross prosecutions for assault and battery resulted, and the cases were heard in the criminal court, and resulted in sentences that each party should pay costs. On the day that this occurred the mother and son met in the sheriff’s office for the purpose of pay — 140 — ing the costs, and at this point the testimony commences with proof of the declarations and acts of the mother, which it is claimed resulted in the alleged undue influence which procured the execution of the will in question. Hans Leibrich who lived in part of the house occupied by Michael Perret was at the trial and in the sheriff’s office, and out in the hall of the building. He was asked, “ What did Sarah Perret say to Henry, if anything, in the hall, after the case was tried? A. She came out to Henry at the side of the elevator and she says, ‘ Henry, what-have you done ? You have sworn falsely, and you shall see this evening. Your father have to make a will and have to cut you out without a cent. I fix you everything. I fix you.’ ” This occurred on February 11, the day the will was made. The witness having stated that they then went dowir to the sheriff’s office, was asked, “What did Mrs. Perret saj to Henry down there ? A. She repeated about the same; she went up to him and says, ‘ I fix you now, you swore false; you shall have not one cent; I go home to your father and he shall fix you out. I fix you.’ Q. Even after Henry left did she keep muttering down there? A. Yes, sir, all the time she was angry about the whole tiring. Q. What did she tell you to do that day immediately after or during the time you were in the sheriff’s office ? A. She sent me to lawyer Dunn. I shall go to Dunn to tell him that he shall come up and make a will for Mike. Michael Perret shall make a will and he shall come as notarjr public, and I went to Dunn.” The witness then said he went to Dunn’s office and delivered his message, and then he and his wife rode in the street car going home, and on the car Mrs. Perret again said, “Now I will fix that Henry; he makes me that trouble and swears false. I fix him for that; he will be cut out without a cent. . . . Q. That was the burden of her conversation ? A. Yes, sir, that was all the conversation—fix Henry now, and she got the control of her husband and she wants to fix him now, he will be cut out without a cent.” After they reached the house, he said the old man was there sitting by the fire and lying on the lounge, and he was “ dead sick,” and died five days after. He was asked, “Did she say anything to her husband when she went into the room? A. Yes sir, she told him all about it, that Henry was false swearing. She told him, and Eliza was in there, and they have control of the old man and — 141 — say, ‘ Dunn is coming- here, Dunn is a notary public and makes the will or bring a will and you have to shut Henry out without a cent, not to give him a cent or we shut you out of the house.’ . . . Q. What reply did Michael Perret make to the folks, Eliza Perret and Sarah Perret, when they told him unless he made a will they would put him out? A. He says, ‘Never mind; take all of it; you haven’t got enough. You want all!’ . . . . Q. What did Miss Eliza Perret say to her father, if anything, when they arrived home, and in the presence of Sarah Perret ? A. They are both talking together, one time Eliza talks and another time old Mrs. Perret talks and says have to cut Henry out; he swears false and he is against his mother; you have to cut him out. Q. What else did they say? A. They say lawyer Dunn comes out this evening at 8 o’clock and witnesses come here, and you have to make that will to shut Henry out without a cent.” Mrs. Perret denied all this conversation, and she also denied all the other conversations to a similar effect testified to by other witnesses, and Mr. Dunn said he came because be was notified by Charles Hartman, and not by Leibrieh. This raised a question of credibility which, of course, was for the jury. As to the declarations made by Mrs. Perret, there was a large am omit of additional testimony, some of which was as follows : Mrs. Katie Leibrieh, the wife of the last witness, said she was out iu the hall of the courthouse on the day of the trial. She was asked, “ Q. 'What, if any threats did Mrs. Perret make to Henry out in the hall ? A. Yes, sir; she said to him, ‘ Just wait Henry. I will fix you, because you swore falsely.’ Q. Did slie say wlien she would fix him ? A. That night. Q. Wliat did she say as to how she would fix him ? A. About the husband, she make bis will and Henry should receive nothing. Q. Did she repeat those threats down in the sheriff’s office ? A. Yes, sir.” She also said she went down in the car with her husband and Mrs. Perret, and that “Sarah Perret sent my husband to Mr. Dunn,” and that she repeated the threats several times in the ear. Slie was asked, “ Q. When you arrived at home at Perrets what, if anything, did Sarah Perret say to Michael Perret? A. After myself and my husband came to the house she said to Michael Perret, ‘ you must make your testament; you must make your testament; and Henry Perret — 142 — shall not receive a cent.’ That Mr. Dunn was coming and. he must make his will, or he would have to go out of the house. Q. Who would have to go out of the house? A. Michael Perret. . . . Q. Did this annoy the old man, or appear to worry him ? A. He was worried, and he says, ‘ God damn it, let me rest.’ . . . . Q. How long did they keep this up at the old man, telling him he should make a will like this ? A. Until night, until Mr. Dunn and Mr. Hartman came.” Miss Anna Hilke, a sister of Henry Perret’s wife, said she was present at the trial in court on February 11,1896, and was in the hall up stairs. She was asked, “ Did you hear Mrs. Sarah Perret make any threats to Henry out in the hall after the trial ? A. Yes, sir; she made a threat in the hall and also in the sheriff’s office. In the hall she just said she would disinherit him, cut him off without a cent; and when she got down in the sheriff’s office she added to it she would fix him for it, and, ‘ I will fix you to night without a cent. I will cut you off.’ She said that in the sheriff’s office and she also said it up in' the hall. She was very angry, because she lost the suit with Henry about some boards he had taken up for kindling wood, and that is how she happened to say it .... Q. Do you remember how she shook her finger? A. She shook her finger nearly every time she said it. She said, ‘ I will fix you to night.’ When she got down stairs she said, ‘ I will cut you off to night without a cent.’ ” William Tyler, another witness for defendant, a street commissioner, said he was present in the courthouse on the day of the trial and saw the parties in the sheriff’s office. In answer to a question he said, “ I noticed her calling Henry a lot of words; she shook her finger at him and said, ‘Never mind, Henry, I will cut you off this very night without a cent.’ That is all I heard.” Pie also said she was in an angry manner when she said this. Mrs. Jennie Hays, another witness for defendant, said she .was present at the trial, and was out in the hall, and down in the sheriff’s office with the parties, and heard Mrs. Perret talk to her son. She said, “ Sarah Perret came up to her son and she said, ‘ Never mind, Henry, I will fix you for this; I will have your father cut you off without a cent.’ ” And, again, when they had paid off the costs in the sheriff’s office, she testified that Mrs. Perret “ turned around to Henry and says, ‘ You made me pay all this money out and I will cut — 143 — you off tonight without a cent .... It is your fault I have this money to pay ’ . . . . She was very angry .... She was very much excited.” There was more testimony of the same kind which it is not necessary to repeat. It is enough to know that on that very night the old woman did precisely what she said she would do. Mr. Dunn and the witnesses came to the house, they went with the old man up stairs ; a will was there written and signed, and it did do exactly what the old woman said it should, cut Henry off without a cent. It was drawn in a rather unusual manner so as to accomplish that object without fail. It provided that if the testator survived his wife, the whole estate would go to his daughter. Although Mrs. Perret vehemently denied using these expressions at all, or any of them, the array of disinterested witnesses who testified to them, giving all the particulars, was altogether too great to leave any reasonable doubt upon that subject, and it is not to be wondered at that the jury refused to believe her, and gave credence to the defendant’s witnesses on that subject. Reflecting upon the character of the testimony, as being sufficient to warrant a finding of undue influence, it must be conceded that it was the very kind of evidence to establish that fact. By all the testimony it appeared that the testator was in an extremely enfeebled condition. He was very old, excessively weak, and by numerous witnesses it was testified that he was silly, childish, wandering in his conversation, quite ill physically, so much so that he died in five days after, and the physician who attended him certified that he died of senility. There was also testimony that he was very much afraid of his wife, and had not sufficient will power to resist her importunities. Moreover, in all the declarations she made, she herself proclaimed that she was going to have the will made so as to cut Henry off, and without a cent, and she instinctively and as a matter of course, assumed that she had the mastery over her husband and that he would do whatever she demanded of him to do. And the testimony of Mr. Leibrich and his wife, if believed, brought the wife’s intervention and urgency down to the very moment of the execution of the will, so that her power was exerted directly over the testamentary act. It is very seldom indeed that proof of undue influence is brought so very closely and emphatically to the very factum of the will. To — 144 — withdraw such testimony as -is found, in abundance in this case from the jury would have been the gravest error, and could not be thought of for a moment. The evidence that it was not the will the old man wanted to make was quite considerable from 'other sources. It was proved by a number of witnesses that he had frequently expressed himself as well pleased with his son, and his long service for him, and that he repeatedly said to different witnesses that he was going to divide his estate equally between his two children, illustrating his meaning to several of the witnesses by saying that he was going to divide just as he would cut an apple in two halves, giving a half to each child. In every respect we consider that the whole of the testimony conforms fully to the legal requirements of this- class of evidence, and it is not at all surprising that the verdict was in favor of the son. We are entirely satisfied with it, and have no desire to disturb it, being convinced that it was a just and righteous verdict, sustained by ample testimony. The first three assignments of error are dismissed. The proposition contained in the defendant’s first point is copied literally from the ruling of this Court in Wilson v. Mitchell, 101 Pa. 495, and, was therefore properly affirmed. The fourth assignment is dismissed. The fifth assignment has no merit whatever, and is dismissed. We cannot possibly discover any error in the sixth, seventh, eighth, ninth, tenth and eleventh assignments. They were mere comments by the court upon aspects of the testimony which were not at all in dispute, and the comments were entirely appropriate under the evidence. They ruled nothing, and did not purport to. The whole subject was left to the jury. Of course, the age and physical condition of the testator were proper subjects to be considered by the jury. We think it was not only the right, but the duty, of the court in explaining such a case to the jury to do just as the learned judge below did. The charge was very fair and altogether impartial, and the whole determination of the controversy was left entirely to the jury. There was, as there should have been, a careful and minute definition and explanation of the subject of undue influence, so that the jury might have a full and accurate comprehension of it, and as to the kind and character of evidence necessary to sustain such an accusation. We see nothing erroneous in any of the language of the court on these several matters, — 145 — anti the assignments are therefore dismissed. As to the twelfth assignment, in relation to the declarations and acts of Sarah Perret as to what she would do, and what she did actually do, in procuring the will to be made as it is, it would be strange indeed if these should be excluded. She was the very person who was charged with having exercised the undue influence, and her declarations were of her own purpose to do that very thing, to have Henry cut off without a cent, by means of a will which she would procure her husband to make. And this was followed up by actual and undisputed proof that that very thing was done, and at the very time she said she would have it done, to wit: the same night. And now we have before us that very will, actually made on that same night, and actually cutting Henry off from every possibility of getting a single penny of the estate, and yet we are asked to exclude evidence of her acts and declarations in producing that result. Most certainly we will do no such thing. The ingenuity displayed in accomplishing her object is something remarkable. If the will had nothing more in it than a gift of the whole estate to the wife, and then she had died before her husband, intestate, Henry would have received one half the estate as heir of his mother. But even that possibility was excluded by the next provision in the will, giving the whole estate to the daughter in case the wife died before her husband. The evil purpose, the positive malignity of the woman, could not be more sfrongly indicated than by this provision ; and that too against her only son, who had contributed by his daily and unrequited toil for twenty-five years to the support and maintenance of both his parents. It is doubtful if so gross a case of unnatural malevolence of a mother to a son can be found in the books. The principles and authorities cited in support of the twelfth assignment have nothing to do with this subject, and they are altogether inapplicable. The assignment is dismissed. Judgment affirmed.