Aikin v. Weckerly

Graves J. This was an appeal from an order of the Judge of Probate, which determined that the instrument mentioned in the record as the last will and testament of John Aikin, deceased, had been duly proved and established. After the appeal, an issue was regularly framed in the Circuit and tried there before a jury, who found that the instrument in question was not the last will and testament of John Aikin. TJpon this trial the proponent, Thomas Aikin, excepted to several decisions of the Court in charging and refusing to charge, and these exceptions are now before us upon writ of error. The plaintiff in error who propounded the supposed will for probate, requested an instruction to the jury that if they found a fair balance of testimony in favor of the validity of the will, they should then find a verdict for pro — 500 — ponent, but tbe Court refused so to charge and the first assignment of error is based on this ruling. As it does not appear that the Court gave any instructions relating to the point noticed by the request, the question raised by the refusal to accede to it, is vitally important. The jury were not merely left without any guide from the Court, on a point upon which the verdict might turn, but were left to imply, that a finding that the will was well executed, would not be authorized upon a balance of testimony supporting that view. The reasoning by which this ruling of the Court is sought to be maintained is ingenious, but is thought to be too refined for its object. It is urged for defendant in error that it is not a “fair balance,” but a “preponderance,” which the law requires generally in civil cases, and even then, that the “preponderance” must be of “proof” and not of the “instruments” of evidence. It would undoubtedly have been more in accordance with the practice in this State, and more in consonance with the niceties of law language to have worded the request in the manner indicated by the reasoning of contestant’s counsel, but it is questionable if a charge in that form would have been more useful to the jury, than in that stated by proponent’s counsel. The shape of the request appears to ha,ve followed the language of the Supreme Court of Vermont in a recent case, and we think if the jury had been charged according to it, they would have received it as meaning precisely the same thing, which contestant’s counsel admit would have been proper. When jurors are to be instructed on points of law, it is the plain duty of the judge to use such terms as will practically answer the object to be attained. The purpose is to convey to the minds of the jurors such legal knowledge as the case requires, and to that end — 501 — tbe charge should be conceived in terms as direct, distinct, and explicit as the circumstances will permit, and as far as practicable in popular language. And in this connection we deem it proper to observe, that the charge will be less open to misapprehension and less difficult of application to the facts, when it is submitted complete and entire upon all the legal points in the case requiring the Judge’s notice, than when it is broken into fragments and made to consist of a series of isolated propositions of opposing counsel. If the instruction given or asked for is clear, if it could not mislead those without the walks oi the profession who act as jurors, hut would be readily understood by them in that sense which would make it correct, the circumstance that a subtle criticism, though technically just, should find flaws in it, ought not in a court of review to derogate from its propriety. Whether a failure to give any instruction upon a matter requiring it and where one was asked, can be defended on the ground that the terms of the request were not technically accurate in the highest sense, though manifesting clearly to the Court the nature of the instruction prayed for, — is a question we do not consider. The counsel for contestant further observed on this branch of the case, that it seemed doubtful whether the law did not require something more than a preponderance of evidence to justify a verdict for proponent. We think, however, that analogy, practice and direct authority fairly overrule any speculative doubt of this kind. Between the rule which has always obtained in ordinary civil actions, and that universally applied in trials for crime, no middle course sufficiently definite and practical to be recognized and adopted seems to have been discovered. But if an intermediate line could readily be drawn, we do not perceive how the ends of justice would he advanced by it in these testamentary cases. It is true that — 502 — judges in speaking of the degree of truth advanced or needed on particular occasions, have sometimes used qualifying words not found in an exact statement of either of the rules just mentioned, but this has been done generally, if not always, either to mark a proposition with judicial emphasis, or denote the amount of evidence given or required in cases of discretion. Instances of this description, however numerous, would not suffice to settle as a principle, that testamentary issues should be resolved by a rule lying somewhere between those respectively applying to civil and criminal proceedings. An exception was taken to that portion of the charge, which advised the jury that the burden of proof was upon the proponent and continued with him throughout the case. This objection appears to have been raised on the theory that the proponent was bound in the first place to make a prima facie case in favor of the testator’s competency, that the ordinary common law presumption in favor of competency afforded sufficient evidence for that purpose, and that thereupon the contestant assumed the burden of proof and was bound to show the testator’s disability. The inquiry out of which the question arose related to the sufficiency of the testator’s • understanding to make the will; and the result of that inquiry may have turned on the decision of the point presented. It is seen that the ground really occupied by proponent, is that the presumption of testamentary capacity supplies all the evidence on that subject which the law requires, unless such counter proof is offered as will overcome this presumption, and that even in cases where a contestant introduces opposing evidence on the issue of testamentary ability, the law casts upon him the burden of showing incapacity by some amount of proof not less than a preponderance. This view necessarily assumes, that without further proof than is supplied by this presumption, the finding should — 503 — be in favor of competency in all cases where the probate is unopposed, and in all contested cases, where no evidence is given by contestant on the point of testamentary ability or where the opposing evidence submitted on that subject, will no more than balance the presumption. This position is believed to be untenable. This Court decided in Beaubien v. Cicotte, 8 Mich., 9; that the proponent of a testamentary paper for probate, was required to aver the sounduess of mind of the testator at the time of execution, and that the burden of proving the fact rested upon him, but it was not found necessary to decide in that case upon the effect of the common law presumption of sanity, as an item of evidence bearing on the averment of testamentary capacity; or its aptitude as evidence under the requirement to prove the averment. The case of Taff v. Hosmer, 14 Mich., 309, however, not only affirms that proponent before resting is bound to make a prima facie case on the averment of soundness of mind, but is an authority that the necessity of making such a case on that point involves the production of some other evidence of testamentary capacity than is .furnished by the legal presumption. It is true that this last proposition is not explicitly laid down in Taff v. Hosmer, but the opinion of my brother Cooley noticed the fact, that proponents in that case before resting had submitted evidence in aid of the presumption of law, and treated the course so pursued as agreeable to usage and correct in principle. In these testamentary cases, the burden of proving capacity is not merely cast in the first instance upon those averring it, but it abides with them during the trial. Undoubtedly the jury must consider and weigh the whole evidence hearing upon the point, whether presumptive or coming from one party or the other. But as those who propound the will for probate have the burden of proof, or — 504 — in other words, are bound to establish their averments by a balance of proof in their favor, they will necessarily fail beiore the jury, unless on the whole evidence such balance is found. If it were otherwise, and the burden of proof was devolved on contestants, the parties asserting testamentary capacity would be entitled to a verdict, if the evidence should be equally balanced, and hence the parties really holding the affirmative would succeed, when in legal contemplation the matter would remain as though no evidence whatever had appeared. The question throughout the trial is whether the testator was of sound mind ? And the whole evidence applicable to it belongs to the jury; but since proponents must aver testamentary capacity, and support such averment by ■a measure of evidence outweighing that opposed, they will fail if the whole evidence on the subject, presumptive and otherwise, supporting the averment is found to fall below this measure of proof. The assignments of error grounded on instructions touching attestation may be considered together. They all relate to the meaning of the statutory requirement, that a will must be “ attested and subscribed in the presence of the testator,” as applicable to the facts of this case. The endeavor would be a vain one to cite and examine cases bearing on this question. Many of them will be found collected in the recent work of Mr. Redfield, on the law of wills, and in other elementary books, and while they have hardly sufficed to guide the text-writers to very precise results upon some points, they seem to have led to pretty definite conclusions on others. Therefore,'without atternpting a review and comparison of cases, it is deemed sufficient to state, as concisely as possible, such of the propositions they seem to support, as are called for by the circumstances of the present proceeding. The condition and position of the testator when his — 505 — will is attested and in reference to the act of signing by the witnesses, and their locality when signing, must be such that he has knowledge of what is going forward and is mentally observant of the specific act in progress, and, unless he is blind, the signing by the witnesses must occur where the testator, as he is circumstanced, may see them sign if he choose to do so. If, in this state of things, some change in the testator’s posture is requisite to bring the action of the witnesses within the scope of his vision, and such movement is not prevented by his physical infirmity, but is caused by an indisposition or indifference on his part to take visual notice of the proceeding, the act of witnessing is to be considered as done in his presence. If, however, the testator’s ability to see the witnesses subscribe is dependent upon his ability to make the requisite movement, then if his ailment so operates upon him as to prevent this movement, and on this account he does not see the witnesses subscribe, the will is not witnessed in his-presence. The instructions given to the jury on this subject, were not entirely harmonious; and one which appears to have been intended as quite emphatic, may have led the jury to suppose that the testator’s visual perception of the signing by the witnesses was indispensable to a valid execution, even though his seeing was contingent upon some slight movement, which he omitted simply because he did not care to see, or although his failure to look at the witnesses when signing, proceeded from his own choice. That portion of the charge which seems liable to this objection was in these words: — “ If the jury find that the testator did not in fact see the witnesses attest the instrument, the statutory requirements would not be complied with, although the facts prove a possibility of his seeing the witnesses subscribe their names.” — 506 — If the -witnesses subscribed the will where the testator could see them do it by some slight movement of his head, or by turning and opening his eyes or the like, and, being able to make such change, omitted it because he had no desire to see, or was careless or indifferent about it, it was certainly “possible” for him to see the witnesses subscribe, and such a “possibility” of seeing would assuredly suffice to meet the “statutory requirements,” if attended by the other conditions prescribed by law. The 6th and 7th assignments of error complain of those portions of the charge which related to testamentary capacity, and. it is said that the instructions on that subject necessarily tended to mislead the jury. It does not seem to us, however, that these instructions were open to that objection. The charge on which the 6th assignment of error is based contained an elementary proposition quite proper in itself. In giving it, the Circuit Judge attempted no definition of soundness or unsoundness of mind, but reserved all advice on that subject for the instructions immediately following and those given on proponent’s request. The purpose was to simplify the investigation by the jury, and give them some standard for measuring the capacity of the testator when he made the will; and in directing them, for this purpose, that the testator should be compared with himself and not with others, the Judge laid down the only practicable rule the case admitted. The remaining instructions were intended to meet the facts which had been developed, and convey to the jury such information respecting testamentary capacity and the phenomena of mental unsoundness, as would enable them to compare the condition of the testator at the time of executing the will, with his condition at other times, and ultimately to enable them to ascertain whether he was competent or not. Many of the instructions upon this subject were given on — 507 — tbe request of proponent’s counsel and are not tbe subject of complaint here. Tbe frame of tbat portion of the charge objected to, conforms in substance to tbe view expressed by many eminent tribunals, and was quite as favorable to testamentary capacity as tbe passage on tbat subject in Beaubien v. Cicotte, 12 Mich., 459, witb wbicb we are satisfied. Tbe criticism of proponent’s counsel on a single expression we think too subtle and far-fetched. It is quite improbable, if not impossible, tbat tbe jury should have taken tbe instruction in tbe sense wbicb counsel suppose, and hence we cannot accede to tbe argument tbat tbe charge on tbat ground operated as a misdirection. The order of tbe Circuit Court must be set aside witb costs and a new trial ordered. Tbe other Justices concurred.