Kingsbury v. Whitaker

The opinion of the Court was delivered by Poché, J. This is a contest over the will of G. M. Bowditch, a resident of this city, who died in Sherborn, Massachusetts, on the 1st of August, 1877, and whose succession was opened and is now pending in — 1056 — the Second District Oourt of the parish of Orleans. The plaintiffs, widow Sarah KiDgsbury, a sister, Granville Bowditch, a brother, William B. H. Dowse, a nephew, and Deborah P. Dowse, a niece, of the deceased, seek to have said will annulled on the ground of the insanity of the testator at the date of the will, and for several years before. Defendants filed a general denial, and specially deny that at the date of said will the testator was of unsound mind, or, in any way, incapacitated from makiug a will. The judgment of the lower court was in favor of plaintiffs, annul-ing the will and rescinding all orders for the probate and execution of t he same, and defendants have appealed. The will was made in this city, under the olographic form, and is in' the following words: “New Orleans, June 24th, 1876. “ Knowing the uncertainty of human life, I, Galen Melvin Bowditch, make this my last will and testament. Having never been married, and h iving no children, I give and bequeath all my property, real, personal, and whatever I may die possessed of, to my sister Mary Ann Bowditch, now married to Samuel Fiske, in the town of Sherborn, Massachusetts. “ I appoint John S. Whitaker executor of this my last will, with seizin of my estate. G. M. Bowditch.” The case has been very warmly and ably contested; the evidence is vary voluminous, and somewhat conflicting, but after a careful perusal and comparison of all the testimony, aided by the able briefs of counsel in the case, we are compelled to disagree with our learned brother of the District Court in his conclusion that G. M. Bowditch was of unsound mind, and under mental incapacity to make a valid will on the 24th of June, 1876. Sanity, or soundness of mind, being,the natural condition of man, insanity is never to be presumed, but must be a "Amatively and contradictorily established. This rule, which is founded o a reason and common sense, is sanctioned by the jurisprudence of England, France and of our own country, and has been consecrated by the most distinguished authors on this subject. This wholesome rule has a peculiar application in a case like this, when the will, written by the testator himself, presents a series of wise and judicious dispositions, contains no contradictions, no extravagance, not a sentence, not a word indicating that it was the offspring of a “ mind diseased,” and it throws ■ upon the heirs attacking the will the burden of proof of the unsound-noss of mind of the testator at the date of the testament. 21 A. 60. This task was undertaken by the plaintiffs, and, in our opinion, they have failed. After a close inspection of the record, which contains nine hundred and two pages, we have gathered the following facts which bear upon this controversy: — 1057 — Galen Melvin Bowditeh, a native of Massachusetts, moved to and .settled in Louisiana in the year 1830. By reason of his early experience in marine affairs, he was soon employed in the service of the United States Customs as Boarding Inspector at the Southwest Pass of the Mississippi river, in which employment he was retained for twenty-five years. With a good salary, and living in a dreary and lonely place, where he bad few or no opportunities of spending his means, being naturally industrious and economical, he soon accum.ulated.some money, which he invested mainly in railroad,insurance and bank stock and other securities. After the war, and during the damaging administrations which controlled the destinies of our State, and under the various financial commotions which shook the whole country, his investments were subjected to serious losses, and his handsome competency was materially reduced. These circumstances, coupled with the character of his associations, and the habits contracted at the Balize, mainly his too free indulgence in ardent spirits, preyed upon his mind, and rendered him, as bo ■says in one of his letters to his favorite sister, Mrs. Fiske, irascible, sad and despondent. Under these exciting causes, he became subject to delirium tremens, manifested by paroxysms of rage and violence bordering upon madness, and producing temporary or' intermittent insanity. These attacks, rendering him intolerable and at times dangerous, he was frequently arrested and confined, sometimes in jail and three ■times in different insane asylums. One of these attacks occurred in the year 1874, in Massachusetts, •where he was visiting his relatives ; it was of unusual violence, and culminated in his incarceration in the Worcester asylum of that State. This circumstance drew the earnest attention of his relatives to his condition, and some of them, not from a feeling of kindness for him, but ■of keen interest for the safe-keeping of his fortune (which was exaggerated), were instrumental in procuring his direct confinement, and from that time, were relentless in their efforts to deprive him of the adminfe - tration of his property. This is apparent from a letter of Rev. Mr. Dowse to Mr. Peterson, on Sept. 18,1874, and by the course of Dowse, jr., in the interdiction pro'ceedings instituted by him on the 24th of June, 1876. And the evidence fails to show that at any time the Dowse family had given proof of any particular friendship or kindly feelings for the deceased. A great deal has been said about the insane delusion under which the deceased had conceived an unfounded prejudice against the Rev. Mr. Dowse and his children, as well as against Mrs. Kingsbury and Granville Bowditeh. — 1058 — It is manifest that he had no fondness for them, especially the Rev¿ Mr. Dowse, whom he styled an “ orthodox thief ” in one of his letters. But we fail to see any insane delusion in this circumstance. This antipathy resulted from natural Causes, and sprang up long before any suspicion arose as to the soundness of his mind, and, in our opinion, it was rational and well founded. In a letter of the 17th of November, 1864, to his sister, Mrs. Fiske, the testator, who was paying to Rev. Mr, Dowse $3 a week, for the board of his mother, complains that Dowse had called for an increase of board, on the pretext that the old lady gave too much trouble to his daughters, and Bowditch uses the following-language about the reverend gentleman: “ I felt very much irritated to-think he should want me to pay mpre, and to hire a house, particularly at this time when my affairs look so bad, therefore I wrote him a very abrupt letter, perhaps too much so.” And the same feeling prevails in every letter when he happens to mention him. He also complained of his other relatives, to whom he had at times loaned money, and who declined to settle with him, even when requested to turn it over to Mrs. Fiske, his sister, who was very-poor, in debt, and in need. ' These feelings of coolness and apathy were kindled and crystalizecl into hatred and rage when he discovered that these same relatives had co-operated in having him incarcerated in the Worcester Asylum. Soon after his release from that asylum, in a letter to a friend, on-October 30th, 1874, he uses the following language: “ You will recollect-the day I saw you in Boston, and that I promised to meet you the next day at the ‘ Advertizer Building.’ I went there and could not find you. The same day I heard that Dowse was trying to get me back again at Worcester Asylum, and as I have no friends at Ashland or Sherborn, they care nothing further for me than to get my money; I concluded to return at once to New Orleans, and get clear of the d — d s. Here I have friends, and Dowse would stand a worse chance than I did at-Sherborn.” In addition to close reasoning, and a remarkable composition for a-man recently released from an insane asylum, this letter shows very good) reasons for the bitterness of the testator’s feelings for his “ orthodox, brother-in-law.” Another feature of incurable insanity, relied upon by plaintiffs, is in. his mania for picking from the streets cigar stumps, rags, garbage, and other stuff, and carefully storing the same in his room as valuables. This certainly proves an acute mania, and partakes of the nature of insanity, but it appears from the evidence that this mania was" apparent only during his attacks of mania apotu, and were brought about by the-same causes which we have heretofore described and accounted for — 1059 — and these circumstances fail to show insanity or mental incapacity to make a will or enter into a binding contract at the date of the execution of this will. In the case of Chandler vs. Barrett, reported in 21 A. 60, it was-proved that the testatrix had once ran upon the roof of a house, trying to escape from an imaginary robber; that she once burned all her clothing ; that she suspected her children of intending to boil her in a kettle, and had committed many and more incongruous acts than those charged against the testator in this case, and yet the Court refused to set aside the will in that case. See, also, the case of Hebert, Tutor, vs. Winn, 24 A. 386. We fail to see how this mania of itself could incapacitate him from administering or disposing by will, or otherwise, of his property, especially as the evidence shows that he was at that time, and always, an intelligent and close business man; well posted on current events and financial developments. These qualities are conclusively shown by his letters, of which a great number are of record, and have been read by us with particular care and great interest. And it will be conceded that the letters of a man in the condition of Mr. Bowditch, covering a series of years, from 1864 to 1877, written before and after the occurrence of his fits of temporary insanity, afford the very best, mode of judging of the soundness or unsoundness of his mind. A careful perusal of these letters has satisfied us that Mr. Bowditch was not only not an idiot, an imbecile, or a confirmed maniac, but that he was a man of more than ordinary intelligence, of considerable learning, and with commendable facility of writing, a close observer of men,, things, and of passing events, and of strong and ardent convictions on business, politics, political economy, and on many other subjects. Plaintiffs rely with great confidence upon the testimony of experts, physicians, who had attended to Bowditch at various places and on different occasions. Drs. Hunter, Logan and Stone, of this city, were examined on the subject. Neither of them was called to treat the deceased for mental disease, but alJ of them had been called to prescribe for a sore foot,, which had caused him great suffering, confinement and trouble. Dr. Logan does not state absolutely that Bowditch was insane, he-says: “I can’t tell what his state of mind was, because it seemed to be a kind of intermittent state of insanity.” Drs. Hunter and Stone venture to state that he was incurable, and that he must have been insane on the 24th of June, 1876, although they did not see him on that day, nor for several days or weeks before. The physician!^ examined in Massachusetts lean to the same opinion. It is evident that these physicians saw Bowditch only during his attack or paroxysms, and not during his lucid intervals. In the nature of things, — 1060 — they were not sent for when the patient was quiet and causing no trouble to his friends or nurses. But in a case of this nature and of this importance, we are not to be guided or influenced solely by the opinions of medical men, who have examined the patient under the most unfavorable circumstances, none of whom saw the deceased on the day that he wrote his will, or immediately before, or soon after the completion of the act. We take the opinions of the several physicians as worthy of the most careful examination, and the most respectful attention, to be weighed along with other testimony, and all to be considered together in assisting us to our own conclusion. 21 A. 60 ; 29 A. 302. ■ For the same reasons, we are not to be concluded by the judgment of interdiction pronounced against Bowditch, by the District Court, and now on appeal before this Court. On the other hand, we attach great importance to the facts and incidents of the testator’s life, as related by his sister and by her husband, by his'life-long friends, and by those who were his daily and constant associates for many years. When we are told by physicians and other persons that in 1873 the testator was insane and unable to administer his own property, we turn to his letters of that date, which are well written, in good style, well connected, full of wise reflections, showing a correct appreciation of all the author’s surroundings, and comparing letters written by the deceased from and after the year 1873, to the end of July, 1876, with other letters written by him during previous years, as far back as 1864, we see no marked difference to justify the conclusion that his mind had been permanently impaired or disabled. On the contrary, we detect the same style of writing, the same run of thought, the same views on politics, on the state of the country, on business, and on the various members of his family. In all of them wc find repeated expressions of great friendship and growing fondness for his sister Mary Ann, the universal legatee, a legitimate solicitude for her welfare, great appreciation of the kindness and attention which she had shown him, and an unshaken determination to provide for her in his will to the full extent of his means. In support of these views we insert a few extracts from his letters. In a letter of June 17th, 1874, written to Mr. Sinnott, from Ashland, Massachusettes, we find the following passage, which shows also that Bowditch was a hard drinker: “Since I came here last everything seems to be so different, so improved, that the only way I can account for it is this : when I was here before I was | drunk all the whole time, and could not see beauties and improvements. There has been immense alterations and changes in the — 1061 — 'city of Boston and vicinity. The roads are free of stones, houses prettily painted, with little and big flower gardens, blooming with flowers, I think they look so nice. I am now sitting in my sister’s little parlor, so called. * * * My sister’s little grand-daughter brings me my slippers, a glass of water, and says: ‘ God bless Melvin.’ This is caused by kindness and candy, I presume.” When physicians tell us that Bowditch must have been insane on the 24th of June, 1876, we turn to his will, written entirely by himself, as shown by the testimony of Whittaker and Spearing, two witnesses of unimpeached character and veracity, who saw and conversed with him on that day and at that moment, to whom he spoke very rationally of his will, and we must conclude that the physicians are mistaken, and this conclusion becomes irresistible when we read the following passages taken from his letter of July 14,1876 : “ Yours of the 9th instant, received a few moments ago. * * * I have read it to Mrs. Canterbury, she says you are worth all the rest of my relations at the North; and so says Melvin, your brother” (the writer). “About my case (interdiction), the courts here are closed, and postponed during the hot summer, and I shall have plenty of time to make the defense before the case is called up. * * * It is a very pretty state of affairs for them to think I am incapable of managing and taking care of my own money that I worked hard and honestly for.” * * * “Peterson is here, and will assist me in all his power, which I think is very important, as his character is unimpeached. * * * I don’t know what Mr. Lawyer Nutt could do in my favor out here ; if the case was in Massachusetts, he would be an important witness in my behalf.” It provokes a smile to read such reasoning from the pen of an unfortunate man, who was then sought to be, and was subsequently inter-■dieted. "We could quote many such passages from his numerous letters, but it would unnecessarily add to the length of this decision, which has ■already acquired formidable dimensions. Our conclusion is, therefore, that on the 24th of June, 1876, G. M. Bowditch was of sound mind, fully capable of contracting and of making a valid will, and that his will of that date should be executed according to law. It is, therefore, ordered, adjudged and decreed that the judgment ■of the lower court be annulled, avoided and reversed, and that plaintiffs’ ■demand be rejected, with costs in both courts.