Wilson v. Parker

Montgomery, J. This is a contest over the probate of the will of George Jerome Parker. On the trial at the [639] circuit the two questions of. undue influence and mental incapacity were submitted to the jury, and a verdict denying- probate of the will was rendered. The proponent brings error. At the close of the testimony the proponent made a motion to withdraw the case from the consideration of the jury, and in this court contends that there was no evidence tending to show either mental incapacity' or undue influence. As to the question of undue influence, it may be said that there was no direct proof that at the very time the will was executed any solicitation on behalf of the legatees was made. For evidence of undue influence we must look elsewhere. The immediate relatives of the deceased were Alice London and May Parker, nieces. There was testimony tending to show that the relations between the deceased and these nieces were friendly, and had always been so. The deceased was a farm laborer, who had accumulated about $3,500 through his labor and savings. About two years before his death, a cancer made its appearance upon his lip. He then had an operation, and the cancer was removed, which gave temporary relief. About a year later, another cancer appeared upon his hand. Another operation was performed, btífc, a short time afterwards, the disease manifested itself in a serious form in his right armpit, and it progressed so rapidly after its first appearance that within a few months he was taken to a hospital, where another operation was performed to l’emove the same. For two years prior to his death he had a room in the basement of a building called the “Melrose Flats,” where he did his own cooking. During the summer prior to his death he had been in the habit of calling upon his friends in the country south of the city, and during this time he declared to some of his friends that he expected his property to go to his heirs, and had no intention of making a will. There is some testimony of other declarations inconsistent with this. In the latter part of October he became [640] so bad that he was taken to the residence of his aunt, Jane McKenzie. At this time he had been sick two or three months, and was not in condition to do any work. He could hot use his right arm. jete was weak, and getting weaker every day, and had the attendance of a doctor nearly every day. He died on the 30th of November. On the 3d of November proponent called at Mrs. McKenzie’s, and took Mr. Parker in his buggy, and conveyed him to his place in the country, some eight miles distant. At this time there was testimony tending to show that he was in such a condition that he had been unable for more than a week to keep anything on his stomach except whisky sling, that he could not eat solid food, and that for a week before he went to Wilson’s he had not sat up all day. When Wilson proposed his going, Mrs. McKenzie said that Mr. Parker was very weak, and suggested that it was a long ride out to Wilson’s place for so weak a man. Before Wilson took decedent away, he had had the attendance of one Andrew Wright as a nurse, who dressed his arm, put on his clothes, and assisted him up and down stairs. He had also had the attendance of a doctor. On the 12th of November Wilson brought decedent back to the city, took him to his room in the basement of the Melrose Flats, built a fire, and left decedent there,' while he went to find some one to prepare a will. Judge Perkins was found, and visited the room where decedent was, and prepared the will in the presence of Wilson, and it was duly signed and witnessed. Decedent was then taken back to Mrs. McKenzie’s. Mr. Wright, his former attendant, was sent for and attended him. He was found in such a weak condition that he had to be carried upstairs, and the nurse remained with him until about midnight. The doctor was also called in. He continued from this time to grow worse, and died on the 30th of November following. The will bequeathed to the two nieces $200 each. It gave to his aunt, Jane McKenzie, $500. It gave to the proponent, Wilson, $300, to Wilson’s wife $200, to Wil [641] son’s son $100, and to three Huntley children $100 each; the Huntleys being relatives of Wilson. It provided for a monument, at a cost of $100, and made the proponent, Wilson, residuary legatee. We have not attempted, and shall not attempt, a detailed statement, in this connection, of all the testimony bearing upon the question of decedent’s condition. The opportunity for the exercise of undue influence was certainly present, and, taken in connection with the fact that the will was made largely in favor of the proponent, under whose influence decedent was, together with the suspicious fact of his having taken him to this cold room in the basement of the Melrose Flats, instead of returning him to his relative’s, and having the will executed there, we think justified the submission of the question of undue influence to the jury. . As was said in Rivard v. Rivard, 109 Mich. 98 (66 N. W. 681, 63 Am. St. Rep. 566): “Undue influence is largely a matter of inference from facts and circumstances surrounding the testator, his character and mental condition as shown by the evidence, and the opportunity possessed by the beneficiary for the exercise of such control.” It is true that cases may be so clear that, even where opportunity and motive are shown, the court may be justified in withdrawing the question of fact from the consideration of the jury. But we do not find this such a case. As to the question of mental capacity, Dr. William Clark, who was the attendant of the decedent before he went to the country and after he returned, in answer to the question: “Then he was in that condition of mind, or body and mind, where he was easily influenced, carried away by the surroundings ?” replied : “Yes, I think he might be influenced. “ Q. You give that as your opinion as a physician, and knowing the man ? “ A. Well, I don’t know as it is a medical question, but that is the opinion I have of a man in that condition, [642] —he could be influenced by those who were kind to him. I have expressed an opinion in relation to Mr. Parker that his will would have been made in favor of some one else had he been in their charge at the time. * * * I told somebody, shortly after Mr. Parker died, that if Mr. Parker had been at Huntley’s, or at any other place instead of Wilson’s, they would probably have got his property had they done as Wilson did.” It is true this testimony does not go the length of showing absolute mental incapacity. But there was testimony by other witnesses tending to show a want of mental capacity, if their testimony is held competent. It is contended, however, that some of the testimony offered upon this branch of the case was incompetent. ■ The question as to whether the opinions of the witnesses Woodard, Wright, and London were receivable rests upon whether a proper foundation was laid by a statement of facts within the knowledge of the witnesses respectively. Without reciting at length the testimony of these different witnesses, an examination of the record satisfies us that there was sufficient to justify the court in receiving the opinions of the witnesses. The criticism -as to the foundation goes rather to the weight of the testimony than to its admissibility. The other questions presented do not require discussion. The judgment will be affirmed. Hooker, C. J., and Moore, J., concurred with Montgomery, J.