Leech v. Leech

1. Where objections are made before the Register to the probate of a will on the ground that the writing was procured by improper influence, and that the alleged testator was not of disposing mind and memory, and in the precept to the Common Pleas directing the issue such objections alone are stated, and in neither the pleadings, the bills of exceptions to evidence, nor the points submitted, is it shown that the case was put to the jury upon the ground of a subsequent will inconsistent with the one in issue and amounting to a revocation of it, it is too late to raise that question in the Court of revision. 2. It is not a subject of error that the Court, in answering points affirmatively, accompanied the answers with observations which impaired the effect of the answers, where the instructions taken together were proper, and where the observations of the Court were advisable in order to prevent the jury from being led into error by mere affirmative answers.

Error to the Common Pleas of Philadelphia county. This was an issue directed by the Common Pleas of Philadelphia, in pursuance of a precept from the Register of that county, to try the validity of the will of Charles Leech. In the issue, Charles Leech, the son and sole devisee of the alleged testator, was the plaintiff, and Samuel S. Leech, a brother of the said decedent, was the defendant. The will in question was dated on the 20th August, 1849. In the same it was declared that the testator made the same as his last will and testament, declaring all others, if any, to be void and of no effect, and it was added, that, “ In consequence of the affectionate, feelings I entertain for Charles Leech” * * * “I give and devise to him all my estate, real, personal, or mixed,” and Charles Leech was appointed sole executor. The testator died in April, 1851, being above eighty-three years of age, and leaving his said son and several brothers and sisters. The probate of the writing was objected to by Samuel S. Leech, on the ground that it had been procured by improper influence, and that at the time of its being made the alleged testator was not of disposing mind and memory. An issue was requested, and a precept was accordingly issued to the Common Pleas to direct one. On the part of Samuel S. Leech, the plaintiff in error, it was alleged that the habits of life of the testator, who had never been married, had been eccentric — and that for a few years before his death, his conduct evinced derangement and imbecility of mind; and it was alleged that when the will in question was made, he was incapable of making a will. He left considerable real estate, but no personal property. It was said that he had executed three wills — by the first one, said to have been executed in the summer of 1849, he had devised all his property to one Israel S. Elliott. The second was the will in question. The third was said to be a reiteration or copy of the provisions of the first one. It was testified by Elliott that it was from three weeks to a month after the first will that it was copied. It was testified by the counsel who wrote it that it must have been written after the commencement of September. The person who drew the last will said he thought that the testator, at the time it was drawn, was incompetent to make a will — • that he thought it might be drawn to humor him. He said that he had not seen that will since. On the trial, the defendant’s counsel proposed points as follows: 1st. It .is not material whether mental imbecility arises from insanity, old age, or bodily infirmity; if the testator’s mind is shown to be in a condition not to manage his own affairs or know what he was doing, his will is invalid. 2d. That eccentric habits, extreme old age, inconsistent and unaccountable actions, great defect in memory, and mental aberration and delusion, are evidences of such mental imbecility. Sd. That partial derangement of the mind, or an insane delusion as to a particular heir or person, whereby the testator was induced. to exclude him from his will, though sane in other respects, renders the will invalid. 4th. That where a person is shown to be subject to fits of mental derangement, the burthen of proof is on the plaintiff (in this issue) to show that his will was made during an interval when the mind was sane, and to prove such sanity. 5th. When the evidence discloses a state of facts showing undue influence over the testator’s mind, the jury may take this into consideration as well as imbecility, for they must decide upon all the facts of the case. King, President Judge, in his charge, inter alia, said: There are few subjects coming before Courts of law, that ought to be better understood by the general community, than what is meant in our Courts by the phrase “testamentary capacity.” And yet there are none in which the public are more in error. The prevalent idea is, that in order to constitute “ testamentary capacity, ” the intellect of a testator should be in its most perfect state of integrity, and possess all its original force and vigor. This, however, is an erroneous view of the subject. If such were the requirements of the law, few wills would stand a test so severe. A superstitious dread of executing such instruments, a timid fear that such execution may be the immediate precursor of death, leads to postponements and delay. And it continually happens that the final disposition of a man’s estate, by his last will, is the last business act of his life. One who is enfeebled and exhausted by the pains and sufferings of a mortal disease, and whose mind is agitated by the hopes and fears of eternity, can hardly be said to have his intellect in a perfect state of integrity. And yet a large portion of wills are made under such circumstances, and are every day sustained in Courts of justice. (A disposing mind and memory, in the view of the law, is one in which the testator is shown to have had, at the making and execution of a last will, a full and intelligent consciousness of the nature and effect of the act' he was engaged in; a full knowledge of the property he possessed; an understanding of the disposition he wished to make of it by the will, and of the persons and objects he desired to participate in his bounty.) The wills of the aged and infirm are alike good, although, when compared with their condition in the vigor of life, the minds of such testators may seem relatively enfeebled; provided they are shown, at the making and execution of such wills, to possess such disposing minds as I have just defined to you. Even the will of a maniac is good, provided it has been made during a lucid interval; during a time in which his mind has been restored to healthy though temporary action. The party, however, setting up such a case, must establish clearly the existence of the lucid interval during which it has been made. For general testamentary incapacity, once shown, is presumed to continue until the fact of temporary capacity is established by convincing proofs. Testamentary incapacity does not necessarily suppose the existence of insanity, properly so called. Weakness of intellect, from extreme age, from great bodily infirmity, or from intemperance, to the extent of disqualifying a testator from knowing and appreciating the nature, effect, and consequences of the act he is engaged in, is as much testamentary incapacity as raving madness. (If from any cause an alleged testator is so enfeebled in mind as to be incapable of knowing the property he possesses; of appreciating the effect of any disposition made by him of it; and of distinctly understanding to whom he intends to bequeath it; he is without the testamentary capacity required to make a valid will.) * * * Although incidentally other grounds for impeaching this will have been brought in view, yet the brief question for your decision is the testamentary capacity of the testator, not before, nor after, but at the actual time of its execution. He referred the facts to the jury, to be applied to the principles expounded by the Court. He further said that it had been contended that if the jury should by their verdict find that the testator possessed adequate testamentary capacity at the time of executing the will in issue, this would give validity and effect to the will in favor of Elliott, which it had been stated had been copied from the first will, and which it was contended was executed after the will in question. He said that the said last written will had not been produced, and whatever may be the legal effect of a finding in favor of the will in question in the issue upon the alleged last will in favor of Elliott, that such effect was not a question before the Court. Verdict was rendered for the plaintiff in the issue. It was assigned for error, that the judge erred: 1st. In taking from the jury the question whether the last will did not revoke the prior will in question, and in. treating that question as not under consideration. 2d. In his instructions to the jury as to the standard of mental capacity required to make a will. 8d. Because, in affirming the points presented, he accompanied them with observations which impaired their effect.