Everding v. Hutchinson

McFARLAND, J.

This is a contest of the probate of a will alleged to have been executed by Hannah T. Langley, deceased, on the twenty-second day of' February, 1901. The proponent of the will is John Everding, named therein as executor. The contestants are Thomas B. Hutchinson and Sarah de Pratie, the former named as executor, and the latter as legatee, in a prior will, alleged by them to have been made by said Hannah T. Langley, on the eighteenth day of April, 1900. The contest was upon various grounds, and, among others, that the testatrix, at the time of the making of the proposed will of February, 1901, was of unsound mind and mentally incompetent to make a will; and upon this latter ground the court below rendered judgment in favor of the contestants, and declared the said last-named will to be invalid, and denied it probate. From this judgment the proponent appeals.

Respondents contend that, for reasons assigned, there is no bill of exceptions before this court, that there is no evidence here, and that the appeal must be "determined upon the judgment-roll alone. But under our views of the case we do not deem it necessary to determine this contention, and will consider the case upon the assumption that the bill of exceptions is properly before us.

We do not think that the conclusion reached in the court below, that the testatrix was of unsound mind and incompetent to make a will at the time the will here proposed was made, can

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be disturbed here. We do not deem it necessary to inquire whether certain “delusions” shown by the evidence, some of which might well be considered as “insane,” had any direct influence over her when in the act of making the will. She was quite an old woman, and age and disease had weakened both her physical and mental powers. According to the testimony of a large number of witnesses who had ample opportunity of knowing her well, her mental faculties seem to have been nearly all obliterated. Especially did she not have a disposing “memory.” One witness who had lived with her for several months testified: “I don’t think that Mrs. Langley knew what she was doing most of the time, all the time I knew her;” another, that “she had no memory at all.” A few among the many facts showing her lack of memory are the following: She could not remember the names of her intimate acquaintances; and this forgetfulness was not the ordinary one of a person of sound mind who 'has a difficulty sometimes to remember a name; it was general and continuous, and went to the identity of the persons as well as to their names. When acquaintances called on her she could not remember the next day that she had seen them. She' could not remember the name of a woman whom she had known for a long number of years, and who at one time stayed with her for several weeks, and while the woman was staying with her the testatrix could not remember her name, and constantly called her by another name. At one time she forgot her own name, and when a witness who was with her at the time told her that “her name was Hannah Langley,” she would not believe it. She could not understand or remember that a certain boy came to her house regularly every evening to get milk. She would see the cow in the yard and think it was something else. At the table she would not remember what she had eaten, or the fact that she was in the act of eating. After she had eaten some kind of food—pie, for instance—she would immediately go into an adjoining room and tell her husband that she did not have any of that kind of food. She called a Mrs. Lewers, a mature woman, who was nursing her, a little girl, and would tell her to go out and play with the other children. The foregoing is sufficient to show the general nature of the evidence as to her