SHOOK v. Рвостов.

assignments of mortgages, all of which, we are satisfied, were mere shams for the purpose of embarrassing Shook in any attempt to regain the property; the fact that the existence of a title, if there was any, was an affirmative fact much more easy for the defendants to prove than for complainants to disprove, and that such title, if one existed, must be supposed to have been more peculiarly within the knowledge of Lyon and Proctor; that, though they had set up no title in their answer, it was still competent for them to prove one if it existed, to meet and rebut the natural inferences against it, arising from their whole course of conduct; that the proof of such title would, at any time, have put an end to complainants' case, and that an abstract or exhibition of the papers constituting such title, with a proper explanation to complainants, before the institution of the suit, would, in all probability, have prevented it: all these considerations tend so strongly to show that there was no title to the Iowa lands, and that defendants Lyon and Proctor at least were aware of that fact, that these considerations, without reference to any negative proof by complainants, of want of title, have produced upon our minds a settled conviction, a full and satisfactory belief, not only of the want of title, but that defendants Proctor and Lyon, through whom the other defendants claim, were aware of that fact, and did not undertake to show a title because they were conscious of their inability to do so.

This being so, is there any rule of law,-can there be any, which shall so far prevent us from acting upon that belief, as to require us to hold that a prima facie case of want of title has not been established, and that complainants are bound to go further and introduce evidence tending to show the negative fact of want of title, before the burden of proof should be thrown upon the defendants to prove there was such title?

In view of all these facts going to show a want of title, it devolved upon the defendants to show that Proctor had

SHOOK V. PROCTOR.

title, and having failed to do so, or to make the attempt, the decree of the circuit court in chancery should be affirmed, with costs to complainants, in both courts.

The other Justices concurred.

Nancy McGinnis and others v. Mary Kempsey.

Witnesses: Quarrels with party: Discretion. The latitude to be allowed in collateral inquiries as to difficulties between a witness and one of the parties is a question resting somewhat upon the discretion of the trial court; and a court of review will not reverse a judgment for the exclusion of such inquiries, unless a clear abuse of discretion is made to appear.

Wills: Mental capacity: Reputation of executor named: Evidence. In a will case where the will is contested on the ground of want of capacity, evidence of bad reputation of the person named as executor is competent when accompanied with a showing of circumstances sufficient to justify an inference that the testator knew at the date of the will that his character was bad. Wills: Mental capacity: Evidence. It is competent for contestants of a will to inquire as to the capacity of the testator at the time, to plan and execute such a paper as the will proposed.—Kempsey v. McGinnis, 21 Mich., 123, approved. Evidence. The propriety of a question is not necessarily to be settled by considering it as a substantive and independent inquiry, but the preceding course of examination and the surrounding circumstances will be taken into account; and where, during a long and minute examination and cross-examination, the opinion of a medical expert as to the capacity of the alleged testator has been elicited upon groups of assumed facts, by carefully framed hypothetical questions, without each time repeating the facts assumed, a question on re-examination which did not include the hypothesis, is treated and considered as resting upon the hypothesis pointed at by the cross-examination. Evidence.

Where the person who drew the proposed will has testified as a witness for proponents, that on an occasion about a year before he drew the will he made a memorandum of a land trade between the testator and another, and that on the day of executing the will the testator called his attention to it, the exclusion of an inquiry by proponents as to what recollection he had upon the subject himself is not error; the question was immaterial; the recollection of the testator, and not of the witness, was the only thing of importance connected with the circumstance. Wills: Charge to the jury: Presumption of sanity: Evidence. It is not error to decline to charge that, "If the jury should find that upon the other testimony relating to the testator's mental soundness, the evidence was balanced, they should allow the legal presumption of sanity to decide the question in the testator's favor;" the burden of proof is on the proponents of a will, to establish capacity by other evidence than the presumption of sanity, and that presumption can not have the force of an independent fact to serve as a substantial make-weight against counter proof.

MCGINNIS v. KEMPSEY.

Testamentary capacity. Upon the subject of testamentary capacity and the intent and free action essential to the validity of a will, Kempsey v. McGinnis, 21 Mich., 123, is cited and approved.

Charge to the jury. A charge to the jury is to be considered together as a whole; and if an erroneous statement in one part of it, is so naturally and intimately connected in sense with others explanatory thereof, as to be understood by the jury as intended to be considered together, and as relating to the same point, and the charge considered as a whole is in substantial compliance with the requests of the party complaining of such error, his objection will not be sustained.

Wills: Publication. Whether it is necessary to the validity of a will executed in this state, that the testator should declare it to be his last will:-Quære?

Heard May 9 and 13. Decided July 11.

Error to Kalamazoo Circuit.

This is an appeal to the court below, from the order of the probate court, allowing the will of Thomas Patterson. The will was proposed by Nancy McGinnis, James McGinnis, Henry McGinnis, John McGinnis, Sarah Wiswell, Mary A. Payne, named as devisees in the will, and Botman Fitzsimmons, named as executor; and was contested by Mary Kempsey. The case was tried in the court below by jury, who found for the contestant, and the proponents bring the case here on writ of error.

The question put to Dr. Mottram, which is referred to in the opinion, was, whether, in his opinion, assuming the facts stated as to the condition of the deceased, he was capable of planning and executing, at the time specified, such a paper as the one offered as his will. This was explained to mean the mental process of originating the propositions of the will, considering them relatively, and of planning and executing the instrument proposed.

The contestant's seventeenth request to charge, referred to in the opinion, was as follows:

"17. That the will in question in this case is not valid unless the testator, Thomas Patterson, not only intended of his own free will to make such a disposition of his property as is made by such will, but was also capable of knowing what he was doing, of understanding to whom he was giving his property, and in what proportions, and whom he

MCGINNIS v. KEMPSEY.

was depriving of it as heirs who would otherwise have inherited his estate; and was also capable of understanding the reasons for giving or withholding his bounty as to them."

The court also instructed the jury on the subject of mental capacity, besides reading to them what is contained upon it in the decision of this case in 21 Mich., 123, as follows:

"Aside from the requisite formalities in the making of a will, the law defines the requisite soundness or mental capacity of the testator in this wise: A will is not valid unless the testator not only intends, of his own free will, to make such a disposition, but is capable of knowing what he is doing, of understanding to whom he gives his property, and in what proportions, and whom he is depriving of it as heirs, or as devisees under the will he makes.

"If a testator has mind enough to know and appreciate his relations to the natural objects of his bounty, and the character and the effect of the dispositions of his will, then he has mind sufficiently sound to enable him to make a valid will.

"If the jury should be satisfied that though the testator's mental powers had become enfeebled through mental decay or disease, he still had disposing mind, and if you find the evidence sufficient to show that he fully understood and intended to make the disposition which he has made of his property, then the will must stand, as touching the question of mental capacity or soundness, however unnatural or unjust its provisions may appear. Such are the tests the law prescribes for the guidance of courts and juries.

"The term, sound mind,' in the statute, does not mean that the testator shall have the same command of his mental faculties that he may have when in health. The law, recognizing that wills are often made in extremis, when the bodily powers are breaking, and the mental faculties are enfeebled, only requires that the testator shall retain so

MCGINNIS . KEMPSEY.

much of his mental power as will enable him to understand his relations to those who would be the natural objects of his bounty, the property he wished to distribute, and the manner in which he intends to distribute it.

"Upon this question I advise you, as requested by proponents' counsel: That even if the jury are satisfied that the mental powers of Patterson had become enfeebled or disturbed by disease at the time he made the alleged will, still if they find from the evidence that he did yet fully understand and intend to make the disposition which he made of his property, then the will must stand, as touching the question of mental soundness or capacity.

"You are instructed that if in the present case you should find from the evidence that Patterson, on the day he made the alleged will, was delirious, or that his mental faculties were otherwise obscured by the disease from which he was suffering, still this would not necessarily prevent his having sufficient capacity in law to make a will. Delirium or obscuration of the mental faculties by disease, must be so complete and so becloud the mind, that the testator does not understand the nature of the business in which he is engaged,' or does not understand at the time of making the instrument, substantially the act, the extent of his property, his relations to others who might or ought to be the objects of his bounty, and the scope and bearing of the provisions of the will, and does not possess the other qualifications I have already referred to.

"The impairing of the mental faculties by the effects of acute disease, such as delirium, or the enfeebling of them from any of the causes incident to such disease, must be to that extent which deprives him of the use of his reason and understanding to the extent already intimated. For if this is not the testator's situation, although his understanding may be to some extent obscured, and his memory troubled, yet he may make his will.

"There is an essential difference between the apparently lucid interval in delirium and in general insanity.

In