(43 Mont. 353) In re MURPHY'S ESTATE. MURPHY v. NETT. (Supreme Court of Montana. May 27, 1911.) 1. APPEAL AND ERROR (§ 1078*)-WAIVER OF ERROR-FAILURE TO ARGUE. A point not raised by assignment of error in appellant's brief is waived. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4256-4261; Dec. Dig. 1078.*] 2. JUDGMENT (8 18*)-PLEADINGS TO SUSTAIN -CONTEST OF WILL. In a will contest insufficient pleading of undue influence does not affect a judgment overthrowing the will, where want of testamentary capacity is pleaded and sufficiently found. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 34-37; Dec. Dig. § 18.*] 3 WILLS (333*)-CONTESTS - FINDINGS CONSISTENCY. show that it was executed when testator was of sound mind, was erroneous as fixing the bur den of proof on proponent. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 101-110; Dec. Dig. § 52.*] 11. EVIDENCE (§ 67*)—PRESUMPTIONS-CONTINUANCE OF CONDITIONS. Rev. Codes, § 7962, subd. 32, providing that a thing once proved to exist is presumed to continue as long as is usual with things of that nature, applies only to conditions which from their nature must continue for some appreciable length of time. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 87, 88, 103; Dec. Dig. § 67.*] 12. EVIDENCE ($ 67*)-PRESUMPTIONS-CONTINUANCE OF INSANITY. Under Rev. Codes, § 7962, subd. 32, providing that a thing once proved to exist is presumed to continue, etc., lunacy or insanity of a general, habitual, or permanent nature, once shown to exist, is presumed to continue until the presumption is overthrown; but the preFindings in a will contest of want of tes-sumption does not apply to cases of intermittent tamentary capacity and of undue influence are or occasional insanity. inconsistent, since in a legal sense exercise of undue influence implies testamentary capacity. [Ed. Note. For other cases, see Wills, Cent. Dig. 788; Dec. Dig. § 333.*] 4. WILLS ($_333*)-CONTESTS-INCONSISTENT FINDINGS EFFECT. In a will contest, inconsistency between findings of want of testamentary capacity and of undue influence does not invalidate the judgment for contestant if either finding be supported by the evidence and substantial error was not committed affecting it. [Ed. Note.-For other cases, see Wills, Cent. Dig. 788; Dec. Dig. § 333.*] Cent. Dig. § 87; Dec. Dig. § 67;* Insane Per[Ed. Note.-For other cases. see Evidence, sons, Cent. Dig. § 6.] 13. WILLS (§ 53*)—MENTAL CAPACITY-PREVIOUS CONDITION-MATERIALITY. If testator was of sound mind when he executed his will, his previous and subsequent condition is immaterial on an issue of his mental capacity. Dig. § 120; Dec. Dig. § 53.*] 14. WILLS (8 288*)-CONTESTS-BURDEN OF In a will contest on proof of proper formal 5. WILLS (§ 55*)-MENTAL CAPACITY-EVI-execution of the will, and that testator was of DENCE-SUFFICIENCY. sound and disposing mind, the burden falls on contestant throughout to establish by a preponderance of evidence the facts upon which he relies. Evidence held to sustain a finding of lack of mental capacity. PROVINCE OF JURY [Ed. Note. For other cases, see Wills, Cent. Dig. 88 137-161; Dec. Dig. § 55.*] 6. TRIAL (§ 139*) WEIGHT OF TESTIMONY. The weight of the testimony was for the jury. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 332; Dec. Dig. § 139.*] 7. TRIAL ( 140*)-PROVINCE OF JURY-CREDIBILITY OF WITNESSES. The credibility of witnesses was for the jury. [Ed. Note.-For other cases, see Trial, Cent. Dig. 334; Dec. Dig. § 140.*] 8. WILLS ( 324*)-UNDUE INFLUENCE-JURY QUESTION. Whether a contestee exercised undue influence over testator held, under the evidence, a jury question. [Ed. Note.-For other cases, see Wills, Cent. Dig. 769; Dec. Dig. § 324.*] 9. WILLS ($330*)-CONTESTS-INSTRUCTIONS -MENTAL CAPACITY. In a will contest, an instruction that all persons are of sound mind who are neither idiots, nor lunatics, nor affected with insanity, was not erroneous as measuring the mental capacity required to make a valid will. [Ed. Note. For other cases, see Wills, Cent. Dig. $$ 779-781; Dec. Dig. § 330.*] 10. WILLS (§ 52*) - CONTESTS BURDEN OF PROOF-EXISTENCE OF INSANITY. In a will contest, an instruction that, where testator is shown to have been insane before and after executing his will, proponent is bound to [Ed. Note. For other cases, see Wills, Dec. Dig. § 288.*] 15. EVIDENCE ($ 553*)-EXPERT TESTIMONYHYPOTHETICAL QUESTIONS. A hypothetical question reciting a fact not shown by the evidence is improper. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2369-2374; Dec. Dig. § 553.*] 16. DEPOSITIONS ($ 99*)-USE IN ANOTHER PROCEEDING-ADMISSIBILITY. Under Rev. Codes, § 8010, providing that a deposition once taken may be read by either party in any other action between the same parties upon the same subject, a deposition taken in proceedings to appoint a guardian for one claimed to be insane is not admissible in a subsequent contest of his will. [Ed. Note. For other cases, see Depositions, Cent. Dig. §§ 288-296; Dec. Dig. § 99.*] Appeal from District Court, Lewis and Clark County; J. Miller Smith, Judge. we have taken of the case, the integrity of the judgment is in nowise affected. The allegation of want of testamentary capacity contained in the first ground of opposition is conceded to be, and is, sufficient to support the judgment, and no serious contention is made that the finding in response to the issue tendered thereon is not sufficient. the district court of Lewis and Clark coun- pleading in point of law, yet, under the view ty asking for an order admitting to probate a paper purporting to be the last will and testament of Edward J. Murphy, deceased, and to have been executed at Portland, Or., on December 12, 1908. The paper bears the signature of the deceased, attested by two witnesses pursuant to the form prescribed by the statute. On January 8, 1910, Mary Murphy, plaintiff, the mother of the deceased, filed her written opposition to the probate, alleging, in substance: (1) That, at the time of the execution of the paper, Edward J. Murphy was insane and wholly lacking in mental capacity to make testamentary disposition of his property, and that the pretended will was not and is not his will; and (2) that the said instrument, if executed at all by the said Murphy, was procured to be executed by undue influence on the part of the defendant. Upon these allegations there was issue by answer. Upon a trial had to a jury, the following findings were returned: "(1) Was the deceased, Edward J. Murphy, competent to make a last will and testament at the time of the signing of the instrument offered for probate as his will? Answer: No. "(2) Was the mind of the deceased, Edward J. Murphy, at the time of the execution of the instrument offered for probate as his will, free from the undue influence of the defendant, Anna E. Nett? Answer: No." The court entered its judgment thereon, rejecting the will and declaring that the deceased died intestate. The defendant has appealed from the judgment and an order denying her motion for a new trial. The principal contention is that the evidence is insufficient to justify the findings. Before proceeding to examine the evidence, however, we may properly notice briefly some suggestions made by counsel for appellant touching the sufficiency of the allegations of fact by plaintiff, showing undue influence, and alleged inconsistency in the findings. [1] It is suggested that the ultimate facts showing how undue influence was exerted upon the mind of the deceased are not alleged, and hence that this ground of plaintiff's opposition is vulnerable to a general demur rer. We understand that this suggestion carries with it the further suggestion that this ground of opposition is insufficient to sustain a judgment. We do not question the propriety of the rule invoked by counsel (In re Gharky, 57 Cal. 279; In re Sheppard's Estate, 149 Cal. 219, 85 Pac. 312); but we find nothing in the assignments of error in the brief on this subject. Counsel are therefore not entitled to have the suggestion in this behalf considered. Hickey v. Kaufman, 34 Mont. 106, 85 Pac. 870; Delmoe v. Long, 35 Mont. 139, 88 Pac. 778; Lehane v. Butte Electric Co., 37 Mont. 564, 97 Pac. 1038; Foster v. Winstanley, 39 Mont. 314, 102 Pac. 574. [2] If it be conceded that this ground of opposition should be held insufficient as a [3] But counsel say that the two findings are inconsistent, in that the one negatives the existence of the fact found in the other; in other words, that the finding that the deceased executed the alleged will under the impulse of undue influence exerted by the defendant implied testamentary capacity. A person enfeebled in mind and body, though still retaining testamentary capacity, may be more readily swayed and influenced by those about him, than when in his normal condition; yet, in a legal sense, undue influence cannot be exerted upon a person who is so far insane or unconscious as to be destitute of testamentary capacity. Gwin v. Gwin, 5 Idaho, 271, 48 Pac. 295; Stirling v. Stirling, 64 Md. 139, 21 Atl. 273; 29 Am. & Eng. Ency. Law (2d Ed.) 104. When in this condition a person is without intelligent volition; he is for that reason not legally responsible for his acts, whether they are prompted by others or not. Undue influence imposes a restraint on the will of the testator, who, but for the restraint, would be free and responsible, so that his testamentary act is not the result of his own volition, but of the will of another. Therefore the findings involve conclusions which cannot logically stand together, and in this sense are inconsistent; yet they are not inconsistent in the sense that each requires the rendition of a different judgment and thus mutually destroy each other. This is the test by which must be determined the question whether the judgment as rendered should be allowed to stand. [4] The findings are not so intimately connected that error in the one implies error in the other. Hence, if either be supported by the evidence, and it does not appear that substantial error intervened affecting it, the other may be regarded as immaterial. Dexter v. Codman, 148 Máss. 421, 19 N. E. 517. In this case it was said: "It is a mistaken assumption that the issues as to sanity and undue influence, in a case of this kind, are necessarily so connected that error in a finding upon one of them implies error in the finding upon the other. In many cases, perhaps in most, they are very closely connected. In some the connection is slight and unimportant. Where there is a close connection, sometimes it is such that an error in relation to the former would almost certainly involve an error in regard to the latter, while an error in regard to the latter would not be likely to affect the finding upon the former. Sometimes a very important part of the evidence of undue influence is the mental condition of the testator, and sometimes the proof comes chiefly from overt acts of coer- ers, accompanied a shipment of cattle, by cive tendency. In the same case there may way of Great Falls, to Chicago. Before be evidence tending to show insane delu- reaching St. Paul he became violently insions affecting the disposition which a tes- sane. Put under the influence of narcotics tator seeks to make of his property, and evi- after his arrival at St. Paul he became betdence of undue influence which has hardly ter and proceeded to Chicago. On the way any relation to his mental peculiarity. How he again became violent. Upon his arrival far the fact that a jury has gone astray in there he was put under treatment. The dedealing with one issue shall be deemed im- fendant, who had also gone to Chicago in portant in considering a motion to set aside the meantime, took charge of him and had their findings upon another must depend upon him under restraint and treatment at differthe relations of these issues to each other ent institutions in the city for some eight in the particular case, the evidence introduc- or ten days. Thereupon, his condition not ed upon each, and any facts and circum-improving, under the advice of physicians, stances which throw light upon the nature she took him to Portland, Or., about the end or probable cause of the jury's mistake. And, finally, each issue is to be dealt with by itself, in view of the evidence, and of all that has occurred in the course of the proceedings." of October, being accompanied by her two sons, James Owens, a half-brother, and a trained nurse. During the greater part of the journey he was violent and had to be kept under restraint. He was kept in Portland in different institutions under treatment, most of the time at St. Vincent's Hospital, until March 3, 1909: At that time he was removed to a hospital in Spokane, Wash., suffering from dementia, where he remained until his death in November following. It is not controverted that for some time after he was first taken to Portland he was intermittently insane and at times not competent to attend to business. He was constantly under treatment by a physician at the hos The court should have directed the jury to omit an answer to the second interrogatory if they should answer the first in favor of the plaintiff, and vice versa. But that this course was not pursued does not necessarily require a reversal of the judgment, if either finding is justified by the evidence. Moreover, this contention, like the one first noticed, is made by way of suggestion during the course of the argument upon the sufficiency of the evidence. It is technical in character, is not based upon any special assign-pital, and all of the time, including the ment of error, nor is it pointed out wherein any prejudice was wrought by the course pursued at the trial. [5] As to the mental capacity of the deceased: It would be impossible within reasonable limits to set forth and analyze in detail the large volume of evidence introduced at the trial. We shall therefore state our conclusions upon it, particularizing those portions of it only which we think require special notice. The deceased was at the time of his death 37 years of age. His father had been addicted to the use of alcoholic liquors prior to the birth of deceased, and was quarrelsome and abusive toward the plaintiff. Because of his abusive conduct on one occasion, when the deceased was about three years old, he was struck on the head with a stick of wood. by a brother of the plaintiff. Subsequently he became insane and was confined in the asylum for the insane at Warm Springs, dying of dementia in 1907. The deceased was sober and industriously devoted himself to the business of stock raising, with the result that at the time of his death he had accumulated a considerable estate. During the year 1907 the deceased began to show some eccentricities of conduct; but these are significant only when viewed in the light of subsequent events. They were not deemed significant at that time. In August, 1908, while engaged in stacking hay, he fell from the stack sustaining a severe injury to his head. Presently he apparently recovered. months of November and December, was in charge of a nurse specially employed to attend him. The foregoing is a summary of facts about which there is not, nor can there be, any controversy upon the evidence. Nor do we think there is any substantial ground for controversy that, up to about December 1st and after some time early in 1909, the deceased was not mentally competent to attend to business of any character. The testimony as to his condition after this time, and particularly on December 12th, is conflicting. Charles Reed was an inmate of the hospital some time prior to and until December 12th. He was employed as a nurse for deceased from November 25th until December 3d. He testified: "When I first saw him [deceased], he was in an unconscious condition and in a strait-jacket lying in a cot on the floor. He was in a stupor or unconscious, and we took him that night to St. Vincent's Hospital. His condition from the 25th of November until the 3d of December, while I was attending him, was such that at times he was rational, and at other times he was unconscious, and other times he was strapped on the bed. He was in a strait-jacket several times; it was necessary to put him in a strait-jacket to keep him in bed. At times he would be delirious and moaning, and others, rational. I took an interest in him on account of him coming from Montana. I left the hospital on the 19th of December. Along about December 12th, I would say he was in a kind He used to bump his head on the floor. One and his intentions with reference to a disposition of his property. Dr. Story, the attending physician, testified: "Edward Murphy was in my charge at Portland between November 27, 1908, and the last week of February, 1909, suffering from a deranged mental condition, not affecting his consciousness, but partly his mental understanding at times. His mind became rational and resumed its ordinary action some two or three weeks in December. He had lucid intervals lasting several days at a time, during which he seemed to be very much improved, and gradually improving under these conditions; that is, we hoped he would regain his faculties completely and permanently. * * ** From the first week in December until toward Christmas, daily,when I saw him, he was rational and apparently improving. During this time he gave rational replies to all questions put to him by me. * * I considered that at most of the time, from the first week of December until just before Christmas time, he was rational and able to intelligently direct his personal and business affairs. * * * Along the second week in December he wrote a letter to his mother, the composition of which was perfect and rational." Treatment was abandoned after the end of February because the condition of the deceased became hopeless. Two physicians residing in Montana, who did not know deceased, called to express opinions based upon the facts shown in the evidence, stated that in their opinion the deceased was suffering from dementia, an in- The nurse, Anna Shannon, who was one of curable form of insanity; that, being so the attesting witnesses and who attended afflicted, he was not subject to lucid inter- him from December 1st and for two weeks vals; and hence that he was incompetent at thereafter, stated that when she was employthe time the will was executed. Both quali-ed he appeared to be at times mentally defied their opinions as to his competency on December 12th, by saying that they did not care to be understood as contradicting any statements made in this regard by the physician who attended the deceased, inasmuch as a physician who had made personal inspection and examination was better quali-dition was good. This witness was not exfied to speak as to the actual condition. Counsel for appellant insist that, notwithstanding this evidence, no other conclusion can be drawn from the evidence as a whole than that on December 12th, when the will was executed, the deceased was passing through a lucid interval which covered at least three weeks of the month of December, and that he not only fully understood the nature of his act in executing his will, but that, also, by doing it he accomplished the purpose which he had theretofore often expressed his intention to accomplish, viz., to make the defendant his sole beneficiary, subject to the condition that his mother should be given support out of his estate during her lifetime. It is true that the evidence introduced by defendant tends to show that the deceased, after his manifestations of mental derangement at St. Paul and Chicago and during the month of December, experienced lucid intervals, and that during these times he was apparently in full possession of his senses. It tends to show that he conversed with his nurse and the attendant physician at different times about his business affairs ranged, but during most of the time when she was with him he was rational; that his condition constantly improved; and that, because he conversed with her intelligently about his business and upon other subjects, she was of the opinion that his mental con amined with reference to the condition of the deceased on December 12th. Her deposition had been taken in April, 1909, to be used upon an application by defendant, then pending in the district court of Lewis and Clark county, to have herself appointed guardian of the deceased as an incapable and insane person. It appeared at the hearing that defendant, whose fitness to act as guardian was contested by the plaintiff, had theretofore assumed control of the estate and business affairs of the deceased under a power of attorney executed by him on December 5th, seven days before the execution of the will, and the special purpose of the deposition was to show that at the time of the execution of this instrument the deceased was mentally competent. Its office on that hearing was to show that deceased, at a time when he was competent to act for himself, had chosen defendant to act as his confidential agent, and hence that she was a fit person to be appointed his guardian. Except in her general statements as to the condition of the deceased during the month of December, she did not testify at all as to his condition at the date of the execution of the will. Norness of any kind, other than to execute the was she cross-examined with reference to it. power of attorney and the will. Patterson, the other attesting witness, was The theory of counsel for defendant is that examined at length. He had met the deceas- the burden of showing that at the time the ed, who had visited Portland in company will was executed the deceased was not comwith the defendant in March and May, 1908. petent was upon the plaintiff; that the eviHe seems to have been an intimate acquaint-dence introduced by her is not sufficiently ance; the intimacy having been brought substantial in character to produce moral about by the fact that, during the visit just certainty in an unprejudiced mind-in other mentioned, the defendant and deceased had words, is only slight evidence and hence occupied a suite of rooms adjoining those oc- that the findings of the jury must have been cupied by the witness. When the defendant in favor of the defendant. We concede that took deceased to Portland, the acquaintance the evidence is not as satisfactory as it was renewed; the defendant having put her might be. We agree that the right to make two sons into the school in which the witness disposition of one's property by will is a right was a teacher. He testified in detail as to guaranteed by law and is as valuable as any his observation of the deceased on the oc- other property right; that the beneficiaries casion of the several visits paid him at the under a will are entitled to protection just hospital upon the invitation of defendant, as are other property owners; that jurors from about November 25, 1908, until the lat- are often inclined to disregard the evidence ter part of the following January. During and to set aside a will upon some excuse the month of January he met the deceased found outside of the evidence, because the while walking in company with the defendant | dispositions made by the testator do not comand conversed with him. He visited the de- port with their personal notions of what is ceased at the hospital four times prior to De- just and proper; and that in all such cases cember 12th. He did not know, nor did he it is incumbent upon the court not to permit inquire, why the deceased was confined in a will to be set aside except upon substanthe hospital under the care of a physician and tial evidence tending to show that it is not nurse, except that he was told by the defend- in fact the will of the testator. In re Noyes' ant that he was there because of an injury Estate, 40 Mont. 178, 105 Pac. 1013; Schmidt received from a fall from a haystack. Hev. Schmidt, 201 Ill. 191, 66 N. E. 374; In stated definitely that on none of these visits re McDevitt's Estate, 95 Cal. 17, 30 Pac. or meetings did he observe any evidence of mental derangement of the deceased, but that he appeared just as intelligent as he was upon his visit to Portland in May, 1908, and conversed generally as intelligently as he did then. He detailed with much particularity the circumstances attending the execution of the will. There were present Anna Shannon, the nurse, and, besides himself, his wife and mother. The will, theretofore prepared -by whom the evidence does not disclose was read aloud by him to the persons there present. Thereupon the deceased said, "I think I have done the proper thing," looking interrogatively at the witness. The witness having replied, "Mr. Murphy, I think you have," the deceased said, "I think so." The instrument was then executed and attested and handed to Miss Shannon by the deceased, for safe-keeping. The testimony of two sons of the defendant who, though not present at the time of the execution of the will, saw their uncle frequently, was substantially to the same effect. 101. Yet, as pointed out by this court in Re Noyes' Estate, supra, in a will contest the finding of the trial judge or jury, as the case may be, cannot be disturbed on appeal if there is any substantial evidence to support it. As in any other case, substantial evidence tending to show lack of testamentary capacity, or any other fact invalidating a will, is sufficient to go to the jury, though it be controverted by countervailing evidence. The evidence in this case, the salient points of which have been set forth above, makes such a case. It is not controverted that the deceased became insane during the month of October, and remained so intermittently during the month of November. There is some direct evidence that of the witness Reed-that he remained in this condition well into Decem-.. ber, and that he was in an apparent stupor and in an unconscious condition on or about December 12th. Two physicians were of the opinion that he was suffering from an incurable insanity and not subject to lucid interMr. Cavanaugh, an attorney who prepar- vals. It is not controverted that in the early ed the power of attorney executed on Decem- part of the year 1909 he became permanently ber 5th, testified, in effect, that at the time insane from dementia and remained so until he questioned the deceased, particularly in his death. During all the time he was in a order to ascertain whether he fully under- hospital in charge of a nurse and under treatstood the nature of his act, and became sat- ment for mental derangement. His somewhat isfied that he did, or otherwise he would not extensive property was apparently left to the have permitted the execution of the instru- control of others. Counsel say that the eviment. dence of the witness Reed should be entirely There is not any evidence in the record disregarded, because he not only exhibited showing that the deceased ever, after his at-personal interest in the case by his manifest |