
    Kempsey vs. McGinness et al.
    
    1. Where the mental capacity of a testator la questioned, opinions of physicians are admissible though not founded upon their own personal observation of the facts of the particular case. Such opinion, however, must be predicated upon the hypothesis that the statement offtl* leged facts is true; and as it is a question for the jury to determine whether the facts are as claimed, if they find that any assumed fact, essential to the opinion expressed, does not tit ist, the opinion has no force and should be rejected by the jury.
    2. The question as to what extent and in what manner the mind of the testator was affected by the disease, or as to what was his mental condition is one of fact. But the question as to what degree of mental capacity is necessary to enable a testator to make a valid will is one of law.
    3. A witness was asked, whether the testator was “ capable of planning and executing such a paper as is here offered as a will” — whether he'was in a mental and physical condition to transact any business requiring an exercise of the judgment, the reasoning faculties, and ft consecutive continuation of thought. JB.eld, unobjectionable.
    4. Order of proof: Proponents should introduce subscribing witness, prove execution of will and make formal or prima facia proof of testator’s soundness of mind. Contestants then go fully into their case lo show testator’s incompetency. Proponents then reply, going fully into the question of testator’s competency.
    Error to Kalamazoo Circuit.
   Opinion by

Christianoy, J.

The question in this case was upon the validity of a paper claimed hy the appellees — the proponents — as the last will and testament of Thomas Patterson, deceased. The main ground upon which its validity was assailed was, that at the time it was drawn and executed the testator was not-of sound and disposing mind and memory, but that his mental faculties were so far enfeebled and overcome hy disease as to render him incapable of properly understanding his relations to others, their relative claims upon his bounty, the particulars of his property, and the nature of the dispositions made by the will- It was not claimed that he had ever exhibited any. symptoms of insanity, or any weakness of intellect,until after he was attacked with the disease of which he died, which was pneumonia or pleuro-pneumonia. This attack was some two days before the will was made, and he died on the night of the succeeding day. The will was drawn up by one Clark, in the room and in the presence of the testator, under such directions and instructions as the testator gave him at the time, which occupied from 9 to 11 o’clock A. M. of Friday. When it was executed, it was duly witnessed by Clark and bY Dr. Abbott, a physician who had been that morning called to see him ; and who saw him for.the first time during his sickness when called in to witness the execution, but remained with him a large part of the day. Another physician, Dr. Mottram, was called about the middle of the next day. These wei’e the only physicians who saw him during his sickness. They, and several unprofessional witnesses, testified fully, from their parsonal observation, as to his physical and mental condition at the respective times when they saw him, giving their opinions as to the condition or state of his mental powers, and the facts upon which their opinions were founded. No controversy arises upon the questions touching mental capacity put to any of the' witnesses testifying from their personal observation alone. But contestants offered the opinions of several physicians, who had not seen the testator during his illness, and the main questions arise upon the proper mode of conducting such an examination.

Held, 1, That it is well settled, upon authority, that upon questions of this kind the opinions of physicians are admissible, though not founded upon their own personal observation of the facts ot the particular ease; but the facts upon which the opinion is founded must be’’ stated, and the jury be left to determine whether the facts stated, as well. as the opinion based upon them, are true or false. .No question can be put to the witness which calls upon, or allows him to decide upon, the truth or falsehood of any evidence in . the case. If, therefore, there be any conflict as to such lacts, the witness; though he has heard the testimony, cannot be asked to base his opinion upon that testimony, upon the hypothesis of its truth, because, to reach his conclusion, he must necessarily pass upon the credibility of the witnesses and the weight of the evidence. In such case, the only proper mode is to state and enumerate, in the question put, the facts to be assumed, and the witness is to answer upon the assumption ■ that such facts actually existed, without attempting to decide the question of their actual- existence as facts. The jury should know just what facts are assumed, and enter into the collection or state of facts on which the witnesses’ opinions are based; and if they find that any suqh assumed fact, essential to the opinion expressed, does not, exist, the opinion has no force, and should be rejected by the jury. If one or more witnesses have stated, in the presence or hearing of the physioian, the facts observed, and the physician is asked his opinion, upon the hypothesis that all the facts so stated are true, the jury, having heard all the evidence, know what facts are assumed as the basis of his opinion. But if he has not heard all the testimony of such witnesses, and it does not definitely appear what facts he has heard, the jury cannot know upon what state of facts his opinion is based, nor whether his opinion would have been the same had he heard the whole evidence, and his opinion cannot safely be received.

Held, 2, That the question as to what extent, and in what manner, the mind of the testator was affected by the disease, or as to what was his mental condition, is one of fact. But the question as to what degree of mental capacity is necessary to enable a testator to make a valid will, is one of law, with which witnesses have nothing to do, and upon which" their opinion is immaterial, and they cannot be allowed, by their evidence, to fix the legal standard of testamentary capacity. The proper way is to put questions calling only for the opinion of the witness as to what the real state of the testator’s mind was. The form of questions put to the witnesses for their opinion in Beaubien vs. Cicott, 12 Mich., 459, is ' correct in principle, and covers the objection under consideration. The questions to whiiph objection is made were, whether, upon the assumption of facts stated, the testator was “ of sound and disposing mind and memory, so as to be able to transact business from 9 till 11 o’clock” on the day in question; and whether he “ was in a physical and mental condition to make a will.” These questions were both objectionable, upon the grounds above stated.

Held, 3, That two other questions put by contestants, upon said assumption of facts, and overruled, were not liable to such objections, viz.: 1st. Whether the testator was “ capable of planning and executing such a paper as is here offered as his will.” 2. Whether he was “ in a mental and physical condition to transact any business requiring an exercise of the judgment, the reasoning faculties, and a consecutive continuation of thought.’’

Held, 4. That the order of proof adopted on phe trial was correct, viz.: The proponents introduced the subscribing witnesses, proved the execution of the will, and made the formal or prima facie proof of' the testator’s soundness of mind, without going into the particulars of the testator’s .sickness, and rested. The contestants then went fully into their case to show the testator’s mental condition and incompeteney, and, after they had rested, the proponents offered evidence in reply, and went fully into the question of the competency of ..the testator. In this class of cases, and upon the question of mental soundness after aprima fació case has been established, the case stands the same for all purposes connected with the order of proof on that question, as if the burden of proof rested throughout on the contestants to show mental incapacity.

The testimony as to the facts of testator’s sickness and symptoms, introduced by proponents, differed essentially from that of the contestants, and each asked their experts questions upon the assumption that the facts were as testified to by their own witnesses. After the proponents had finally rested, the contestants recalled one of their own medical witnesses to obtain his opinion as to the testator’s capacity upon the assumption of facts as stated by the proponents’ witnesses.

Held, 5, That there was no error in this course of proceeding. When contestants were giving their evidence in chief, they could not be supposed to anticipate what the testimony of proponents’ witnesses would be as to the facts, and they had a right to meet and disprove the opinions expressed by proponents’ experts, based upon the hypothesis of the existence of the facts afterwards testified to, with opinions to the contrary of other experts.

Judgment below reversed, with costs, and new trial ordered-  