
    
      In re HALLITT’S ESTATE. BUCK v. HALLITT.
    1. Appeal and Error — Judgment Notwithstanding Verdict — Evidence.
    On appeal from judgment for proponents, contrary to jury’s verdict for contestants, the evidence presented must be considered in the light most favorable to contestants.
    2. Wills — Mental Competency — Presumptions — Burden op Proof.
    Since mental competency is presumed by statute, the burden of establishing lack of testamentary capacity is upon the contestants (2 Comp. Laws 1929, § 14212).
    3. Same — Mental Competency — Evidence.
    Expert medical testimony that testator was not competent to make a will at the time he made it, whether in answer to hypothetical questions or based on observations of testator made months before the will was made, is opinion evidence merely, and as against otherwise uneontroverted testimony that testator conferred with his attorney about his will and made a clear statement as to what he wanted, the property he owned and its disposal, is entitled to be given no weight whatever.
    References for Points in Headnotes
    
       57 Am. Jur., Wills, § 89.
    
       Prima facie ease for proponent in will contest as shifting burden of proof. 76 A.L.R. 373.
    
       57 Am. Jur., Wills, §§ 141, 142.
    
       Admissibility of evidence other than testimony of subscribing witnesses to prove due execution of will, or testamentary capacity. 63 A.L.R. 1195, 1204.
    
       57 Am. Jur., Wills, § 64.
    
       57 Am. Jur., Wills, § 149.
    
      4. Same — Test of Mental Competency.
    A testator must, at the time of making Ms will, have sufficient mentality to enable him to know what property he possesses and of which he is making a testamentary disposition, to consider and know who are the natural objects of his bounty, and to understand what the disposition is that he is making of his property by his will.
    5. Same — Mental Competency — Evidence.
    Where 86-year-old testator is not shown to have failed to understand and comprehend sufficiently the property he possessed and of which he was making testamentary disposition, or that he did not have in his mind at the time, the natural objects of his bounty, judgment upholding will leaving bulk of his estate to his sister and only $10 to each of his three sons is affirmed.
    Appeal from G-enesee; Gradóla (Paul V.), J.
    Submitted April 6, 1949.
    (Docket No. 20, Calendar No. 44,345.)
    Decided May 18, 1949.
    Rehearing denied June 29, 1949.
    In the matter of the estate of James T. Hallitt, deceased, Joseph R. Joseph presented the last will of James T. Hallitt, deceased, for probate. Objections were filed thereto by sons of decedent. Contest certified to circuit court. Verdict for contestants. Judgment for proponents notwithstanding verdict. Contestants appeal.
    Affirmed.
    
      Guy W. Selby and George Jos.eph, for proponents.
    
      Transue & Hood, for contestants.
   Busnell, J.

This will contest, which was certified to the circuit court, resulted in a jury verdict for contestants Ralph, Russell and Sprague Hallitt, sons of James T. Hallitt, deceased. A judgment for proponents Anna Buck (Hallitt’s sister) and Joseph R. Joseph, the executor of Hallitt’s will, was ordered by the trial judge, from which judgment contestants have appealed.

Hallitt died on February 4, 1947, at the age of 86, leaving a last will and testament which was executed at Flint, Michigan on June 11, 1946. The will contains bequests of $10 each to the contestants; the remainder of Hallitt’s estate, in the words of his will, was given — “to my beloved sister, Anna Buck, now residing in Toronto, Ontario, and in case she should predecease me, then to the heirs of her body.”

It is claimed that when Hallitt executed his will he was “mentally incompetent and incapable of making and executing a will, and he was not of sound mind and memory at the time;” and that the evidence produced was sufficient to sustain the verdict of the jury; hence, the trial judge erred in granting the judgment non obstanúe veredicto.

The record shows that on several occasions during the last years of his life, Hallitt failed to recognize his immediate relatives, and that he occasionally became lost while attempting, to visit their homes. It also appears that in his latter days he became irritable toward his children and grandchildren over what might be deemed inconsequential matters.

Three doctors testified in behalf of contestants. Dr. Kenneth R. Sandy examined Hallitt in 1938 and diagnosed his condition at that time as “senile dementia on the basis of arteriosclerosis.” Because he did not see Hallitt thereafter he declined to express an opinion as to his mental competency on June 11, 1946, the date the will was executed; but he did say that senile dementia is a progressive disease and that oiae of its symptoms is the belligerent and antagonistic attitude of the patient toward those around him.

Doctor Clayton K. Stroup of Flint, Michigan, who attended Hallitt on December 12, 1946, after the will was executed and 'following Hallitt’s fall on October 19, 1946, into a pit in a service station at Toronto, declined to say.what his mental condition would have been on June 11, 1946, but he did testify that the arteriosclerotic condition at the time of his examination indicated that he would have had periods of dementia and derangement 6 months prior thereto, and that a change in one’s attitude toward one’s children frequently accompanies arteriosclerosis and senile dementia.

Dr. Bussell DeJong, a neurologist connected with the department of neurology of the University of Michigan, had never examined Hallitt. His response to a hypothetical question was that in his opinion the facts stated in that question described a typical story of senile dementia, and that one so afflicted would not be aware of the significance of what he was doing nor of the natural objects of his bounty. With respect to Hallitt’s affection for his sister, rather than for his sons, he said that patients afflicted with this disease “go back to their childhood days and they talk much more, feel much closer to the previous generation than to the present generation.” Other witnesses had testified that Hallitt’s conversation frequently reverted to events and occurrences of his early years.

There is also testimony in the record with respect to failure on the part of Hallitt to keep himself presentable, and also of some physical limitations on his control of his bodily functions.

On the other hand, the record shows that he bought his own clothes, took care of his own money and bank accounts, made frequent trips alone to the home of his son, Sprague, in Huron county and to his sister in Toronto. He also knew the number of shares of stock he owned, when the dividends were payable, and he collected and deposited them in his own bank account. When he conferred with his attorney about his will he made a clear statement as to what he wanted, the property he owned and its disposal.

Because the judgment for proponents was entered contrary to the verdict of the jury, for contestants, the evidence presented must be considered in the light most favorable to contestants. In re Frazee’s Estate, 307 Mich. 404; and In re Johnson’s Estate, 308 Mich. 366. Nevertheless, the burden of establishing lack of testamentary capacity is upon the contestants, because mental competency is presumed by statute. 3 Comp. Laws 1929, § 14212 (4 Comp. Laws 1948, § 617.58 [Stat. Ann. § 27.907]).

In Re Aylward’s Estate, 243 Mich. 9, the headnote reads:

“Expert medical testimony that testatrix was not competent to make a will at the time she made it, whether in answer to hypothetical questions or based on observations of testatrix made months before the will was made, is opinion evidence merely, and, as against the otherwise uncontroverted testimony that testatrix dictated her will, and that she alone directed the forming of each of its provisions, is entitled to be given no weight whatever.”

And in Re Walker’s Estate, 270 Mich. 33, we said:

“The test of mental capacity to make a testamentary disposition of one’s property has been stated many times by this Court. In general the requisite is that the testator must, at the time of making his will, have sufficient mentality to enable him to know what property he possesses and of which he is making a testamentary disposition, to consider and know who are the natural objects of his bounty, and to understand what the disposition is that he is making of his property by his will.”

This record does not contain any evidence showing, or from which it can fairly be inferred, that Hallitt at the time he made his will did not understand and comprehend sufficiently the property he possessed and of which he was making testamentary disposition, or that he did not have in his mind at the time the natural objects of his bounty. On the contrary, it appears from the testimony that he fully understood the disposition he was making of his property. We shall not repeat here what we have said recently in Re Nickel’s Estate, 321 Mich. 519, or in other authorities such as In re Ferguson’s Estate, 239 Mich. 616; In re Aylward’s Estate, supra; In re Alvord’s Estate, 258 Mich. 497; In re Getchell’s Estate, 295 Mich. 681; In re Grow’s Estate, 299 Mich. 133; In re Johnson’s Estate, 308 Mich. 366; and In re Thayer’s Estate, 309 Mich. 473.

The judgment is affirmed, with costs to appellees.

Sharpe, C. J., and Boyles, Reid, North, Butzel, and Carr, JJ., concurred.

Dethmers, J., did not sit.  