CLAIMANTS UPON THE BOUNTY OF A TESTATOR.

Court of Appeals for Fairfield County.

#### Carl Brown et al v. Ray Lane.*

Decided May 4, 1921.

*Wills*— Degree *of Mentality Required to Execute*— Not *as Great as to Malee a Contract or Transact Business*— Instructions *to Jury*— Per*sons of the Blood are the Natural Objects of a Testato) s Bounty.*

The testator separated from his wife thirty years before his death. A son less than one year of age remained with the mother. By his will the testator left $1,000 of his $13,000 to this son whom he had rarely seen and hardly knew. The remainder of his estate was given to his physician and a woman friend. The jury set the will aside on the ground of lack of mental capacity.

*Held:*That the language used by the court' in instructing the jury was not calculated to create the belief that a higher standard of mentality is required in disposing of property to persons not of the blood, than when it is given to relatives; nor were they led to believe that claimants upon the bounty of another are limited to blood relatives; and the finding of the jury as to testator’s mental capacity is allowed to stand.

*M. A. Daugherty*and W. If. *Mwrtin,*for plaintiffs in error.

*L. G. Sübaugh*and *Geo. W. Yorys,*contra.

*

Motion to certify record in this case overruled by the Supreme Court, October 26, 1921,

Houck, J.

Error to the judgment of the common pleas court of Fairfield county.

Action to set aside the will and codicil of James E. Lane, deceased, by his only son and heir at law, Ray Lane, the defendant in error. The jury found against said will and codicil, and set same aside, upon the ground of lack of mental capacity"in testator at the time of their execution. The trial judge overruled a motion for a new trial, and entered a judgment on the verdict.

*306Question: Is there error in the record prejudicial to the rights of the plaintiffs in error?

The following errors are relied upon for a reversal of the judgment 'below:

1. Error in the general charge of the trial judge to the jury.

2. Because the court refused to give, in charge to the jury before argument, special written request No. 3.

3. There was no evidence to sustain the verdict of the jury.

The conceded facts are as follows:—

The testator died February 2d, 1917, at the age of 52 years. The will was executed December 27, 1916, and the codicil January 5, 1917. A summary of the will and codicil is:

Will.

Item 1. Payment of debts, funeral expenses and erection of family monument costing not less than $2,000.

Item 2. To Nola Thompson, as a reward for her long and faithful service to the testator, lot No.. 132, in Bremen, Ohio, and lot No. 38, in Purvis Addition to the same village.

Item 3. To Dr. Carl Brown, for his care and attention and great friendship to the testator, lot No. 50 in Bremen, Ohio.

Item 4. To Ray Lane, testator’s son, $1,000.

Item 5. Remainder of his estate to Dr. Carl Brown, who is also named executor in Item 6.

CODIOIX;.

Item 1. For maintenance of burial lot, $500.

Item 2. Carl Hemler, $500.

The gross estate real and personal of the testator is about $15,-. 000.

Lot No. 38, devised to Nola Thompson, is of the value of $1,000 and lot No. 132 of the value of $2,800.

Lot No. 50, devised to Dr. Carl Brown, is.of the value of $2,000.

The debts, funeral expenses, and collateral inheritance taxes, amount to about $2,000, leaving the net estate about $13,000.

Of this net estate, under the will Miss Thompson will receive about $3,800, and Dr. Carl Brown approximately $5,000. because the legacies in money aggregate $4,000, which are to be paid before the remainder passes to him.

*307The testator and his wife separated about 30 years before his death, when their only child, Ray Lane, the defendant in error, was less than one year of age; they were living near Commercial Point, in Pickaway county, at the time of the separation.

The testator lived in Bremen, and conducted a bakery business there for seven or eight years prior to his death, and his estate was accumulated there in that business. His whereabouts from the time of the separation between him and his wife until he became a citizen of Bremen does not appear.

Learned counsel for the plaintiffs in error insist that there is prejudicial error in the general charge of the trial judge in the following instruction to the jury:

> “The testator is empowered, under the law, to make a will, and to will his property to those who have natural claims upon his bounty; but if he does so he must possess sufficient mentality and sufficient intellectuality to know what he is doing, who' are his relatives, the nature and extent of his property, and the relationship that he bears to those who have natural claims upon his bounty.”

It is urged that this instruction was intended to and did cause the jury to believe that a higher standard of mentality is required of a testator who makes disposition of his property to others than those related to him by blood.

We do not agree with counsel in this claim. There is nothing in the language of the instruction complained of that warrants or justifies, the construction placed thereon by counsel. A fair interpretation of the language leads us to conclude that it does not, directly nor inferentially, so state. ■

This is not all, for the court did not stop at the above instruction, but continued, as follows:

> “Now, gentlemen of the jury, if he conveyed his property fo a stranger, or if he conveyed it in unequal portions with reference to those who have no natural claims upon his bounty, you cannot return a verdict setting aside the will for that reason, but you are entitled to take that fact, if it be a fact, into consideration with all the other evidence in the case as to whether he possessed sufficient mentality at the time he executed this will and codicil to execute them. This will is in evidence-and it is here for all purposes. You have a right to examine this will *308and codicil in all their terms and take into consideration all the facts and circumstances and all the evidence produced in the case in considering whether it is a just or unjust will, whether it is fair or unfair.

> “If you believe, again, that the will is unfair, that it is unjust, that it is inequitable, you cannot set it aside upon those grounds; but you will take its fairness or unfairness, its equitableness or inequitableness into consideration along with the other facts and circumstances in determining whether or not the testator at the time he executed the will and codicil would have so executed it if he had been of sound mind.”

A careful reading of this latter instruction clearly shows that the court fully and clearly explained to the jury the legal force and effect of a testator’s conveying by will his property, not only to his relations but to those who are not related to him by-blood, as the same might reflect upon his mental capacity to do so at the time of the execution of his will; also as to the justness or unjustness, its equitableness or inequitableness; thus in clear, forceful and direct language telling the jury that such could only be taken into consideration along with all the other proven facts and circumstances in the case, in determining whether or not the testator at the time he executed the will and codicil was of sound mind and memory, and capable in law of making a will at the time of its execution.

Counsel strongly urge that the court prejudicially erred when it charged the jury:

> “The mental capacity required as a minimum in our state for the purpose of making a will is sufficient when the following characteristics exist:

> “ (1) To understand the nature of the business in which he is engaged.

> “ (2) To comprehend generally the nature and extent of his property.

> “(3) To hold in his mind the names and identity of those who have natural claims upon his bounty.

> “(4) To be able to appreciate his' relations to such persons.”

"We think the rule here laid down is sound, and the mere fact that the trial judge used the word “minimum” does not make the charge erroneous. The court did properly state the *309necessary requirements to be possessed by a testator to make a will, and that being true, the mere fact that the court stated that it was the minimum requirement, and at the same time clearly defined and explained to the jury what in law is conceded to be such, is in nowise prejudicial to the rights of plaintiffs in error.

We find the rule to be well settled that a testator may have capacity to make a will, although not able to make contracts or manage his estate, or engage in and conduct large business interests. He may not have sufficient mind and vigor of intellect to transact business generally, or to make and understand all the parts of a business transaction, or to analyze a contract, and yet be fully competent and qualified to dispose of his property by will. The question is whether the testator’s mind and memory are sufficiently sound to enable him to understand the business in which he is engaged at the time he executes his will; to bear in mind the property he attempts to dispose of; to remember the objects of his 'bounty, and to plan or frame a scheme of disposition. The sum and substance of this rule was given in the instruction complained of, and we are of the opinion that it ,is the rule applicable to the minimum requirement of mentality necessary to make a valid will in Ohio. The complaint of plaintiffs in error in this respect is not well taken.

It will further be observed that if there could be any possible ground for claiming that said instruction, standing alone, might be misleading or erroneous, it is certainly cleared up and made plain to the jury by the instruction immediately following the above, which is as follows:

> “That standard of capacity is the minimum required of men and women and all persons in Ohio who may make a will. The law presumes that men are sane rather than insane. So in the case at bar the burden is on the plaintiff under the rule of law I have heretofore given you to establish that one or more or all of these requirements were lacking and absent in James E. Lane at the time that he executed this will on the 27th day of December, 1916, and the codicil perhaps on the 5th day of January, 1917. ■* * * Persons who have natural claims on the bounty of another are those who are his' blood relations. The testator must realize that by the laws of civilization those who *310are united to him by ties of blood have the first claim upon his consideration. Be these relations near or remote, the testator is always chargeable with the degree of mental capacity sufficient to appreciate the fact that those united to him by ties of blood have natural claims upon his bounty. Those who are associated with him in business or other affairs have no natural claim upon his bounty at law. * * * The testator is empowered under the law to make a will and to will his property to those who have no natural claims upon his bounty, but if he does so, he must possess sufficient mentality and sufficient intellectuality to know what he is doing, who are his relations, the nature and extent of his property, and the relationship that he bears to those who have natural claims upon his bounty.”

It is urged that the trial court erred when it said to the jury: “Persons who have natural claims on the bounty of another ace those who are his blood relations.” Counsel say: “We respectfully urge upon the court that natural claims are not limited to children and blood relations; the term fairly and properly includes all those who, under the circumstances in which testator finds himself, or sanely believes himself to be, are reasonably entitled to consideration of his estate. Business associates and friends may, and would in this case particularly, have such natural and reasonable claims on James E. Lane’s property. The persons who cared for the testator; such as the doctor who prolonged his life, and his employees who had assisted him in the accumulation of his property, had greater natural claims upon his bounty than the son who was almost a stranger to him.”

In the interpretation and construction of words and phrasers, if they are of themselves precise, clear and unambiguous, then no more can be necessary than to expound them in their natural and ordinary sense; and in such oases the • words themselves best declare their meaning. Applying this rule to ascertain the meaning, force and effect in law of the language in question, we do not find this language ambiguous, and we are unable to reach the same construction as counsel for plaintiffs in error.

The question is, what is the common, usual and natural meaning conveyed by the expression or inquiry, “Who are the persons who have natural claims on the bounty of another *1”*It *311may be that an employee, a faithful servant, or a family physician, who have rendered some service to a person, are the objects of his bounty; but can it be claimed with any force or effect that they have any natural claims on his bounty?

The law, where one dies intestate, fixes the relatives of the decedent as the natural claimants of his bounty or estate. Then upon what course of reasoning it can be claimed that if one dies testate his relatives are not the natural objects of his bounty, we are unable to understand. True, a testator has a right by will, if he possesses the mental and other necessary qualifications, to dispose of his property as he likes, and to those, whether they be related tó him by blood or not.

Natural is an adjective and modifies claims. Then who are the natural claimants of a testator’s bounty? We are of the opinion that it is those related by consanguinity — blood relationship. It seems to us that this is the clear and ordinary interpretation, and is and should be the generally accepted meaning of the aforesaid expression, and we find and so hold.

We cite the following decisions in support of the finding thus made:

> “A testator’s perception of his relation to the persons who should be objects of his bounty does not mean that he should know and recognize every distant relative who is entitled to inherit from him under the existing canons of descent. The definition refers to near relations of a testator, those who are the ‘natural objects of his bounty.’ Cousins, to the second, third, and fourth degree of propinquity, are not included in the definition of ‘natural objects of testator’s bounty.’ ” *Matter of McCarty’s Will,*141 App. Div., 816, 126 N. Y. Supp., 699, 702; *In re Campbell’s Will,*136 N. Y. Supp., 1086, 1096-1097.

> “But in any event, be these relations near or remote, the testator is always chargeable with a degree of mental capacity sufficient to appreciate the fact that those united to him by the ties of blood *have*natural claims upon his bounty. These natural claims can of course be ignored; only, however, by those who, while fully understanding, yet choose to disregard them.” *Niemes*v. *Niemes,*97 Ohio State, 157.

It will not do to simply take excerpts from a charge and insist that same is erroneous and prejudicial, but the whole charge with reference to the suject matter claimed as being erroneous *312must be examined, and all that the charge contains upon such subject must be inquired into and reviewed. And if from the entire charge it shows prejudicial error, then a reversal should be entered.

After a careful reading and examination of the trial judge’s charge in this case we find same to fully and completely cover every evidential fact established by the evidence, the issues raised in the case, and the law applicable to same.

We are fully convinced that our Supreme Court has passed upon the identical question here raised, and we are 'but following it and the rule of law as found in the fifth syllabus of the case' of *Ohio and Indiana Torpedo Company*v. *Fishburn et al.*as appears in the 61 Ohio State, page 609,, which reads:

> *“A*charge to a jury is to be construed as a whole, and if, construing the whole charge, the law of the case appears to have been correctly given to the jury, and in a way that will enable them to understand the rules of law which they are to apply to the evidence before them, the charge will not be held erroneous simply because every condition to a recovery or a defense is not embraced in each paragraph, and the paragraph excepted to is not in itself calculated to mislead.”

We find that the general charge of the trial judge follows the law as laid down in the case of *Niemes*v. *Niemes, supra,*which is the last word of our Supreme Court upon the question of the mental capacity required to make a will.

Did the court err in refusing to give to the jury, before argument, written charge No. 3, as requested by the defendants below, which reads:

> “You are instructed that a man who is competent and free from restraint has a right to dispose of his estate in any way he may deem best. He is not required to make an equitable will, and he may, if he choose, entirely exclude his children.”

This request is taken from the language used in the opinion in the case of *Wilson*v. *Wilson,*14 C. C. (N. 8.), page 241.

It must be apparent to counsel, as well as to the court, that there are many things said by reviewing courts, in their opinions, that are sound in law, but which nevertheless would be and are improper if adopted as instructions to a jury. The *313right of parties to have proper written instructions given to a jury before argument enables counsel to present in argument to the jury the facts in 'accordance with the law, as embodied in such written instructions so given. Mere abstract propositions of law, where not applicable to the issues raised, the proven facts and the rules of law necessary for their determination, need not be given. Such requests to charge must also be complete, and state the law correctly and clearly within themselves, and 'be pertinent to at least one of the issues to be determined in the case. Applying this rule to the request in question, we find and hold that it does not come within the rule herein laid down, for the following reasons:

(a) The same is indefinite and uncertain, and is incomplete. It assumes that the maker of the will is *competent,*and this is the *one*question of fact which the jury is to determine. This is the *crux*of the case, and the very purpose for which the jury was impaneled, namely, .to find by its verdict whether or not James E. Lane was of sound mind and memory.

(b) It further assumes that the man making the will was of proper age, and not under duress.

(c) The request to charge as a whole does not come within the rule, and therefore all must fall. .

Lastly, does the record disclose any evidence to sustain the verdict of the jury?

We have read with much care all of the evidence as contained in the record, and we have no hesitency in saying that we must and do answer this question in the affirmative.

The jury having passed upon the weight and sufficiency of the evidence, and having found against the plaintiffs in error, it is not within the province of a reviewing court to disturb this finding, unless we find from all the facts and circumstances, as disclosed in the record, that there is no evidence supporting the verdict, or that the verdict is manifestly against the weight of the evidence. And not so finding in either instance, we must and do affirm the judgment of the common pleas court. ■ '

Judgment affirmed.

Patterson, J., and Shields, J., concur.