APPEAL from the Circuit Court of Christian County; the Hon.
GAIL E. McWARD, Judge, presiding.
MR. JUSTICE CREBS DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 11, 1972.
The plaintiffs, John Trojcak and Garnet Griffiths, the son and daughter, respectively, of Mary Trojcak, deceased, filed a complaint contesting the legal validity of decedent's last will and testament. The case was tried before a jury and judgment was entered for plaintiffs and against defendants and the writing purporting to be the last will and testament of decedent was set aside and declared null and void. On appeal, defendants contend that the court erred in its rulings on the admissibility of certain evidence, that plaintiffs' motion in limine was improperly granted, that the trial court erred in refusing to grant defendants' post-trial motion and further erred in its instructions to the jury.
The writing in question was executed by decedent on October 3, 1962, and the decedent died on August 22, 1968. The case was presented to the jury on the sole issue of whether decedent had the requisite mental capacity to execute the will in question. Plaintiffs' case consisted of the testimony of a number of lay witnesses who were, for the most part, lifelong friends of the testator and of one doctor who had been examining and treating decedent prior to the execution of the will, all of whom gave their opinion concerning decedent's mental capacity. On appeal defendants have raised several issues concerning the admissibility of much of this testimony. Of prime consideration, in our view, is the contention that the court erred in allowing several witnesses to express an opinion as to whether the testator had, on the day of execution, the mental capacity to or was capable of making a will.
Dennis Walk, a neighbor of testator who had known her for approximately 35 years and had had several occasions to see and converse with her during the summer prior to the execution of the will, was questioned concerning his opinion as to various facets of testator's testamentary capacity, and in response thereto, gave an opinion that she was incapable of appreciating the nature and extent of her property or transacting business. He was then asked the following question:
"Tell the jury, please, whether in your opinion, Mr. Walk, on October 3, 1962, Mary Trojcak had the mental capacity or ability to understand the business she was engaged in when she attempted to make a will?"
The witness gave the following answer over defendants' objection:
"She wouldn't have had the ability to make a will or sign any papers of that sort."
The next witness, Opal Neff, had known decedent for 20 years and on the basis of this association and on her observations and conversations with decedent in the summer of 1962 was questioned as to her opinion of testator's ability to understand the nature and extent of her property and transact ordinary business. The witness felt testator did not have this ability. She was then asked the following question:
"Tell the jury please whether in your opinion on October 3, 1962, Mary Trojcak had sufficient mind and memory to understand the business she was engaged in when she attempted to or did sign a document which is claimed to be her will?"
The witness gave a negative response over objection.
Helen Hayes, another of plaintiffs' witnesses testified that she had known decedent for approximately 40 years, had observed her during the summer of 1962 and was allowed to give her opinion, over objection, that on the date decedent executed the will she was not of sound mind and memory.
Doctor John Sharp also testified for plaintiffs. He had seen and treated testator in June, July and August of 1962 and had diagnosed her condition as cerebrosclerosis and senile grain syndrome disease which ailments in his opinion would entail a progressive loss of memory and were conditions which gradually worsened with no real hope of improvement. Based on this knowledge and association, the witness was asked the following question:
"Do you have an opinion as to whether or not on October 3, 1962, Mary Trojcak had the mental capacity to understand and comprehend the nature of the act of making a will, to decide upon executing a will, to understand and comprehend the nature and extent of her property, to contemplate her relationship to the material objects of her bounty and to recall and to retain in her mind these persons and facts for a sufficient time to form a ...