dissenting.
I take issue with the insertion of the standard of reasonableness in the trial court’s instruction on insane delusion. A person may, unreasonably in the minds of other people, leave her or his property in a manner that others would not without suffering an insane delusion. The danger, of course, is that in the future a testator’s orders as to the disposition of his or her property may be invalidated because a jury does not believe the testator disposed of his property “reasonably.” We have not heretofore held that an unreasonable belief or a belief based on unreasonable evidence is the equivalent of an insane delusion.1
The issue is not insignificant. Presumably there is a difference between insanity and ignorance. A person in 1937 might have believed that a handkerchief was an adequate contraceptive. From what we are told about the ignorance particularly of young people today concerning these matters, it might even be true today. A person who believed that a handkerchief was an adequate contraceptive would surely hold an unreasonable belief, but would we necessarily conclude it was an insane delusion? Yet there is evidence in the record that John J. did use a handkerchief as a contraceptive while having intercourse with Bessie. If he believed that John H. was not his son because he used the handkerchief as a contraceptive, is that not sufficient evidence to remove his belief from the realm of an insane delusion? Such a belief is surely born of ignorance and may, as the trial court instructed, “have no reasonable foundation in fact.” But it would not be an insane delusion. It is for just such a reason that the interjection of a reasonableness standard into the definition of insane delusion is so fraught with danger.
Secondly, I believe the jury should be instructed that there is a presumption of sanity on the part of the testator. That is clearly the law in this State. E.g., Kingdon v. Sybrant, 158 N.W.2d 863 (N.D.1968). Although, in our legal minds, we might deduce that a presumption of the testator’s sanity exists when the trial court has instructed that the will contestant has the burden of establishing by a greater weight of the evidence that the testator suffered under an insane delusion, I am not convinced a jury of lay people will necessarily so infer. Because it is so clearly the law of this State that a presumption does exist, I believe Feldner was entitled to a specific instruction to that effect.
Finally, I do not agree with the majority that an instruction that the evidence must establish that “the testator divides up his property in a way which, except for that delusion, he would not have done” is the equivalent of an instruction that competent adults may dispose of their property as they wish without regard to the desires of prospective beneficiaries or the views of juries or courts. The majority concludes that the instruction given would allow the jury to find that in his right mind John J. would have disinherited John H. if John H. were his son. I do not agree; to the contrary, I believe it permits a jury to conclude, almost as a matter of law, that if *769John H. were John J.’s son, John J. would not disinherit him. As observed in my concurring opinion in Flaherty v. Feldner, 419 N.W.2d 908, 911 (N.D.1988) (VandeWalle, J., concurring in the result), there are parents who readily acknowledge their offspring but who disinherit those offspring.
The jury should not be left to infer from the instruction that it might find that if in his right mind John J. would have disinherited John H., even if John H. were his son. Feldner was entitled to an affirmative instruction as to the right of competent testators to dispose of their property as they desire. Furthermore, the instruction given is, I believe, confusing. It also permitted the jury to conclude that mentally competent persons would leave their property to their children and that because John J. did not leave his property to John H. he must have been incompetent. If testators are to be assured their estates will be distributed as they have legally dictated, the right to do so should not be compromised by instructions which leave the jury room to substitute its judgment as to how the property should be distributed for that of the testators.
The trial court was apparently concerned that both parties be permitted to advocate their positions without undue direction from the trial court. But our law clearly gives the testator the “edge” and the trial court should instruct accordingly. I am not anxious to set aside a jury verdict because of an erroneous instruction.2 Jurors often arrive at what appear to be correct verdicts notwithstanding the instructions. However, I believe we should reverse the judgment in this instance. If we do not, I fear the instructions will become the model for future cases. Too often an instruction that barely passes appellate scrutiny is held out as the model for that reason when a more appropriate instruction would be preferable.
I would reverse the judgment and remand for a new trial at which the appropriate instructions could be given.
GIERKE, J., concurs.. The majority opinion concludes that the trial court fairly stated that an insane delusion must be the "product of the imagination" when it instructed that a delusion must be a belief "without any evidence from which a sane man could draw the conclusion ..." But that is not the whole instruction and that portion of the instruction is at best confusing insofar as it reads:
"It is a belief which is not based upon reasonable evidence, or at least without any evidence from which a sane man could draw the conclusion which form the delusion.” [Emphasis supplied.]
. My primary concern is with the instructions. However, if, as John H.’s expert witness testified, it was necessary for Emma to have suffered from an insane delusion and passed it to her son, John J., there is scant evidence in the record that Emma so suffered unless the jury is to conclude that any mother who attempts to come between her son and his wife so suffers. There is obvious evidence of Emma’s dominance but little explanation for John J.'s continued denial of his parental status after her death. There is no evidence, expert or otherwise, that equates dominance of a married son by his mother with an insane delusion. Although the majority states that as a legal matter John H. only had to prove an insane delusion on the part of John J., that is disingenuous when the expert witness John H. relies upon for that proof espouses a theory that begins with an insane delusion on the part of Emma which she passes on to her son.