9 Pa. 54 | Pa. | 1848
The 6th see. of the act of the 8th April, 1833, enacts that every will shall be in writing, and unless the person making the same shall be prevented by the extremity of his sickness, shall be signed by him at the end thereof, or by some person in his presence, and by his express direction, and in all cases shall be proyed by the oaths or affirmations of two or more competent witnesses.
To constitute a valid will, it must be ordinarily proved to be the alleged will in writing, and signed by the testator. In the latter particular, it is admitted this will is deficient, as the name of the testator is not signed to the paper purporting to be his will. In order to perfect the instrument for probate, it must be proved that he was prevented from signing it himself, or by some person in his presence, and by his direction, by the extremity of his last sickness. Under the circumstances disclosed by the evidence, it becomes an important question in the cause, whether the instrument purporting
When Mr. Madder had presented the will for signing, the witness asked him whether he would sign it, and'he turned towards the witness, with a wild look, as if aroused out of a sleep. He seemed to be quite bewildered, and to have no knowledge of what they wanted with him. He was by no means capable of signing the will knowingly. Madder, the other witness, says, he did not think, from the situation he appeared to be in when they presented the will, that if he would have to go through what would make him sensible of the will, that he would have been able to sign it. He again says, he did not think he was capable of signing it understandingly, or of directing any person to sign it; at least he was not so when it was written.
It does not distinctly appear when the uncertainty, of which the witnesses speak, commenced, and that is a fact to wdiich the attention of the jury must be directed. For if a change took place in his intellect before the will was completed and ready for his signature, so as to render him incompetent fully to understand the nature and purport of the instrument, it is not such a testament as is entitled to probate. If a person dies while the instrument is in a
But to bring the case within the exceptions of the statute, strict and stringent proof ought to be required; unquestionably, none was given in this case, for if the evidence is believed, there were intervals when the testator was able, at least, to give directions to others to sign the instrument.
We see no error in the charge, or the answer to the points in relation to the gift of 100 acres, or the alleged sale of 45 acres. The instructions are correct, and the facts are properly left to the jury. Neither is there any error in the admission or rejection of evidence, except in permitting the defendant to give evidence of improvements on the property in dispute, after the controversy commenced. This was clearly erroneous, as there is no principle better than that an owner cannot be improved out of his estate. Improvements give no.equity, and evidence of them is improper, because it only serves to create prejudices in the minds of the jurors. It cannot alter the principle, that the materials were purchased before the dispute began.
Judgment reversed, and a venire de novo awarded.