164 Pa. 73 | Pa. | 1894
Opinion by
These appeals were argued from one paper-book. They are so woven together in the proceedings in the court below, that the questions in dispute will be disposed of in one opinion.
Personal imputations on the motives of a judge, who has rendered an adverse judgment, alleged to be erroneous, add nothing to the force of counsel’s argument; they often tend to render obscure meritorious objections, and afford us no help in passing on the real contention. Our judgments must be founded on something of more substance than suspected motives.
A brief statement of the material facts, as gathered from this record, will largely aid in an intelligent judgment.
On February 20, 1890, Ruth B. Armor, the testatrix, being then about ninety years of age, made her will. She was possessed of a very considerable estate, which she divided among her five children, one of whom, a daughter, Eliza, was married to David M. Butts. The shares of all, except Mrs. Butts, were bequeathed to David M. Butts as trustee; he was also appointed sole executor. In less than a year after the execution of the will, the testatrix died. The legatees, except Mrs.' Butts, contested the will, on the ground that the testatrix was of unsound mind at the date of its execution, and that she had been induced to make it by the undue influence of her son-in-law, D. M. Butts. Much testimony was taken, and, after due consideration, the orphans’ court directed an issue to be tried in the common pleas, to determine whether the testatrix was possessed of sufficient mental capacity to execute the will, but refused an issue to determine whether it had been procured by undue influence. From so much of the decree as refused an issue on the question of undue influence, the contestants appealed to this court [Armor’s Estate, 154 Pa. 517]. We, being of opinion that the court erred in refusing an issue on the second ques
At the close of the testimony, the court made the following reservation: “ Whether there is any evidence upon which defendants are entitled to recover.” The- verdict was recorded September 4,1893, and on the 11th, on motion of plaintiff’s counsel, a rule for a new trial was awarded, reasons to be filed Avithin ten days; same day, on motion of same counsel, rule Avas aAvarded upon defendants to show cause why judgment should not be entered on verdict for plaintiffs, non obstante veredicto, on point reserved. On September 16th following, reasons for a new trial were filed. On October 13, 1893, in vacation, Avithout consultation with his associates, Judge Fubst, in an opinion filed, entered judgment on the point reseiwed for the plaintiff. On October 19, 1893, Judges Riley and Faulkner, without consultation with Judge Fubst, filed an opinion overruling the judgment on the reserved point entered by him, and directed judgment to be entered thereon for defendants, and further directed the prothonotary to certify this judgment to the orphans’ court. Then, on October 30,1893, Judge Fubst filed a supplementary opinion, in which he makes the following decree: “We hold the rule as matter of law, that the evidence in the cause on part of contestants is wholly insufficient in law to submit to the jury upon either issue, and Ave further hold, upon all the evidence in the cause, that the evidence is insufficient to sustain a verdict against the will of Ruth B. Armor, deceased. And we therefore, in accordance therewith, modify our former judgment entered on the 13th of October instant, and in lieu thereof, and as a substitute there
This decree the prothonotary of the common pleas was directed to certify to the orphans’ court, which, on being done, Judge Furst, as president judge of that court, made this decree : “ And now, October 30, 1893, the court of common pleas having certified to us upon the trial of said issue, heretofore awarded by the president judge of this court, that the evidence upon the trial thereof was wholly insufficient in law to submit to the jury upon either issue, and that, under all the evidence, no verdict against the will can be sustained; and thereupon, having certified to us their opinion with the request that we vacate said order for an issue, we do now, in accordance therewith, vacate and annul our former order and decree, awarding an issue devisavit vel non, and the same is hereby vacated and set aside, and the clerk is directed to certify this decree to.the prothonotary, to be entered by him in the record of said suit, and issue is refused.”
Then, on February 22, 1894, the associate judges, by formal decree, with reasons therefor, overruled the last decree of the president judge.
The appeals raise this question : Whether the decrees and judgments of the president judge, or those of his associates, are the judgments of the court ?
It will be noticed we have but one verdict, but upon it are entered four judgments, practically, two sustaining the will and two against it. They cannot all be affirmed; whether any one of them can be is the question we are forced to consider. It is a rare record in the judicial observation of this court; so rare that we recall no other case resembling it.
The personal antipathies engendered by litigation between the merqbers of this family seem to have promoted hopeless discord in the tribunal appointed by law to settle strife. The court apparently resolved itself into a sort of debating society, each member maintaining his side of the question by an opinion filed of record, with the not unusual result of this kind of debate, the further it proceeded the more remote was the end
The first noticeable error appéaring on this record, is the point reserved, when viewed in connection with the evidence and charge. In the commencement of these proceedings, before the first trial in this court, the president judge was of the opinion that there was evideiicé for the consideration of a jury as to testamentary capacity, and he awarded an issue to try that disputed fact; but he refused an issue on the question of undue influence, and on that refusal was based the first appeal. On review here, we concurred with him as to the issue awarded, but thought tire evidence on both questions so blended, that the issue should be directed for trial of both. The question then, as to testamentary capacity, went before the jury, from the judgment of the court below and of this- court, on the preliminary evidence. After a full trial in presence of the court and jury, with every opportunity of cross-examination and judgment of credibility from appearance and manner of witnesses, the court submitted the evidence on this instruction:
The evidence of incapacity adverted to'here, is not nearly all the evidence adduced by contestants; there was evidence tending to show that this old lady had become as a little child; collected and played with bright colored pieces of paper; cared only for the plays of little children; had no choice as to food; would escape into the garden, and there act like a mischievous child, destroying the growing vegetables as well- as her clothes; that her memory was almost wholfy gone. What was noticed by the learned judge, was called to the attention of the jury, and they were instructed that they were to determine the question in connection with the other facts in the case. It is true, there was much evidence tending to contra-
The learned judge, in his opinion in this case, does not attempt to show that the inference of unsound mind might not have been drawn from some of the facts, if proven to the satisfaction of the jury, but. his opinion is, that, in view of all the facts, and the evidence of plaintiff, such inference was not warranted. At the very most, his opinion only shows that, from the weight of the evidence, the jury ought to have found a different verdict.
His answer is not responsive to his point reserved. That is, “ whether there is any evidence on which defendants are entitled to recover ? ” The answer is, that the evidence was insufficient to warrant the jury in inferring that the testatrix was lacking in testamentary capacity. Whether warranted or unwarranted, the jury believed defendants’ witnesses, and, on the facts testified to by them, drew the inference, which the court, instructed them they might draw, if they thought it was warranted. 'The court cannot now draw an opposite one, and neg
But the judgment on the reserved point necessarily involves another error. The evidence on both questions, that of mental capacity and undue influence, was submitted to the "jury, and at the close of the charge they were instructed thus: “ And in drawing out your verdict, if you say you find for the defendants, then write out in full what you mean by that, whether you find she was not of sound mind and memory, or that she was acting under undue influence.” The verdict was for defendants, and that she was not of sound mind. But not a word is said as to the question of undue influence. It is assumed, the silence of the jury is a finding for plaintiff. This may or may not have been the case; there is nothing in the charge; or upon the record, to show that the jury passed on that question; the probability is they did not. They were instructed to find generally, and then, if for defendants, state one or other of the grounds in support of the finding, but not instructed to return their findings on both grounds. It is not an unwarranted assumption that the jury, when they retired to deliberate, in considering the testimony as to mental capacity, found for defendants ; in the absence of instructions to return findings on both questions, they went no further, and at once made up their verdict. In so doing, they literally obeyed the instructions of the court. If this was the case, then the reserved point, and the judgment upon it, did not embrace the issue, and for that reason the judgment entered by the learned president judge could not be sustained.
■ But, for reasons affecting all the judgments, both those entered- by the president judge, and by his associates, none of them can stand. This trial was had in a court of common pleas composed of three judges, the president and two associates. All were present on the bench during the trial. It is not necessary to discuss their powers and functions as individual members of the court at the trial. It is not going too falto assume that there was consultation of the court at the close of the evidence, its weight and significance discussed, and that the charge, which submitted it to the consideration of the jury, was the charge of the court, and not the charge of a single member of it. After the rendition of the verdict, the record
• A court is a “ tribunal established for the public administration of justice, and composed of one or more judges, who sit for that purpose at fixed times and places, attended by proper officers:” Burrill’s Law Dictionary; Mason v. Woerner, 18 Mo. 570. Section 4, article v, of the constitution, declares, that, “ Until otherwise directed by law, the courts of common pleas shall continue as at present established.”
Section 5: “ The office of" associate judge not learned in the law is abolished in counties forming separate districts.” Centre county does not form a separate district, therefore the courts are constituted by the act of 1834: “ The president and associate judges of the court of common pleas, or any two of them, or the president judge in the absence of his associates, shall have power to hold the said courts, and to hold and determine all causes, matters and things cognizable therein according to the constitution, usages and laws of this commonwealth.” The court which took cognizance of this cause at the trial, was composed of the three judges, the president and two associates, and they sat at the time and place appointed by law for that, purpose. Then, after adjournment, they confmenced to act, not as a court in eonsultatipn over a grave question involving-both fact and law, but as individuals. Without consultation-with the associates, the president judge proceeded to his home, and there determined, there was no evidence of mental incapacity to submit to the jury, although, presumptively, the court composed of himself and the associates, had agreed there was such evidence, and so charged the.jury. Then, without consultation with the associates, he filed in vacation this opinion as the judgment of the court.
The two associates, thereupon, at no court' of which the president judge was a member, and without consultation with him, overruled this judginent, and filed one to the contrary. And so, this antagonistic action between members of the same court, not sitting as a court or in consultation as a court, went on. It is not to the point, to argue that, under the law of 1834, any two members of the common pleas, or the president judge in the absence of his associates, had power to hold the said courts, and therefore the judgments entered by, the president judge,
There never was, so far as this record shows, a common pleas court held by the president in the absence of his associates, at which his judgment, as the act of the court, was made up or entered ; there never was a common pleas court held by the two associates in the absence of the president, for the adjudication of questions arising out of this trial. There was a special court held, for the trial of special causes, at which the president judge of another. district presided, and the two associates sat with him. But this was not, in any reasonable intent of the act, a court of common pleas, at which two of the judges in the absence of the president judge, could take up and dispose of a question growing out of a former trial at which all three sat.
We have no doubt that it is not onljr convenient, but entirely regular and lawful, for the members of a court, or a majority of them, to concur in a judgment during their sitting, and then confide the expression of opinion to the president to be filed in vacation as the judgment of the court. Or the preparation of the opinion may be made by one judge in vacation, to be filed at the next sitting of the court, and the other members may then concur, although they did not know of the reasons or the judgment, until it was about to be filed. But this is the judgment of the court, because entered by the court. But not one of these judgments was entered by the court of common pleas; they were only the individual opinions of the members of that court, and all of them, as judgments, must for that reason be set aside.
This leaves the only motion which goes to the merits of this
The judgments entered in common pleas October 13th, 1893, October 19th, 1893, October 30th,' 1893-, and the decree of the orphans’ court of October 30th, 1893, annulling and vacating the issue directed to the common pleas; and the judgment entered in -common pleas, 22d of Feburary, 1894, are reversed and set aside, at costs of appellees in each judgment appealed from respectively.