Combs' & Hankinson's Appeal

| Pa. | Jan 24, 1884

Mr. Justice Trunkey

delivered the opinion of the court, October 6th, 1884.

The testatrix, unable to read or write, affixed her mark to her will in the presence of two subscribing witnesses. Neither of these witnesses at the time of publication had any interest in the will, and both were credible. A credible witness is one who is not disqualified to testify by mental incapacity, interest, crime, or other cause. Even if it could be said that the Act of April 26th, 1855, contemplates that the character of the witnesses for truth must be good, the attesting witnesses to this will stand unimpeached.

A corporation was the sole object of the bounty of the testatrix. Belinda Jackson was in the employ of that corporation, entitled to wages for her services, and it is contended by the appellants that, therefore, she was. interested. No effort was made to sustain this contention by precedent. B}r all authority a witness is not incompetent on the score of interest unless he has a certain, not a possible benefit in the event of the suit or in the matter in controversy; and an agent, servant or employee is a competent witness for, as well as against, his employer. Within the meaning of the statute a disinterested witness is one who has no legal interest, and a credible witness is one not disqualified to testify. Otherwise, the register or probate court would be without chart or compass to aid in determining the qualification of an attesting witness.

It is too plain for question that Mrs. Duncan had no interest in the will in controversy at the time of its execution. While living, Lucy Taylor coiild sell or give away her property, or make a will which would revoke a prior one. A person named as legatee in the prior will had no legal interest therein during the life of the maker. Then, without considering whether this will would have been valid if two of the witnesses had not subscribed their names, it is clear that prima facie the requisites of the statutes were complied with, and the will was properly admitted to probate.

In passing, it may be remarked that there is no evidence that the will was procured by fraud, duress, imposition, or undue influence. Nor is there anything in the relation which existed between the testatrix and Mrs. Duncan and Miss Cash to raise a legal presumption of undue influence over her mind. They are not recipients under the will. They had been her friends, she had entrusted them with the care of her property, they had sought to promote her comfort, and were named as legatees in her former will. Were that will unrevoked, a presumption might exist for them to overcome by evidence, if they could. But as to this, in absence of testimony that wrong was done, no wrong can be presumed.

It is hardly necessary to note the objection that the register’s jurat does not show that the witnesses were sworn. The testimony subscribed by the witnesses sets forth the requisite facts without stating that they were sworn or affirmed, but the jurat shows that the witnesses appeared before the register and were sworn; that is sufficient.

Two witnesses are necessary to prove the execution of a will, each of whom must separately depose t'o all facts necessary to complete the chain of evidence, so that if only one witness were required the will would be fully proved by the testimony of either. Hock v. Hock, 6 S. & R., 47; Derr v. Greenawalt, 76 Pa. St., 239. In Pennsylvania a will may be lawfully executed by a man or an unmarried woman without witnesses being present, and it may be proved by two witnesses who are acquainted with the handwriting of the signature of the maker. Hence, if witnesses were present at the lime of the execution, and saw the testator sign the will, and they subscribed it in bis presence, it is unnecessary that they should have known the contents, or that the testator should have declared to them that it was his will. It is essential that the will of a married woman be executed in the presence of two witnesses, but the statute does not require that they subscribe. If it be that a bequest for a charitable use is void unless tbe witnesses subscribe the will, the statute does not require that the testator shall declare to the witnesses that the instrument is bis will, or that he communicate to them its contents. Therefore, it is not essential in any case to the probate of a will, to prove more by the witnesses who were present at its execution, than the identity of the instrument, that they saw the testator subscribe or make his mark, and at the time of doing thereof he was of sound, disposing mind, memory and understanding. In Derr v. Greenawalt, supra, a blank was left for tbe name of the residuary legatee at the time the will was executed; afterwards the name was inserted, not in the handwriting of the testator, and only one witness testified that the testator directed the insertion. The proof was positive that the blank existed when the will was published, and the requisite proof by two witnesses was wanting that it was subsequently filled by direction of the testator. Had the testator inserted the name in his own handwriting, proved by two witnesses, the case would have been different. And as remarked by Justice Shakswood : “ Had there been no subscribing witness, and the will been proved by the testimony of two witnesses to the handwriting of the testator, it would perhaps have been sufficient prima facie. The .presumption may be that it was perfect whén the testator subscribed to it.”

The statute of New York makes it essential to the execution of a will that at the time the testator subscribes or acknowledges it, he shall declare it to be his last will and testament, in the presence at least of two attesting witnesses. Decisions under that statute, cited by appellants, showing that its provisions for the execution and proof of a will must be observed, have no bearing upon the construction of a statute that contains no such provision.

If the testator can neither write nor read it is not essential to the execution of the will that it be read to him in the presence of the subscribing witnesses: others may testify that lie knew the contents. Where the will of a man who could not read was proved by the three subscribing witnesses, only one of whom testified that it was read to the testator, it was held sufficient. This court remarked that generally when a man does not draw his own will, the friend or scrivener whom he employs, is the only depositary of its contents, and that inquiry by a .subscribing witness of the contents of a will would be considered a most impertinent and offensive curiosity. Wills differ from other instruments in that two witnesses are required to authenticate them'. The execution of the will being proved by two witnesses, one is sufficient to rebut the imputation of fraud. The possibility of imposing on a testator a will of the contents of which he was ignorant, might exist in the case of a blind or illiterate man, but the charge that such act was done would be repelled by the testimony of one witness, if believed, that the will was truly read to him, as well as by the testimony of one hundred. Lewis v. Lewis, 6 S. &. R., 489.

By the Act of March 27th, 1865, P. L., 88, where an executor has no interest in the subject matter in controversy, his right to compensation shall not be deemed an interest disqualifying him from being examined as any other witness. Whether or not under the Act of 1855, Miss Cash was a competen't witness to attest the will, she is competent’ under the Act of 1865 for other purposes. Though she is the executrix, she may testify that the will was drawn by the testatrix’s direction, and was read to her before she affixed her mark.' Two competent witnesses have proved that Lucy Taylor knew the contents of the will at the time it was executed, and it is immaterial whether they are subscribing witnesses.

The appellants contend that the testatrix was coerced to bequeath her property to the Home because, being an inmate, she was obliged to convey her property to the corporation, under its laws, of which the court will take judicial notice. On what principle the court can take judicial notice of the bylaws of a corporation, has not been shown. There is no testimony tending to show an attempt on the part of the corporation, to obtain a conveyance or transfer from Lucy Taylor, and the uueoutrovorted evidence is that she went to the Home as a boarder, and that no rule of the institution required a transfer or a bequest of property by a boarder.

No just complaint can be made of the refusal of the court to compel Mrs. Duncan to answer the questions set out in the third specification of error. Those which were not manifestly impertinent had been substantially answered in response to other questions, and some repeatedly. Had the witness been heard in court, doubtless the cross-examination would have been very much shorter. A court would hardly have permitted so much repetition and latitude.

We are not convinced that the Orphans’ Court erred in the consideration of the testimony or in refusing an issue. Many witnesses are now of opinion that Lucy Taylor was insane for a number of years before she went to the Home, but opinions are not evidence unless based on proper foundation. With the exception of Dr. Gardner, the witnesses were not experts or physicians, and they detail the facts within their knowledge. It is well said by the learned Judge of the Orphans’ Court:'

These opinions as to the incapacity of the testatrix found no expression while she lived, and the acts of the witnesses furnish most emphatic contradictions of them.” None of the relatives or friends believed it necessary to have an inquisition to the end that a committee should be appointed to take care of her person or estate. On the day of her funeral the appellants were informed that she had willed her property to the Home, within a month thereafter they had procured a copy of the will, and not till eighteen months after receiving the copy did they begin this contest. The letter of George H. Combs, dated November 24th, 1879, sent to Lucy Taylor while she was living at the Home, does not indicate that he thought her imbecile or insane; nor does his letter to Mrs. Duncan, dated March I9fch, 1880. Whatever was her mental condition before she went to the Home, it likely continued till near the time of her death. She was aged, and possibly was seriously affected by her surroundings, even to the extent of giving her the appearance of insanity while she lived with Mr. Hankinson and with Mrs. Higgins. After she left the house of Mr. Hankinson and before going to the house of Mrs. Higgins, she boarded a year with Mrs. Cooper, who testified that, “ being old and feeble she was not allowed to go out alone,” but not that she was insane or mentally imbecile. While at the Home, until she had paralysis, the evidence is conclusive that she was sane. The testimony of this fact, adduced by the appellees, is not overcome by any sufficient testimony to warrant other conclusion. Upon the testimony of Rev. William S. Heaton, called by the appellants in rebuttal, she had testamentary capacity. True, he is of opinion that she was insane, and incapable of making a will, and directly contradicts numerous statements of other witnesses, in answer to-leading questions; but he is not an expert, and his conversations with her, which he details, show that she was sane, if not so cultured as himself. He first knew her on July 18th, 1879, at the house of Mrs. Higgins, and afterwards visited , her frequently at the Home, giving her instruction of a religious nature, and conversing with her mostly upon religious subjects.

We are of opinion that upon the whole testimony, if the cause should be tried by jury, a verdict against the will ought not to be permitted to stand. The will was executed when the testatrix was living at the Home, at a time when there is not evidence to warrant a verdict that she was insane; and the second, third and fourth specifications of cause for an issue have no support in the evidence.

Decree affirmed, and appeal dismissed at the costs of the appellants.