Davies v. Morris

17 Pa. 205 | Pa. | 1851

The opinion of the court was delivered by

Lewis, J.

LThis was an issue to try the validity of a paper purporting to be the will of Benjamin Morris. The instrument in dispute contained a devise of a “ dwelling-house to the Welsh Congregation, or Independent Church of Minersville; the property not to be sold, but the rents to be paid by my executors to the official members of said church, to the end of being appropriated to the use of said church.” Roderick R. Williams, the pastor, and John L. Davies, a member of the congregation, interested in establishing the paper, were offered as witnesses to prove the execution, but were rejected by the court on the ground of interest. In general, the members 'of pecuniary or moneyed institutions, such as banks, insurance and manufacturing companies, and the like, are not witnesses in favor of such corporations, because they are directly interested in the result. The property in controversy would go to swell their profits, and thus increase the dividends payable to the members offered as witnesses. But societies for religious purposes stand upon a different footing. No dividends are payable to the members of such corporations. They do not make merchandise of their religion, for the pecuniary profit of the members. Donations, bequests, and devises to them may increase their ability to pay their debts, but this does not create such a direct interest as to disqualify a member. The liability of members of religious societies is in general voluntary, and the rule is so in the case before us. It does not appear that the society is unable, independent of the property involved in this suit, to pay its debts; nor have we any assurance that the property, if recovered, would be applied to existing liabilities. There is nothing to prevent its appropriation to new erections, or new expenditures, “for the use of the church.” Professor Greenleaf, in his work on Evidence, gives the rule correctly. In section 333, he states that “members of charitable and religious societies, having no personal and private interest in the property holden by the corporation, are competent witnesses in any suit in which the corporation is a party.” As to what are called quasi corporations, or the civil divisions of the country, where the question to be decided involves an increase or diminution of the corporate means or funds, so as to add to or lighten the burden of taxation upon the individual, the English Courts have holden that his mere liability to be rated, constitutes an interest too remote and contingent to operate as the ground of exclusion, although it is said to be otherwise if he be actually rated. 4 T. R. 17,19, 5 Id. 664, 667. 6 Id. 157. In this country, Avhere no one can be rated against his consent for the support of religion, there can be no ground for excluding members of churches or societies for worship, upon the ground of interest.

By the probate taken before the Register, it appears that the two witnesses state that they saw the testator “sign, seal, publish, pronounce, and declare,” &e. As the name of the testator appears to be signed to the instrument, the court cannot say, on inspection, that the witnesses did not see the testator sign it. The addition of a “mark” does not necessarily import against the testimony of the witnesses, that the testator did not sign his name. There may have been an inadvertence in the statement of the witnesses, or they may have considered the affixing of a mark as a signing of the will. It is certain, however, that there was nothing upon the face of the paper, thus admitted to probate, which raised the question respecting the effect of a mark, Avhen used instead cf a signature, in the execution of a will; or which authorized the court to reject the probate as not even prima facie evidence.

The instrument, after probate, ought to have been received in evidence, subject to explanation; and the witnesses offered ought to have been admitted. When the whole case shall be presented to the court and jury, a proper decision can be made upon the validity of the instrument in dispute..

Judgment reversed and venire de novo awarded.