Dawson v. Waggaman, 23 App. D.C. 428

Dawson v. Waggaman

23 App. D.C. 428 | D.C. Cir. | 1904

Mr. Justice Morris

delivered the opinion of the Court:

By the assignments of error in this case, two questions are raised: (1) Whether the will of Bridget Gleason was admissible in evidence either as a declaration of intention by her or as part ¡¡of the res gestae in connection with the possession of the notes in controversy by the appellants; (2) whether the testimony of Julia Dawson, one of the appellants, was admissible to be given :in the case.

1. The determination of the first of these questions does not seem to be difficult. In their application to the present case there is really no discrepancy in the authorities — at all events, no such discrepancy as the Supreme Court of the United States, in the case of Throckmorton v. Holt, 180 U. S. 553, 45 L. ed. *433664, 21 Sup. Ct. Rep. 474, has pointed out as existing. In that ease the Supreme Court held that declarations of a testator, either before or after the date of an alleged will, are inadmissible as evidence in favor of or against the validity of the will, unless made near enough to the time of its execution to become part of the res gestee. But the exception is admitted to be the law as much as the general rule, and that case, and the authorities cited in it to which the court gives its approval, sanctions the doctrine that declarations made by a testator near enough to the time of the execution of a will to be regarded as part of the res gestee of its execution are admissible in evidence to show his state of mind and his intention in the disposal of his property. See Lane v. Moore, 151 Mass. 89, 21 Am. St. Rep. 430, 23 N. E. 828.

Now a donaition causa mortis, or the giving of a gift in contemplation of impending death, is in the nature of a testamentary disposition, and in this regard v'ould be governed by the same rules of law that obtain in reference to wills. The declara^" tions of the testator at or about the time of making it, or at the time of its being alleged to have been made, are admissible, if they constitute part of the res gestee and tend to show the intention or mental condition of the donor. TTpon this principle the appellants themselves were permitted to show what took place at and about the time of the alleged gift, although there was some ground for objection to the competency of the witness who testified in regard to it. So likewise the declarations of the deceased to her spiritual adviser in regard to her temporal affairs were properly admitted in evidence as part of the res gestee to throw light upon the transaction. It is not claimed by the appellants that these declarations were inadmissible. Indeed, having themselves sought some such declaration from the deceased, and having induced her spiritual adviser to act as their intermediary for the purpose, they could not with any grace have objected to the testimony which he gave.

Now, in these declarations reference was made to the will, and the deceased expressed herself as perfectly content with it. By this reference and expression of affirmation of the will, that *434document was imported into the res gestee and made part of them. Even if it should be conceded that the will standing alone was executed at too remote a period from the death of the testatrix to be regarded as part of the res gestae of the present transaction, yet its explicit reaififmance by the testatrix on her death bed and in such close proximity to the occasion of this alleged gift has a very intimate bearing upon the question whether the alleged gift was actually made. We think that the will, as part of the declaration of the testatrix in her last illnesspwas properly admitted in evidence to show her intention in regard to the disposition of her property, and impliedly to disprove the theory of a donatio causa mortis from "the deceased to the appellant Julia Dawson.

2. With reference to the second question, that is, whether the testimony of one of the defendants, Julia Dawson, was admissible to prove conversations between the deceased and the defendant Charles E. Dawson, it is sufficient to say that § 1064 of the Code is too plain and explicit to allow of any controversy in this regard. The provision is a just one, and the testimony was properly excluded.

We are of opinion that the judgment in this case was right and just, and that it should be affirmed, with costs.

And it is so ordered. Affirmed.