2 Foster 225 | Pa. | 1874
delivered the opinion of the court, July 2d 1874.
The jury having found in favor of this will and against the defences of mental incapacity, undue influence and fraud, we are relieved from the necessity of considering many of the alleged errors, both in the reception and rejection of evidence, and the answers to the points and the instructions of the charge, which relate exclusively to those subjects.
The principal, indeed the only matter of which, in view of the verdict of the jury, this plaintiff in error has any right to complain, is the binding direction given by the court to the jury under the whole evidence, that the residuary bequest to the plaintiff in error must be rejected as not having been legally proved as a part of the will of the testator.
The will was duly proved to have been executed in the presence of the two subscribing witnesses, but with a blank for the name of the residuary legatee. This blank was afterwards filled, and the question presented is whether the act of filling up that blank was so proved by two witüesses as to make it in law a part of the will.
There is no difficulty in regard to the rule of law upon the
The rule is a simple, intelligible one, but the difficulty in this, as it has been in other cases, is in its application. It is not easy for the mind to divest itself of the influence which facts sworn to by one witness have in corroborating the evidence of another, especially of supplying what is a mere vacuum — a failure or uncertainty of memory in another. This difficulty is well illustrated by the evidence in this case. The evidence of Mrs. Huber was direct and positive that her son, George Rise, wrote the name in the blank in the presence of the testator and by his express direction. Striking out the entire testimony of Mrs. Huber, is there sufficient evidence from other witnesses in the cause which would justify the submission of that fact to the jury ? George Rise was unable to testify that he had inserted the name by the direction of the testator or in his presence. “This name,” said he, “is my writing. I cannot tell at whose instance I put it in; was done at Greenawalt’s or Derr’s office. I know I wrote it in; can’t say when or who present. If at Derr’s office, he present; if at Greenawalt’s house, he present. If at his house, my mother present; witnessed a bond; I was called on purpose to witness the bond. I never gave a thought to the other transaction.” The only other witness present was Lydia Frantz. She could not recollect having seen George Rise there. She left after the first execution of the will. “ I think I went home to tea.” The circumstance of the execution of the bond would of course be material, but that it was done at the same time with the writing in the will depends solely upon the credibility of Mrs. Huber. Lydia Frantz does not remember it. What other circumstances then have we in the case ? There is undoubtedly evidence of repeated declarations by the testator that Mr. Derr was his residuary legatee, though some
We are of opinion, therefore, that’ the learned judge below committed no error in the binding direction which he gave to the jury to reject the residuary bequest as no part of the will of L. T. Calvin Greenawalt.
As to the contention that no separate issue was directed as to the fifth item of the will, and the jury was not, therefore, empowered to find that to be no part of the will, as perhaps may be inferred from Hoxworth v. Miller, 7 Barr 458, it is sufficient to observe that no such point was made in the court below, nor has it been specifically assigned for error here.
Judgment affirmed.