14 W. Va. 100 | W. Va. | 1878
delivered the opinion of the Court:
It is here insisted by counsel for appellees, that the court cannot reverse the decree, because the record does not show, that the witness answered the question propounded to him, and as the answer does not appear, the court cannot say, that the appellant was prejudiced by such answer. But the instruction given by the court is excepted to, and this Court has held in Strader v. Goff, 6 W. Va. 257, that when an instruction asserts a proposi-^ion
Does this instruction assert an erroneous proposition ? Upon the trial of an issue iiwolving the mental capacity of the testator, or grantor, may the declarations of
In many other cases objections have been made to the introduction of such evidence; and the question as to its admissibility expressly adjudicated.
In Comstock v. Hadlyme, Eccl. Society, 8 Conn. 254, it was held, that when declarations of the testatrix, tending to show importunity and undue 111111101100, made about the time of executing the will, were given in evidence ; such declarations were admissible only to show the testatrix^ state of mind, and not to prove the facts stated. Kane v. Kinne et al., 9 Conn. 102.
In Davis’s Appeal from Probate, 29 Conn. 399, on
In Rambler v. Tryon, 7 Serg. & R. 90, in which Avas a contest as to the validity of a will on the ground of incapacity of the testator, it was held, that the declaration of the supposed testator, made in the absence of his Avife, the devisee, of the importunity used by his Avife and his father-in-law to procure the Avill to be made, Avere admissible. Duncan, J., in delivering the opinion of the court said : “The declaration of the testator, that his Avife and father-in-laAV plagued him to go to Lebanon, that they Avanted him to give her all, or he Avould have no rest, that he did not Avant to go to Lebanon; this Avould be evidence of Aveakness of mind, operated upon by excessive and undue importunity. It forms no objection to it, that these murmurs of a weak mind were made in the absence of the devisee. We should be surprised to hear, that they Avere made in the presence of that devisee, an importunate and teasing wife. There often Avill be influence used in procuring a avíII ; but this can be no reason to set it aside; but undue importunity, plaguing a weak man, giving him no rest, until he would give all, are circumstances to be considered by a jury, in connection with proof of imbecility of understanding denoting a man so void of reason, as-that he is incapable of managing or disposing of his estate. Irish v. Smith. 8 Serg. & R. 573.
In Moritz v. Brough, 16 Serg. & R. 403, it Avas held, , that, to set aside a Avill duly executed by a man of competent understanding, evidence is not admissible of declarations made by him, that he intended differently, and
In McTaggart v. Thompson, 14 Penn. St. 149 it is held, that declarations of a testator, though made after the execution of his will, are admissible as evidence of imbecility of mind. The declaration of the testator in this ease was, that he had ruined his family, and that he had been deceived and imposed on by persons, who procured him to make his will.
In Chess v. Chess et al., 1 Pen. & Watts 32, the question was, whether the grantor was sane, when he executed a deed; and the court held, that declarations of a grantor, made subsequently to the execution of a deed, cannot be, given in evidence to invalidate the deed; but when the question to be determined by the jury is, whether the grantor was sane, or insane, at and about the time the deed was executed, it is competent to give in evidence his declarations made soon after the execution of the deed, for the purpose of proving imbecility of mind.
In delivering the opinion of the court in this case Smith, judge, used this language : “The insanity of the grantor was alleged on one side, and denied on the other ; and the jury were called to say, whether William Chess was sane, or insane, on the 14th of February, 1823, (the date of the deed.) If under such circumstances, I was required to decide upon the sanity, or insanity of a person, I know not how I could do so, unless I was permitted to judge from his conversations, declarations and
In Robinson ex’r v. Hutchinson, 26 Vt. 38, it was held, that the declarations of the testator, made about the time of the execution of the will, tending to show importunity and undue influence, and also to show the state of mind of the testator, are admissible.
In Boylan v. Meeker, 4 Dutch. 274, it was held that “the conduct and declarations of the testator, both before and after he executed the will, are competent evidence to show his want of capacity, at the time will the was exc-
In Reel v. Reel, 1 Hawks 248, the competency of the testator was involved in the issue; Henderson, Judge, in delivering the opinion of the court, said: “To our minds, to reject the declaration of the only person having a vested interest, and who was interested to declare the truth, whoso fiat gave existence to the will, and whose fiat could destroy, and in doing the one, or the other, could interfere with the rights of no one, involves almost an absurdity, and (with duo deference to the opinion of those, who have decided to the contrary, we say it,) they are received, not upon the ground of their being a part of the res gestie, for whether they accompany an act or not, whether made long before, or long after making the will, is entirely immaterial as to their competency; these circumstances only go to their weight or credit with the tribunal, which is to try the fact, and the same tribunal is also to decide, whether the declarations contain the truth, or are deceptive in order to delude expectants and procure peace.”
In Howell v. Barden, 3 Dev. 442, evidence was offered “to prove declarations of the supposed testator, made after the execution of the proposed will, tending to show, that it was obtained by fraud and undue influence of the principal legatee.” The evidence was rejected by the court below. The Supremo Court held, that the evidence was admissible.
In Tunison v. Tunison, 4 Bradf. 138, it was held that “Avhere there is room for' doubting the strength of the testator’s capacity, and for suspecting improper influences brought to bear on his volition, his previous declarations as to his testamentary intentions may be received in evidence; but they diminish in importance as the grade of capacity increases, and have no value whatever, Avhen the mind is sound and vigorous.”
In Waterman v. Whitney, 1 Kernan 157, there is an able review of the decisions on this subject by Judge Seldon. In this case evidence had been given to the jury tending to show, that the mind and memory of the testator, who had been a man of vigorous intellect, were
After reviewing a number of decisions Judge Seldon says on page 164 : “These cases must, I think, be sufficient to establish the position, that declarations of 'a testator, made either before or after the execution of the will, are not competent evidence to impeach itsjvalidity, on the ground of fraud, duress, imposition or other like cause.” * * * “The difference is certainly very obvious between receiving the declarations of a testator, to prove a distinct external fact, suchas duress or fraud for instance, and as evidence merely of the mental condition of the testator. In the former case, it is mere hcai’say, and liable to all the objections, to which the mere declarations of a .third person are subject; while in the latter it is the most direct and appropriate species of evidence. Questions of mental capacity and undue influence belong in this respect to the same class; because, as is said by Jarman in his work on Wills. ‘The amount of undue influence, which will be sufficient to invalidate a will, must of course vary with the strength, or weakness of the mind of the testator/ 1 Jar-man on Wills 36. So the mental strength and condition
To the same effect is Neel et al. v. Potter et al., .40 Penn. St. 483, and Norris v. Sheppard, 20 Penn. St. 475, in which Black, Chief Justice, announced the opinion of the court. In the last mentioned case was an issue devis-avitvelnon. The learned Chief Justice says with his usual vigor : “ft is doubtless true, that a testamentary writing, duly and solemnly made by a man ot sound mind and memory, cannot be defeated by proof, that his intentions were different at a'previous time. But when one disposes of all his property to amere stranger, and evidence is produced to show, that he was insane, when he did it, the contesting party may prove, that his relatives . were near to him in affection as well as blood, and thus increase the improbability, that the will was the result of his deliberative judgment. How can this be proved except by his acts and declarations ? There may be cases where such declarations would amount to very little, as where they express an intention in favor of persons not at all, or very remotely, connected with the testator, and the will gives the property to an intimate friend. But it might also happen, that evidence of this kind would carry irresistible conviction with it. For instance suppose the testator to have a wife and children, for whose sake he has labored industriously all his life, declaring his purpose to leave them all his fortune down to the moment, when the delirium of a fatal illness clouds his understanding, or fills it with delusions, .and then for the first time, and without any assignable reason, he expresses his intention to disinherit the objects of his natural loye, and give his property to one, whom he has never seen before. . I do not say, that this is a case like
Jt >vas held by this court in Thompson et al. v. Updegraff et al., 3 W, Va. 629, that the declarations oí a testator are admissible in evidence for the purpose of showing the state, condition and operations of his mind, at the time of the execution of the will.
The following cases have been relied upon as being opposed to the admission of such testimony. Provis & Rowe v. Reed, 5 Bing. 435; Jackson v. Kniffen, 2 Johns. 31; Smith v. Fenner, 1 Gall. C. C. 170; Stevens et nx. v. Vancleve, 4 Wash. C. C. 262; and we may add as coming within the same class of decisions, Gibson v. Gibson, 24 Mo. 227; Cawthorn v. Haynes, Id. 236.
Provis & Rowe v. Reed cannot be regarded as an authority against the admission of the declarations of the testator. In that case the record does not show, that the capacity of the testator to maleo the will ivas at all in issue; and the declarations themselves offered in evidence sIioav, that the testator understood perfectly what he was doing, ¡when he executed the will. The declarations offered were, “Tom Reed” the defendant “has been trying to get my property, but neither he, nor his -, shall have it. Scott drew up a paper, and they got me to sign it; but never fear, I know, that it is not worth to Reed one farthing.” “My land goes to my own family. Peggy” (one of the defendants) “remember the land is yours; if I don’t live to make my will, when I am dead see that you are righted.”
Best, Chief Justice, said, “It has been insisted, that declarations of the testator were admissible in evidence to show, that the will, he had executed, was not valid; but no case has been cited in support of such a position ; and wo shall not for the first time establish a doctrine, which would render useless the precaution of making a will, for if such evidence were admissible, some witness
In this case was the attempt made by proof of the subsequent declarations of a testator, who was admitted to be of sound mind, when the will was executed, to set aside his will as invalid. This was manifestly improper testimony according to reason' and all the authorities.
In Jackson v. Kniffen, evidence was offered to prove, that when the testator executed the will, he was under duress; that he executed the will, because he feared he would be murdered, if he refused. The question of mental capacity, or undue influence, was not involved in the case; and the evidence was properly rejected, as we have seen from the authorities.
In Smith v. Fenner, 1 Gall., evidence of the declaration of the testator was offered in evidence to show, that the will was procured by fraud, circumvention and imposition. The mental capacity of the testator was not in issue, for in declaring the evidence inadmissible Story, Justice, said : “Especially in the present case, the^ evidence is inadmissible, inasmuch as the testator lived in the full possession of his mind for many years after the execution of the will, and it is in proof, that it remained completely in his own' possession during all that timo, and was found in his possession at his death.”
In Stevens et ux. v. Vancleve, 4 Wash. C. C., one of the questions, and a very important one in the case, was, “whether the testator, at the time the will was executed, was of sound and disposing mind and memory.” During the trial the defendant’s counsel offered evidence to prove, that the uniform declarations of the testator in favor of the defendant from the year 1802 had been consistent with the disposition made of his property by the will of 1817. “This was objected to as being inapplicable to the only question in .the case: the competency of the testator to make his will; the counsel for the plaintiff
The evidence was therefore held inadmissible. At the time this ruling was made, in 1822, but two of the cases cited above had been decided, to-wit, Rambler v. Tryon and Reel v. Reel, and both of them in 1821. All ¿lie authorities agree with Judge Washington, that such evidence is inadmissible, either to control the construe-
In Gibson v. Gibson, 24 Mo. 227, the declaration offered was: “He never made the will; that if he had signed it, they had got him drunk and made him do it, for he had no recollection of it.” The evidence was rejected and Leonard, J., in delivering the opinion of the court said : “Whenever the declarations can be considered as falling within the first class of cases, they are of course admissible, upon the common doctrine of the res gestae; and the only question then is, whether they are so connected with the main fact to be proved, as to fall within the rule. They are also clearly admissible when the condition of the testator’s mind is the point of contention, or it becomes material to show the state of his affections; and they are then received as external manifestations of his mental condition, and not as evidence ol the truth of the facts he states. * * * These declarations, considered as mere verbal facts, it is very obvious, furnish no evidence whatever of imbecility of mind, which is a fact always embodied in the question of undue influence. Indeed they were not offered for any such purpose, but as competent evidence to be submitted to the jury of the fact substantially asserted in them, that ‘the testator was so drunk, when he signed the will, as to be unconscious of what he did;’ and for this purpose they were, we think, clearly inadmissible.”
In Cawthorn v. Haynes, Id. 236, the opinion is pronounced by the same Judge, and the former case relied upon, although the cases are entirely different. The
Leonard, Judge, said: “We first remark, that although this ease has been argued before us, as if the validity of the will had been really contested on the ground oí the testator’s mental incapacity, or of undue influence exerted over him, yet no evidence whatever was given at the trial, or even offered, tending to establish either fact, except the rejected declarations, * * *. The defendant gave no evidence at all, except the previous deposition of one of the subscribing witnesses for the purpose of contradicting him ; but offered to prove that the testator, on various occasions before the date of the will, and afterwards up to the time of his death, stated, that the legatees mentioned in the will ‘should never have any of his property,’ and also on several occasions after-wards, that ‘lie had no will.’ * * * And in the present case, we are clearly of opinion that the declared purpose of the testator, that these children should not share his bounty, made before, and repeated after, the date of the will, wholly unsupported as it was by any evidence whatever of incapacity or undue influence, would not have justified the jury, in point of law, in finding against the will. We do not mean to say merely, that under the circumstances the evidence was insufficient, in point of fact, to produce conviction ; but to declare, as a matter of law, that the declarations, alón e and unsupported by other facts, did not furnish any legal -.evidence whatever of the testator’s alleged incapacity, or of undue influence, and of course their exclusion furnishes no ground whatever for reversing the judgment.”
This case draws a distinction, not made by any of the cases we have cited, thatijis, where there is testimony outside of the declarations of the testator when mental capacity, or undue influence exerted over him, is in
Upon a full review of the authorities, our conclusion is, that the declarations of a testator, or grantor, made either before, or after the execution of the instrument, are admissible evidence, where the issue involves the mental capacity of the grantor, or testator, at the time the instrument was executed, or undue influence exerted upon him at that time. The object of the testimony is to throw light upon such issue; and it may often do so.. The light so shed upon the issue by such evidence may bo bright or dim according to circumstances. If there is strong evidence of the testator’s incapacity at the time the instrument was executed, and his declarations show, that his will is in accord with his previous declarations, those declarations might go far to enable a jury to find the truth of the matter; and so, if the contents of the will are unreasonable and contrary to the intent of the testator as shown by his declarations. They arc not received to show the truth of what is contained in the declarations themselves, but to show the condition of the testator’s mind, at the time the deed, or will, was executed. It has been repeatedly hold, and it was so held in two recent cases in this Court, Cranmer v. Anderson, 11 W. Va. 562 and Jarrett v. Jarrett, Id. 584, that the condition of the grantor’s r mind, both before and after the execution of the deed, is proper to be considered in determining what was his mental condition, at the time the deed was executed. This being true, how could his mental condition be shown, if his conversations and declarations, the best indices of the mind, are to bo disregarded ?
In Davis’s Appeal, supi'a, on the trial the appellants offered to prove by one Asher Chapman, that long before. the testator executed the will, and before there was any pretence, that his mind had become impaired, or unsound, he had declared, that “none of his property should ever go into the family of Lcdyard Park.” The evidence was objected to and rejected. The will .gave a largo portion of his «property to Led yard Park and to his lamily. On appeal, ITimnan, J., in speaking of the remoteness of the declaration said : “ In our opinion the correct course would have been to admit the declaration made by the testator, and let the jury weigli it in connection with the length of time which had elapsed since it was made, and any other circumstances, if any existed, calculated to strengthen, or weaken it. * * * The court cannot enter into an enquiry as to the attending circumstances, with a view of determining upon the admissibility of the evidence. This would bo but one mode of estimating its weight and importance, under the circumstances, which is the province of the jury alone. We think therefore, that on the ground of the exclusion of this evidence, there must be a. new trial.”
In Waterman v. Whitney, supra, Soldon J., said “It docs not follow * * that evidence of this nature is necessarily to be received, however remote it may be in point of time from the execution of the will. The object of the evidence is to show the mental state of the testator at the time, when the will was executed. Of course therefore it is admissible, only where it has a legitimate bearing upon that question; and of this the court must judge, as in every other case, where the relevancy of testimony is denied. If the judge can see,.that the evidence offered cannot justly be supposed to reflect any light upon the mental condition of the testator at the time of making the will, he has an undoubted right to exclude it. In the present case it was impossible for the judge to say this in advance of any information as to the precise period, when, and the circumstances under which, the declarations proposed to be proved were made.”
It is unnecessary hero to decide, whether declarations of the testator or grantor, made at any time however remote from the execution of the instrument, are admissible; there is nothing in the record here to show, when the declaration was made, how near to, or remote from, the execution of the deed, and if such declarations should under any circumstances be excluded, because remote from the execution of the instrument, which we do not now determine, the record here does not show, that the declarations given in evidence ought to have been excluded for any such reason; for we are not informed when such declarations were made. The court did not err in giving the instruction to the jury.
It is insisted by'appellant’s counsel in th.e argument, that if such declarations were admissible in a contest about a will, they would not be as to a deed. I can see no distinction in the two cases. The enquiry is in both cases as to the mental condition of the testator or gran tor;
It is not lieeessary in this canse however to lay down the proposition so broadly. What wc do decide in this cause is, that where a father has made a voluntary conveyance to his son of a part óf his estate, and a con-, test arises subsequent to the father’s death as to the competency of the father to make the deed, and as to whether undue influence was exerted over him by the grantor, to induce him to make it, that the declarations of the grantor, both before and after the execution of the deed, are admissible, the same as if the contest was about the execution of a will, devising the same estate to the son:
The last error assigned is, that the court should not have dismissed the bill as to Joseph F. Branson with costs, upon the simple recital in his answer, that he claimed no further share in liis father’s lands. The suit
We see no error in the decree complained of; and it is affirmed with costs and $30.00 damages.
Decree Affirmed.