| Pa. | Feb 8, 1875
delivered the opinion of the court, February 8th 1875.
The signature of a subscribing witness to an ordinary instrument of writing implies nothing more than that the instrument was signed by the person whose act or deed it purports to be. It is not so in the case of a subscribing witness to a will. His attestation is an assertion not only that the will was signed by the testator, but of the further fact that the testator was of sound mind when he executed it. It is said by Mr. Greenleaf, in his work on Evidence, vol. 2, § 691, that “ the attesting witnesses are regarded in the law as persons placed round the testator, in order that no fraud may be practiced upon him in the execution of the will, and to judge of his capacity.” The condition of mind of a testator, at the time of the execution of his will, is a part of the res gestae. For this reason it has been held that the declarations of a deceased subscribing witness to a will, may be given in evidence to invalidate it: Harden v. Hays, 9 Barr 151. It was, therefore, entirely competent for the defendants, upon the trial of the issue of devisavit vsl non in the court below, to ask John Baltz, a subscribing witness, upon cross-examination, the question: “ What was the condition of mind of David N. Egbert, the alleged testator, as to soundness or unsoundness, when he signed the paper,” and it was error in the learned judge to exclude it. All that occurred at the execution of the will, including the physical and mental condition of the testator at that time, was proper for cross-examination. A testator may be so weak physically as to be unable to write his name ; he may, if necessary, call upon some one present to sign the will for him or to hold his hand while he traces his signature; his mind maybe so clouded by disease or approaching dissolution; or it may be so impaired by intemperance or other vices as to be incapable of forming an intelligent or connected thought. It is clearly the right of parties contesting a will to inquire into such matters upon the cross-examination of the subscribing witnesses. Nor is this a departure from a familiar rule of evidence that a defendant, who has not opened his case will not be allowed to introduce it to the jury by cross-examining the witnesses for the adverse party, for the reason as before stated that the mental condition of a testator at the time of the execution of his will is a part of the res gestos.
This disposes of the third and fourth assignments of-error. As the case will have to go back for a retrial it is proper to refer to the remaining assignments. It is sufficient to say, in reference to the first, that any statements made to the witness by certain of the legatees as to the effect of setting aside the will could not possibly
We do not see. any error in the charge of the court. The presumption of law is always in favor of sanity, and the learned judge was right in saying that the burden of proving unsoundness of mind in the testator was upon the party impeaching the validity of the will for this cause.
Judgment reversed and a venire facias de novo awarded.