8 N.C. 248 | N.C. | 1821
Evidence is admissible of the declarations of a testator made at any time subsequent to the execution of the will, which goes to shew that the testator believed the contents of the will to be different from what they really are; or declarations by testator of any other circumstances which shew that it is not his will, are admissible.
The following is the case as it appeared reported to this Court in the statement made by the Court below.
This was a case of a contested probate of a will between the executors and one of the heirs and next of kin: the paper writing purported to have been published and declared as the testator’s last will and testament, in the presence of two witnesses : they declared on examination, that the will was executed at the house of William Blackledge, in Newbern, between sun-rise and breakfast time on some day in August, 1815: that they were called to the house by William Blackledge, for the purpose of attesting a paper, where they found Blackledge and James Reel alone: that they either saw James Reel write or heard him acknowledge his signature : that they did not at the time know what was the nature of the instrument, but subscribed it as witnesses in James Reel’s presence. They believed that James Reel was not drunk,
“ I, James Reel, of Craven county, being of sound and disposing-t! mind and memory, do make and ordain this my last will and testa- “ ment, in manner and form following:
” Item — J give the sum of two hundred dollars to the children of my is brother John Reel, to them, their executors, administrators and as- “ signs forever. .
“ Item — I give to my brother I,evi Reel one hundred dollars, to him, “ his heirs and assigns forever.
“ Item — I give to my sister Sally Wintly fifty dollars, to her, her - heirs and assigns forever.
“ Acknowledged by the testator at the same time, .
“ As a further part of this will, X give to- my nephews Moses and Al- “ len Ernull, each twenty-five dollars, and to Stephen Ernull 1 give the , “ amount he owes. As witness my hand and seal tins 23d of August, «1815.
“’ Acknowledged, &c. as before,
Lastly, that there was no evidence of revocation.
The Jury found the paper writing produced to be James Reel’s will.
The Defendant moved for a new trial, on three grounds ; 1st. The rejection by the Coui't of material and proper evidence; 2d. Misdirection of the Court ; Sd. Because the verdict was against evidence and law. The motion was overruled, and the judgment of'the Court pronounced that the will was duly proved; whereupon Defendant appealed.
I. The Court rejected proper evidence'on the part of the appellant.
There is no instrument, however solemn, against which fraud may not be averred — Fermou’s case.
Whenever fraud is averred, parol evidence to prove it is always admissible.
Fraud cloaks itself under forms, and legal sanctions; and if you are not permitted to go beyond these formal sanctions, the law which permits fraud to be averred against them is f do de se.
The admissibility of the evidence is not only established by these general principles, but sanctioned by precise
Gaston, on this point, was here stopped by the Court.
2. “ That the testimony of the subscribing witnesses proved that he knew,” &c. The Judge has no right to pronounce on the effect of evidence
3. That they might set aside the will for fraud if they could discover any — but th at there must be proof of it. While the Judge pronounce,? there is proof that Reel was sober, he in the strongest language intimates there is no proof of fraud. How can it be said there is no proof when it appears that Reel was a man of naturally weak intellect 5 a habitual drunkard •, always drunk when in
As to the finding of the Jury, if there be a well-founded doubt upon it, there ought to- be a new trial— inasmuch as the inheritance is forever bound by it — Baker v. Hart,
Evidence of parol declarations, contradicting and subverting the written declarations of a party’s intentions, executed and attested with all the solemnities which the law requires' for the purpose of preventing fraud, perjury, and imposition, should certainly be received with great caution.
Such evidence introduces all the danger which can arise from false and corrupt witnesses, who will swear to declarations which they never heard — from the inattention, stupidity or forgetfulness of witnesses, who misrepresent what they did hear; and from loose and unguarded expressions of a testator, and expressions which he may have used purposely with the view of concealing the manner in which he has disposed of his property;
It is contrary to the spirit of our statute laws to admit such evidence. Wills are required to be in writing : hut if you permit a will in writing to be set aside by evidence of parol declarations, you thereby set up the will which the Law makes, in place of that which the testator has made; and there seems to be little difference between setting up a parol will, and setting aside by parol a will made in writing. Again, our Law says that a will in writing shall not be revoked by parol: Why ? Because of the danger of perjury. But does not the same danger occur in such evidence as is offered here ? You shall not prove that a written will was revoked, for fear of perjured witnesses, but if the same persons will swear that the will never was made, it may be heard ; because forsooth there is not the same danger : In fact, there is more, for while evidence of parol declarations of revocation was received, the Law had defined what expressions would amount to a revocation, but as to this evidence there is no guage. Estates will depend more than ever not only on the integrity and the understanding of witnesses, but on the whim of Jurors, the capacity of the Advocate and the integrity of the Judge — and although from the nature of things, this hazard must be encountered in all judicial proceedings, I should not be disposed to give greater credit or put more to risk in any case than, necessity demands. If such evidence is received at all, (which were it res integra I should think very questionable,) it should be confined to declarations made at the. time the will was made, or so near as to form a part of the res gestee — a time when the mind of the testator was called to the business in which he was engaged ; when it cannot be supposed he said any thing relative thereto with a view of concealing or misrepresenting the manner in which his property was disposed of: when the. attention of the bye-standers would probably be called
But it is said the evidence is relevant, that the Jury should have heard it, and given it such weight as it merited. The evidence if admissible'is certainly relevant; but it by no means follows that all relevant evidence, by which I mean such evidence as, if true, will conduce to enable a Jury to arrive at a correct result, is admissible. Upon the principle of relevancy, if that were the sole test, hearsay evidence, the declarations of persons interested would be admissible, and if it were possible that a Jury could be composed of such materials as that they could sift the false from the true, such evidence should and would be received; for* as the object of evidence is to elicit truth, it makes no difference what the nature of the evidence is, provided the desired result Can be obtained. Evidence of hearsay or of declarations would be admitted, and their weight left for tire Jury to ascertain; but why are they rejected ? not because we will not respect truth when derived from such sources, but because it would be impossible for a Jury composed of mere men to ascertain what is true and what is false. Reasons of policy therefore direct its exclusion.
As it cannot be assumed as a criterion of the admissibility of evideuce, that it tends, if true, to prove the issue; as the policy of our Law, as expressed in the acts of our Legislature, does not favour the introduction of such evidence as is offered here; as it appears to be of dangerous tendency, and reason would direct its exclusion ; let ns examine what is said by authority, the other witness of the Law\ I had expected that the appellant would have produced some authority to shew that evidence of this kind has been received ; l^ut I have been disappointed.
It is admitted that parol evidence of the declarations has been received, l. to rebufan equity ; 2. to explain a
As to tlioso cases in which it has been received to rebut an equity, it will be found generally that they were confined to wiiat passed at the time of making the will, or so near as to form part of the res gestae. And these cases are stronger than that now presented to the Court. The legal operation of the will gives the property to the executor, but from some circumstances apparent upon it, the Court of Equity deems him a trustee for the next of ldn. The parol evidence which is received, is for the purpose of supporting the legal operation of the will, and rebutting an equitable presumption. The Court restrict it to what passed at tiie time; surely a greater latitude would not be allowed to evidence, the effect of which is to destroy the instrument altogether, than is allowed to evidence in its support.
That the same course has been pursued by Judges in Courts of Law, appears from Thomas v. Thomas,
The Judge fin Jackson v. Kniffen) adds, “I think “ the evidence, should have been admitted, and especially “ after it had been proved, that the devisor had been “ guarded and watched over after the date of the will; “ that it had been taken out of his custody and detained, “ notwithstanding his application for it, for the purpose “ of cancelling it, and that his children were denied acs- “ cess to him.” With humility, I must be permitted to question the correctness of this opinion, which makes the admission or rejection of this evidence dependant on any thing extrinsic. If it was not admissible without the existence of the other circumstances, I cannot see how their existence could make it so.
There is another case upon the same point, decided by Judge Story, Smith v. Fenner,
It is true, that if evidence of this nature is rejected, fraud may be successfully practised, but many more will be effected if such evidence should be received: Perjuries will be encouraged — the last wills of testators (]e~ feated. Evils exist on both sides, a wise magistrate will choose the least.
commented on the authorities cited by counsel for the appellant, contending that they did not apply, though some of them established the doctrine that parol evidence might be received of declarations accompanying acts, to shew the intention of the acts.
That such evidence as was offered in the present caso was inadmissible, would appear from Richardson's law of last wills, 279 — 2 Bac. M. 64 Revise,309.
The rule of law as to drunkenness and capacity in a testator, is laid down in the very language used by the Court below, in. Shep. Touch, 403.
It is in terms conceded that parol evidence is admissible to support the averment of fraud, and yet such evidence is asserted to be against the spirit of the statutes requiring wills to be in writing and forbidding parol revocations.
There is no point of the law the spirit of which ought more to be observed than tiiat which declares its abhorrence of fraud, and pronounces all fraudulent acts void. If a signature be procured by fraud to a testament, it is not a written will, it is no will.
It is also conceded that where parol evidence is admissible, declarations of the testator may be received. Now it should be remembered that these are not received as a privileged sort of hearsay evidence. The rule as to hearsay evidence applies only to declarations of third persons, witnesses not on oath.
But it is insisted that the admissions of a testator arc not receivable unless made at the moment; and this is attempted to be supported by reason and by authority.
1. By reason : St is said they <e may not have been serious — may be misunderstood — may have been made to deceive.” To this we answer — All this is possible, and it is right that such suggestions should be weighed. The same objections might be made to proof in a suit between
2. “ By authority Jackson v. Kniffen,
The case from Gallison is a mere'nisi' prim decision, made by a Jndge who is an eminent civilian, accustomed to decide both law' and fact. It is erroneous on its face, for it admits declarations made before,■ evidently an inferior species of evidence; and assigns bad reasons: 1. Spell declarations are in the nature of hearsay.” 2. {‘ They-are, suspicious,” (therefore they should be well weighed.') y3. “ Light sayings of testators .should not do
4 Ves. jr. 186 to 210.
See XÁvingston’s opinion,