26 Tenn. 92 | Tenn. | 1846
delivered the opinion of the court.
This is an issue'of devisavit vel non. A paper was propounded for probate, as the will of Loyd Ford, in the County Court of Washington county, by Phebe Stewart, as the next friend of the defendants in error, who are persons of color, and were the slaves of the said Loyd Ford. In the said will there is a bequest to the said slaves of their freedom, and a devise to them of a portion of the testator’s real estate. The executors named in the will appeared in the County Court and renounced the execution thereof, and thereupon a portion of the distributees and heirs at law of the said Loyd Ford appeared and contested the probate of the paper as the will of Loyd Ford. The court thereupon certified to the Circuit Court, the fact of such contestation, to the end, that an issue might be made up in said court; and the executors named in the will having renounced, the court appointed Joseph Crouch administrator, pendente lite. The contestants thereupon entered into bond to said Crouch, conditioned, to prosecute the contest with effect, or pay all costs. When the proceedings of the County Court were brought to the Circuit Court, an order was made, that an issue be made up to try and determine whether the paper aforesaid, is in truth and in fact the last will and testament of the said Loyd Ford, deceased. On the trial of this issue, the jury found, that the paper produced is the last will and testament of Loyd Ford, deceased. The contestants moved that the verdict be set aside, and a new trial be awarded, which the court refused, and thereupon this appeal in error is prosecuted.
The counsel for the plaintiffs in error insists, that the judgment in this cause should be reversed for the following errors:
1st. It is said that there are not proper parties to this suit; that devisees are not proper parties in any case, and that in this case, the devisees are slaves, have no rights, and can be parties to no legal proceedings. The act of the 20th February, 1836, ch. 18, sec. 2, provides, that where a will shall be presented for probate, and shall be contested, it shall be the duty of the court to require of the persons so contesting, to enter into bond and security, payable to the executors mentioned in said will.
A will must take effect on the death of the testator, and yet a devise’ of property to a slave, in a will bequeathing him his freedom, is valid. To hold that it is so, necessarily implies that the bequest of freedom confers rights before the will is proved. For if a devise of property were made to the slave of another, and after the death of the testator the slave should be emancipated, he could not take under the will. The devise would be void. The conclusion is that, although until the will is proved, they have no legal evidence that they are free, yet the bequest of freedom in the paper purporting to be a will, confers upon them a right to invoke the action of the proper tribunal, that this evidence of their freedom may be afforded. If this were not so, the right of the owner to emancipate, and the right of the slave to receive his freedom, might be alike frustrated, if the executor named in the will shall refuse to act; a conclusion which would shock humanity, and be an indelli-ble stigma on our jurisprudence. But if it were conceded, as the counsel contends, that the County Court should have appointed some person to make up the issue, we do not perceive why the next friend Phebe Stuart, may not be regarded in that light. She propounded the will, and prosecutes the en-quiry into its validity in behalf of the slaves, and was recognized by the County Court in that character.
2. The paper propounded is witnessed by Robert G. Hale, Sarah Hale, and Elizabeth Jane Hale, the two last of whom make their mark. It is contended by the plaintiffs in error, that a marksman cannot be a witness to a will under our statute. By the act of 1784, ch. 22, sec. If, it is provided, that “no last
3. It is insisted, that this paper is not the will of Loyd Ford, because he was of unsound mind at the date of it, and ever af-terwards until his death. The proof shows, that the testator was very old, and that his memory had greatly failed. But without entering into a minute examination of the testimony, it is sufficient to say, that the body of evidence clearly establishes the mental capability of the testator to make an intelligent disposition of his estate.
4. It is also insisted, that the will made by the testator was destroyed, and that the paper now produced has been forged by the witness, R. G. Hale. This question depends upon the credibility of the witnesses to the will. A great number of persons have been examined iq relation to the credit of these witnesses. Many support, and some discredit them. It was peculiarly the province of the jury to decide upon this question. The attacking and sustaining witnesses were before them, and they could best judge of the existence of prejudice on the part of the attacking witnesses. The witnesses attacked, too, were
5. It is insisted, the court erred in admitting proof that the negroes were reputed to be the children of the testator. One of the grounds upon which the probate of this will is contested is, that the testator was not of sound mind. As conducing to establish the sanity of the testator, it was competent to show the relationship that existed between himself and the object of his bounty;, presenting an adequate motive for a sane man to make the bequests of the will. This proposition is not contested. But it is said, reputation cannot be heard to establish the pedigree of illegitimate offspring. We see no reason why it may not be heard, whenever the existence of the relationship becomes a material fact. In the nature of things, reputation is almost the only evidence which would tend to establish that fact. Legitimate offspring may be proved by positive evidence; and yet, because of the difficulty that must often exist in making the proof, the law allows this secondary evidence. In cases where it may be important to establish the paternity of illigiti-mate children, other proof can scarcely ever be produced, and as a matter of necessity, evidence of the reputation of the fact may be heard. But in this case it was more clearly admissible, because the testator had frequently said that they were his children, and the evidence that they were reputed tobe so, cor
6. The court charged the jury, that the law presumed every person of sound mind, “and when a will is sought to be invalidated or impeached by reason of insanity of the testator, it is incumbent upon those who impeach the will, to show by satisfactory proof, that the maker was not of sound mind at the date of the will.” It is supposed this charge is erroneous, because it was competent to have proved the state of the testator’s mind, both before and after the date of the will, and if it had been shown he was insane before the date of the will, this fact established, would have placed the onus upon the other side, to prove actual sanity at the date of the will. We do not perceive that this argument places his honor, the circuit judge, in the wrong. He said, that it was incumbent upon those who impeach the will, to prove that the testator was not of sound mind at the date of the will. This certainly was the issue upon that point, whether at the date of the will he was insane, and it devolved on the party impeaching the will to prove this. Whether this proof might be made, by proving that he was insane before the date of the will, and so place the onus of proof-on the other side, or by proving an unsound state of mind both before and after the date of the will, and thus enable the jury to infer that his mind was unsound at the date of the will, is another question, and one which the charge of the court does not touch. Doubtless, if testimony of this character had been offered it would have been heard, but still the question would have been the same, namely, whether all this proof showed that he was of unsound mind at the date of the will. In this partofthe charge there is no error.
7. The judge told the jury, that “in legal contemplation, a person is of sound mind and memory, if he appears capable of acquiring, by conversation and instruction, a competent share of understanding to enable him to govern himself or his estate, or memory enough to retain a knowledge of what he may acquire. The counsel for the plaintiffs in error, insists that his honor erred in this instruction. Inquiries in reference to the human understanding can never arrive at a clear, precise, and
8. Many witnesses were examined to impeach, and others to sustain the witnesses to the will. Some of these impeaching witnesses said, that from report they would not believe R. G. Piale, but from their own knowledge they would believe him. In reference to this description of proof, the judge charged the jury, that “when a witness deposes as to general character, he should speak of his own knowledge and general report, and give the result of his opinions which these two sources of information have made upon his mind. Character, is the result of personal observation and intercourse, and the information derived from others.” When speaking bn this point, the judge said to the jury, that “he doubted whether a witness who had
Upon this subject, the writers on the law of evidence differ: in none of them at this day is the principle laid down by his honor, the circuit judge, maintained. Mr. Greenleaf says, Law of Evidence, vol. 1, p. 540, sec. 461: “the regular mode of examining into the general reputation is, to enquire of the witness whether he knows the general reputation of the person in question among his neighbors, and what that reputation is. In the English courts the course is, further to enquire whether from such knowledge, the witness would believe the person upon his oath. In the American courts the same course has been pursued, but its propriety has of late been questioned, and perhaps the weight of authority is now against permitting the witness to testify as to his own opinion.” We think notwithstanding the conclusion of the learned writer, as to the weight of authority, it is proper that the witness shall testify as to his own opinion. But this opinion must be the result of his knowledge of the general reputation of the principal witness; not of particular facts, nor of his estimate of the character of the party, founded upon his personal knowledge of pnany facts. If the facts within his knowledge have become public, and have created for the party to whom they relate a general reputation — then the witness may give his opinion founded on such facts. But this opinion is not tobe formed because of his personal knowledge of the facts, and the estimate his own mind may place upon them — but upon the general reputation which their existence has given to the party.
And here it may not be amiss to distinguish between general reputation and rumors. Rumors may exist, and may acquire a general cirpulation in a neighborhood — and yet their origin may be so vague, or the sources from whence they spring, so unworthy of credit, as that the people of the neighborhood may entirely disregard them, and retain the utmost confidence in the party to whom they relate. In such a case as this, it is
This estimate is founded upon their knowledge of his integrity and veracity, or the want of these virtues, and by an interchange of opinion among the neighbors, we become acquainted with the reputation the party possesses in that community. It is in reference to this general reputation, that an impeaching witness must speak. And we think the witness should state, “whether he knows the general reputation .of the person in question among his neighbors, and what that reputation is.” He may then state “whether- from such knowledge, he would believe the person on oath.”
9. The court charged the jury that “if, after the execution of the will in 1840, the testator went to the person who held it, and told him to burn it, and it was not done, although he might have supposed it to have been burned, it is no revocation, although he might have been of sound mind. If he told them to burn it, and he was of unsound mind, and it was not done, it of course is no revocation.” in this direction, it is alledged there is error. It appears from the proof that when the will was executed, it was left in. the custody of R. G. Hale, who had written and witnessed it and that he had given it to his wife to take care of. Some time after its execution, the testator, who was ninety years old, went to the house of the witness and in .great apparent distress and excitement asked for his will. He was told to go and get his son, Loyd, and some neighbor and get the will. He replied that his son had driven him there, having drawn a club on him and threatened to beat him, if he did not come and get the will. He was so excited and earnest that the witness told his wife to get the will. She brought a paper which, by the old man’s direction, was thrown in the fire. The testator was in great trepidation and alarm, and seemed to be out of his head. The paper thrown into the fire was not the will, but was .an old school article. Some days afterwards the testator was at Hale’s house, and enquired of Sarah Hale, (the wife of R. G. Hale,) if she had his will yet; she told him
Upon this evidence, it is insisted, that the jury were justified in rendering a verdict establishing the will, although the testator directed it to be cancelled and another paper was burned in .jhis presence, which, at the time he believed to be his will. It is certainly true, that if a will be wholly or partially destroyed by the testator, whilst’of unsound mind, it will be established as it existed in its integral state; that being ascertainable. 1 Wms. on Ex’rs. 7.8. If therefore, the jury believed that the testator was of unsound mind when he directed the paper to be burned, and that it was not his voluntary act, the facts that occurred would not amount to a revocation. Bui this matter should have been left fo them to decide from the testimony.
It is also insisted that as the will was not destroyed, the testator afterwards knew that it was in existence, and intended that it should stand for his will, and that these facts are sufficiently proved by one witness. Upon this subject we concur with the following propositions laid down in the case of Burns vs. Burns, 4 Serg & Rawle, 105, 297. “If a man having two wills in his hand, intending to destroy the one last made, by mistake destroys that first executed, the law does not require in order to revive and establish the will intended to be destroyed, such proof as is necessary to give validity to an original will, viz: proof by two witnesses. * * * * * * * Such will remaining in existence, it is a matter of fact in the first place, whether the testator intended to burn it or not, and in the second place, it is also a matter of fact, whether supposing he did intend to bum it, he did not afterwards know that it was in existence, and intend that it should stand for his will. Those facts are to be proved as facts in general, and not according to the mode prescribed by' statute for the probate of a will. So the evidence given of testator’s intention and which will he intended to destroy, may be rebutted by contrary evidence, though but by one witness,” 1 Wms. on Ex’rs 72, note 1. Thus in this case, if the testator knew that Sarah Hale still had his will, and intended it should stand for his will, her
The court submitted the naked proposition to the jury, that if the testator, being of sound mind, told the witnesses to burn the will, and it was not done, although he might have supposed it to have been burned, it is no revocation. And this charge is made in reference to a transaction, in which, from the proof th^ tebtator was deceived by the burning of another paper, which he supposed was his will- We cannot concur with the Circuit Court in the principle above stall'd. It is true, an intention to revoke, however strong, will not amount to a revocation, unless some act be done. But Mr. Williams in his Treatise on Executors, p. 73, says: “With respect to what shall amount to a cancellation, or obliteration, sufficient to operate a revocation, the principle appears to be, that if the intention to revoke is apparent, an act of destruction or revocation shall carry that intention into effect, although not literally, an effectual destruction, or cancellation, provided the testator has completed all he designed to do for that purpose.” If a man having two wills of different dates by him, should direct the former to be cancelled, and through mistake the person directed should cancel the latter, such an act would be no revocation of the latter will. 1 P. W’ms, 345: 1 W’ms on Ex’rs, 68. Here, although there was an actual cancellation, it- was no revocation, because the intention to revoke was wanting. Upon the same principle, if an act be done, which was intended as a revocation, it will so operate, if the testator has completed all he designed to do for that purpose, and believes the will to be cancelled. Thus a testator opened his will, gave it a “rip” with bis hands so as almost to tear a bit off, then rumpled it together in his hands and threw it in the fire, but it fell off; it would soon have been burnt, had not one Mary Wilson, who was present, taken it up and put it in her pocket. The testator suspected she had it, and said it should not be his will, and bid her destroy it. ,He afterwards