| Tex. | Jul 1, 1879

Bonner, Associate Justice.

This is an appeal from the Disti’ict Court of Leon county, in the matter of the contest of an instrument purporting to be the last will and testament of J. W. Warren, deceased. The probate was resisted by appellees, W. H. Brown and others, as the heirs at law of J. W. Warren, upon the ground that the will was a forgery. It was attested by D. E. Shumate and Ebah Hallowell, as subscribing witnesses, who testified to its due execution as required by law.

There was a verdict and judgment against the validity of the will, from which W. M. Johnson and D. 0. Warren, as executors named therein, the latter being also a beneficiary thereunder, prosecute this appeal.

We do not deem it necessary or advisable, in view of the judgment we shall render, to discuss all the alleged errors assigned, nor shall we dispose of them in the order assigned.

*75The facts in regard to the depositions of Robert Lacy are not sufficiently presented in the record so that we can advisedly pass upon this objection.

We are of opinion that the proposed testimony of D. 0. Warren was not sufficiently material to the issue to authorize a reversal of the judgment because rejected by the court.

Some of the charges asked by the plaintiffs, Johnson and Warren, (as, that the testimony of one positive, unimpeached witness is entitled to more credit than many merely negative witnesses, and in directing the jury as to the rules which should govern them in discriminating between the witnesses,) were charges upon the weight of testimony, deductions of fact, and ordinary rules of reason, proper to be considered by the jury and legitimate in argument before them, but not rules of law to be obeyed by them, which would be embraced in a charge by the court. (Brown v. The State, 28 Tex., 200; Parrish v. The State, 45 Tex., 55; Sparks v. Dawson, 47 Tex., 147.)

We think the court properly refused the special charge asked, that the credibility of a witness is referable to the time of the act in question, and not to the time when he is called to testify.

If the witness Shumate, before the trial, made statements in regard to the execution- of the will contradictory to those sworn to by him on the trial, it was not error to permit the witnesses Thomason and Burroughs to prove this, although Shumate may have then testified that he did not remember to have made them. Though formerly a disputed question, Mr. Phillipps thinks the better opinion is to admit the testimony, and this is the rule adopted by this court in Weir v. McGee, 25 Tex. Supp., 82.

The fact that the witness may have made the contradictory statements, and not his recollection of them, is the basis for their introduction to impeach him. The object of the preliminary examination is to give an opportunity for explanation. The testimony, however, was proper for the considera*76tion of the jury, not to prove affirmatively the matter in issue by his first statements, but negatively only, by discrediting his testimony; and the court, by appropriate instructions, should advise the jury of the purposes for which the testimony is admissible.

Heither was there error in the ruling of the court, under the circumstances as disclosed by the record, in permitting the contestants to introduce evidence of the general bad reputation of the witness Shumate for truth and veracity, after having first sought to impeach him by contradictory statements ; the plaintiff having, in rebuttal of this, introduced evidence of his general good reputation. Such questions must be left much to the discretion of the judge presiding, and are not subject to revision, except in a clear case of abuse of this discretion. The court seems to have been quite liberal to both parties, as several impeaching and supporting witnesses were examined on each side, when it had the right to reasonably limit the number. (Bunnell v. Butler, 23 Conn., 65" court="Conn." date_filed="1854-06-15" href="https://app.midpage.ai/document/bunnell-v-butler-6576721?utm_source=webapp" opinion_id="6576721">23 Conn., 65, as cited in 1 Greenl. Ev., sec. 461, note 1.)

It was, however, in our opinion, error to permit testimony against the reputation of witness Shumate, based, as to impeaching witness Craig, upon a certain cotton transaction had between them, and, as to the other witnesses, upon public opinion growing out of the particular transaction then on trial before the court. It is well established, that a witness can be impeached by evidence of his general reputation only, and not of particular facts; as he is presumed to be readily prepared to support the one, but not the other, without notice. (1 Greenl. Ev., sec. 461; Boon v. Weathered, 23 Tex., 675" court="Tex." date_filed="1859-07-01" href="https://app.midpage.ai/document/boon-v-f-m-weathereds-administrator-4889544?utm_source=webapp" opinion_id="4889544">23 Tex., 675.)

The whole policy of our administration of justice is to decide causes according to the law and the evidence, and, as far as possible, to guard against public or private influence, partiality, or prejudice. The bias of a juror for or against a party is good cause of challenge; and the law is so guarded, that in felony cases jurors are placed in charge of a sworn officer, and not permitted to separate from him, even by con*77sent. To permit a subscribing witness to a will, the clue execution of which is the very issue to be decided by the court, to be impeached by the verdict of the community, arising from that very transaction itself, is virtually to prejudge the case, and to transfer the trial from a sworn jury to the very uncertain and capricious tribunal of public sentiment. Although all' due respect should be paid to an enlightened public opinion in matters proper to' be decided by this test, yet to permit courts and juries to be influenced in their trials by outside sentiment, would be subversive of the great ends and purposes for which they were organized.

It does not appear from the record whether the ground upon which the general reputation was based, as testified to by the impeaching witnesses, was developed on the direct or cross examination. Mr. Justice Bell, in the elaborate case of Boon v. Weathered, 23 Tex., 686, adopts as the correct rule in such examinations, that the only proper questions to be put to the witness are those laid down in the formula of Mr. Swift, in his work on Evidence, as being less objectionable than any others to which his attention had been called. These are: Whether he knows the general character or reputation of the witness intended to be impeached in point of truth among his neighbors ? If so, then what that character is, whether good or bad ?

We think the proper practice should be, that, after the impeaching witness has, prima facie, thus first qualified himself to speak of the general reputation of the other witness, (this to be decided by the court,) then, before be answers the question as to what that reputation is, the opposite party, if he demands it, should have the right to cross-examine as to his means of knowledge; otherwise, if not qualified, and he has given his opinion, then, as said by the Supreme Court of North Carolina in The State v. Boswell, 2 Dev., (Law,) 212, it may be too late to correct the error, as the injury has been done, and an impression made on the minds of the jury *78which neither the charge of the court nor the remarks of counsel can entirely remove.

By far the most difficult question in the case relates to the admissibility of the declarations of J. W. Warren, prior and subsequent to the date of the proposed will, tending to prove unfriendly feelings toward David and Henry Warren, two of the principal beneficiaries under the will. The subject to which this question belongs is one of very considerable importance, and has given rise to conflicting opinions.

The arguments in favor of the declarations of a testator, in disparagement of his will, may be summed up, in the language of Reel v. Reel, 1 Hawk., 248: “To reject the declarations of the only person having a vested interest, and who was interested to declare the truth, whose 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.”

On the other hand, it is contended that such declarations are unlike those made against interest, which are evidence against the owner and those in privity with him, and unlike subsequent declarations of a vendor in disparagement of his title to property, made after he has parted with the same; that they are but hearsay; that although the testator had a vested interest, as the declarations do not affect the rights of any one, not even his own, he is not interested to declare the truth; that he is not a party to the contest; that neither the heirs nor the devisees are purchasers, but both are beneficiaries ; that the fact that his fiat gave existence to the will does not prove that he may destroy it with a breath; that the statute requires he shall make his will in writing, and that he shall not revoke it by parol. (Boylan v. Meeker, 4 Dutcher, 283-289.)

That able and learned jurist, Judge Selden, in the elaborate and well-considered case of Waterman v. Whitney, 11 N. Y., (1 Kern.,) 160, reviews many of the cases on this subject, and groups them into the following three classes: 1. To *79show a revocation of a will admitted to have been once valid. 2. To impeach the validity of a will for duress, or on account of some fraud or imposition practiced upon the testator, or for some other cause not involving his mental condition. 3. To show the mental incapacity of the testator, or that the will was procured by undue influence.

First, as to revocation. There seems to be no question that the mere declarations, unaccompanied with some unequivocal act of revocation, (as, burning, tearing, or cancellation,) Avill not amount to a revocation. Written instructions even to destroy the will are not, of themselves, sufficient. (Tynan v. Paschal, 27 Tex., 303.)

Second, to impeach the will for duress, &c. As to this class, it is held, by Judge Selden, that it is clear from the authorities that the declarations of the testator cannot be received, except such as were made at the time of the execution of the will and were strictly a part of the res gesta.

Third, to show mental incapacity or undue influence. As to this class, the authorities generally seem to agree that the declarations of the testator, whether made within a reasonable time prior to the execution of the will or contemporaneously therewith, are admissible, since they are not intended as evidences of the testator for or against himself, but as facts by means of which the jury may be aided in their estimate of his free agency; as the sayings of a person of weak mind pi’ove neither the truth nor falsity of what is thus spoken, but only his capacity. (Wigram on Wills, 284.)

In the above case of Waterman v. Whitney, 11 N. Y., 169, it is held, that subsequent declarations under this class should not be received, if so remote as not legitimately to bear upon the state of the testator’s mind at the time the will was made, of which the court, in the exercise of a sound discretion, should judge. (Boylan v. Meeker, 4 Butcher, 274.)

Eono of the cases to which we have referred, however, raise, from the facts of the particular case as reported, the precise point now before the court—the admissibility of the *80declarations of the testator to invalidate a will upon the ground of forgery. But, as remarked in Griffin v. Stadler, 35 Tex., 706, they are generally cases which presuppose that there is no question or doubt as to the complete execution of the will. The authorities seem to be very few, in which declarations of a party are sought to be introduced to prove that a will purporting to be his, is a forgery. This arises, doubtless, from the very nature of the case, as a will, being an instrument to take effect after death, would, if forged, rarely, if ever, come to the knowledge of the one who purports to be the testator.

After full consideration of the question in this ease, we are of opinion that the declarations of J. W. Warren, before and after the date of the proposed will, expressive of feelings of ill-will toward the beneficiaries, as were his feelings of kindness toward them, were properly admitted in evidence,—not, of themselves, as proof sufficient to overcome the testimony of the subscribing witnesses, but as a circumstance, in a case of this character, proper for the consideration of the jury in connection with all the other facts and circumstances in evidence; that they are not so much declarations disparaging a duly executed will, as evidence of an independent collateral fact—the state of feeling between the parties—and which would, in some degree, tend to prove the issue before the court.

We are of opinion, however, that there was error in admitting, over the objections of the plaintiffs, evidence that J. W. Warren attempted, just before his death, to make a will, which was left unfinished by reason of his death. This was not inconsistent with the assumption that he had made the one in question. There was no evidence that he had any knowledge of a forged will, and hence it cannot be presumed to have been intended as a revocation or substitute. If'he had made no will at all, David and Henry Warren, not being his heirs at law, would not have taken his property by descent.

We cannot see that, in any point of view, this testimony *81tended to prove the issue before the court. The case seems to have been hotly contested and public opinion excited. Under the circumstances, it may have had an undue influence with the jury. It was, therefore, irrelevant and improper, and should have been excluded.

For the above errors, the judgment is reversed and the cause remanded.

Reversed and remanded.