55 S.E. 709 | N.C. | 1906
Propounders, appearing in the record as plaintiffs, offered for probate a paper-writing purporting to be the last will and testament of Fred. H. Linebarger, deceased. Caveators, appearing as defendants, filed a caveat averring that said paper-writing was not the last will and testament of said Fred. H. Linebarger, for that "It was obtained by the undue influence of Caroline Linebarger, Hosea Linebarger, Marvin Linebarger, and other persons in their behalf." Thereupon an issue was submitted, to wit: "Is the paper-writing offered for probate, and *193 every part thereof, the last will and testament of Fred. H. Linebarger, deceased?" The jury having responded "No" to the issue, judgment was rendered accordingly, and propounders having noted exceptions to his Honor's rulings set forth in the opinion, appealed. Propounders proved the execution of the alleged will by the subscribing witnesses thereto and that at the time thereof the alleged testator was of sound mind, etc., and read the same. By the provisions of said paper-writing the alleged testator gave his entire estate, both real and personal, except several pecuniary legacies, to his wife, Caroline Linebarger, for life, remainder to two of his sons, being the youngest, Hosea and Marvin Linebarger. He gave to six of his children twenty dollars each, to one child fifteen dollars, to two sons forty dollars each, and to the children of two deceased daughters one dollar each. He named his wife and another person executors, The paper-writing was executed 27 November, 1903, and he died 15 March, 1905. It was offered for probate April, 1905. (231)
For the purpose of showing undue influence, caveators offered to show the declarations made by the alleged testator before and subsequent to the execution of the paper-writing, also declarations of one of the devisees. To the admission of this class of testimony propounders excepted.
It appeared that the alleged testator was, at the date of the paper-writing, eighty-one years of age, and that Caroline Linebarger was his second wife. There was nothing in the testimony of the subscribing witnesses indicating mental incapacity, nor was there any evidence from this source showing undue influence or fraud.
Among other witnesses introduced to show declarations of the alleged testator was Mrs. Susan Linebarger, wife of one of the caveators. Propounders objected to her competency to testify to declarations of the alleged testator, because of sec. 1631, Rev. (Code, 590). It is clear that if the caveators succeeded in their contention, the husband of the witness, as one of the heirs at law, became the owner of an undivided interest in the real estate. It is well settled by a number of decisions that the wife immediately upon the seizin, either in law or deed of the husband, becomes entitled to "an inchoate right of dower or estate in the land" of her husband. Gatewood v. Tomlinson,
The declarations of the testator fall within three classes and (232) their admissibility depend upon different principles and exceptions. Caveators proposed to show declarations which it is claimed tend to show undue influence made prior to the execution of the paper-writing.
Mrs. Kale testified that prior to the death of her first husband, which was two years before the death of Mr. Linebarger, he said in her presence that he wanted the law to make his will, each child to have his part; that he did not intend to make a will unless "they all" persuaded him to do so.
Mr. Gant testified that during the month of April, 1900, while at Mr. Linebarger's house, he said that "he didn't see much pleasure; that they terrified him day and night; he saw no peace." Witness asked him, Who? He said, "Ma and Hosea, to make a will to Hosea and Ma." That he had heard Mr. Linebarger say repeatedly that he wanted his property divided equally among his children. That in 1901 he had another conversation with Mr. Linebarger in which he complained of the conduct of Hosea and his wife, to whom he referred as "Ma."
One Helderman testified that, at some date not fixed; but which by reference to certain matters of public history we may fix at some time during the year 1903, Mr. Linebarger said to him that "Hosea and his last children wanted him to make a will, but he said he wanted all his children to fare alike when he was dead and gone."
One Monroe Gordon testified that some time during the year 1903 Mr. Linebarger said to him that his wife wanted him to make a will to her and her two boys, but that he was not going to do that; that he could not eat, sleep, and work; that he could not live many years.
The only evidence of declarations made subsequent to the execution of the paper-writing were those testified to by Mrs. Susan Linebarger. (233) We find no testimony showing any acts on the part of propounders or any other person of undue influence or fraud.
That the declarations of the testator regarding the execution of his will indicating the state of his mind, etc., made contemporaneous with or so near thereto as to fall within the principle of res gestae are competent in an issue of devisavit vel non, is well settled. 1 Redf. on Wills, 542. In Shailer v. Bumstead,
In so far as the declarations tend to show undue influence, we think that they are competent. While the authorities respecting the extent to and purpose for which such declarations may be admitted are not uniform, we think that, at least in this State, those offered here were competent. 1 Green. (16 Ed.), 760.
Eliminating the testimony of Mrs. Susan Linebarger, we find no evidence of declarations made subsequent to the execution of the paper-writing. This relieves us from the discussion of the much vexed question as to the extent to and purpose for which such declarations are admissible in this State under the rulings in Reel v. Reel,
Caveators proposed to show declarations of Hosea Linebarger made prior and subsequent to the execution of the paper-writing, tending to show undue influence by him. There was no declaration regarding any act done by said Hosea. The exception to this testimony presents a difficult question. It is elementary learning that a party's declarations against his own interest, or those claiming under him, are always competent, this being one of the settled exceptions to the hearsay rule. It is equally well settled that, when the person whose declarations are sought to be shown, is alive, they are not competent against strangers, or those claiming a common but not joint interest. That persons taking a devise, or bequest, in a will have a community of interest, but not a joint interest, is well settled. "Upon the question whether a declaration of a legatee made after the execution of a will is admissible to show that it was procured by undue influence, there is a conflict of authority. The majority of the cases reject such evidence, reasoning, on general principles, that no one should be concluded by unauthorized statements of others with whom he is in no way associated or identified in interest. The admission of a legatee is evidence against the will where he is the sole beneficiary under it. But the interests of legatees under a will are several, not joint. Each claims independently of the others, and his *196 interest should not be affected by the acts or declarations of the other legatees." 1 Underhill on Wills, 163. The question is presented and discussed in Shailer v. Bumstead, supra. "The admissions of a party to the record against his interests are, as a general rule, competent against him; and this rule applies to all cases where there is an interest in the suit, although other joint parties in interest may be injuriously affected. But it does not apply to cases where there are other (235) parties to be affected, who have not a joint interest, or do not stand in some relation of privity to the party whose admission is relied upon. A mere community of interest is not sufficient. Devisees and legatees have not that joint interest in the will which will make the admission of one admissible against the other legatees. * * * The separate admissions of each made after the act, that the will was procured by their joint acts of fraud or undue influence, cannot be permitted to prejudice the other. Such statements are only admissible when they are made during the prosecution of the joint enterprise. Admitting, for the present, that any interest in a will obtained by undue influence cannot be held by third persons, however innocent of the fraud, and that the gift must be taken tainted with the fraud of the person procuring it, still it by no means follows that the interest of the other innocent legatees should be liable to be divested by the subsequent statements of the parties procuring the will. Such a rule would violate all sense of right, and is not sustained by the decisions. The admissions of a legatee made prior to the date of the execution are rejected for the reason that, if made before he becomes a legatee, they are not declarations against his interest." 1 Underhill on Wills, 163.
Of course, if there be a conspiracy, or the undue influence be either the result of a common design or be committed jointly or in concert, the acts and declarations of the parties engaging therein would be admissible in the same way and to the same extent as in other like cases.
In Gash v. Johnson,
It would seem from the decision in McRainy v. Clark,
It is true that the declaration offered in that case was that the testator was mentally incompetent. It may be that a distinction exists between declarations of this character, which go to the validity of the *198 entire will, and those amounting to admissions that the declarant who has a legacy or devise, under the will, admitted that he had exerted undue influence or practised a fraud upon the testator. There is not a scintilla of evidence in this record that Marvin ever spoke to his father, to his mother, or to Hosea, in regard to the will. He denies that he did so, and no one contradicts him. He expressly says that Marvin had not done so. There is no evidence, other than Mr. Linebarger's declarations before the will was made, that Mrs. Caroline Linebarger had talked with her husband in regard to his will. It would therefore be manifestly unjust that Hosea's declarations regarding his own conduct, for his own benefit, should be used against them.
Excluding the declarations of Hosea and of Mrs. Susan Linebarger, (238) we are of the opinion that, measured by the standard applied by this Court in Lee v. Williams,
His Honor instructed the jury that if they found that the paper-writing was executed as testified to by the witnesses to it, they would answer the issue "Yes." unless they found from the evidence by the caveators, first, that undue influence was in fact exerted; second, that it was successful in subverting and controlling the will of the testator. In regard to the declarations, he said that they afforded no substantive proof of undue influence and were not admitted for that purpose, and before the caveators could recover it was necessary that they should prove that undue influence was in fact actually exerted upon the testator by other evidence than his own declarations. This instruction was correct and is sustained by the authorities and the reason of the thing. In re Hess's Will, supra.
It would be an exceedingly dangerous innovation upon the (239) statute which requires a will to be executed according to the formalities prescribed, to permit it to be set aside upon mere *199 declarations of the testator in regard to undue influence, unaccompanied by any act on the part of any person. Measured by the standard laid down by his Honor, we think that he should have instructed the jury that there was no evidence upon which they could find against the will as to Mrs. Linebarger and Marvin. We can see no reason why a special issue may not be submitted to the jury, as suggested in Gash v. Johnson, supra, directed to the interest of Hosea. In that event, as we have seen, the declarations of the testator made prior to the execution of the will, coupled with those of Hosea, would be competent to be considered by the jury on the issue thus presented.
The propounders excepted to certain parts of his Honor's charge in regard to insanity. While we find no suggestion of insanity, either in the caveat or the evidence, in passing upon the question as to whether the will was procured by the undue influence of Hosea, the age of the testator, his mental and physical condition and other relevant facts would be competent to be considered by the jury.
The propounders attempted to raise the question that there was no evidence to be submitted to the jury by a motion for judgment of nonobstante veredicto. This was not the proper motion. His Honor could not have rendered judgment notwithstanding the verdict. It is evident, however, that it was their purpose to move for judgment upon the whole evidence.
We are of the opinion that as to Caroline and Marvin Linebarger, eliminating the incompetent testimony, the motion should have been allowed. The cause should be remanded for a new trial, in accordance with the principles announced herein.
New Trial.
HOKE, J., concurs in result.
Cited: In re Fowler,
(240)