25 Ky. 331 | Ky. Ct. App. | 1829
delivered the opinion of the Court.
A paper purporting to be the last will and testament of Francis M‘Daniel, dated 17th July, 1826, having been offered to the county court of Harrison, for probate, by William Tucker, who was nominated the executor, was rejected, on the ground that, in the opinion of the court, the testator had not a disposing mind.
Jane, Joseph and Alsev, who were the slaves of Francis M‘Daniel, and whom the rejected paper will emancipate, if it be established as his will, have, with the leave of this court, prosecuted a writ of error as paupers, to reverse the judgment of the county court.
The proof of the execution of the instrument, con-formably to the forms and ceremonies required by
The right of the plaintiffs to prosecute a writ of error, was contested, but was frankly admitted on an examination of the case of Wells’s will, in V. Li it. Reports, 273.
Before \ye proceed to an investigation of the facts, bearing on the main question, it will be proper to dispose of a preliminary point. William Tucker, (named as executor,) was offered as a witness, by the plaintiffs. His competency was denied by the counsel for the defendants, on two grounds. 1st. Because the office of executor is supposed to be so far valuable and desireable, as to create in W. Tucker, the influence of pecuniary interest in the event of this case* 2d. Because the county court rendered a judgment against W. Tucker, for costs, which the counsel suppose a reversal of the order rejecting the will, will also reverse.
An executor who has no interest in the residuary-fund, and no other interest than that of a fiduciary, is a competent witness to prove the will, whereby his appointment is initiated. I. Philips on evidence, 433^ I. Mod. 1Q7, Many other authorities, both British and American, might be cited in confirmation of these, but it is deemed unnecessary, to multiply references. Nor is it necessary to employ argument, to illustrate a doctrine which is well established by the authority of law, fortified by reason and analogy.
Whether the judgment for costs could be reversed in this case, as Tucker is not a party, and has not complained, would be a question somewhat perplexing, if it were necessary to decide it. But we shall express no opinion now upon it, as it is our opinion that Tucker is competent, even if the judgment for costs against him, shall depend, directly or virtually, on the. affirmance or reversal of the order rejecting the document claimed by plaintiffs to be a good will. If, in consequence of the judgment against him for costs, Tucker now has any interest in this case, that interest was acquired voluntarily by him, since the
But the rule extends no farther than the reason and policy of it require. And consequently, a witness may be rendered incompetent by acquiring an interest in the event of the suit, without his own voluntary agency; as when the interest devolves on him by operation of law, or by any accident happening, without his agency, or which he could not have controlled.
If Tucker have any interest in this case, it has been acquired since the plaintiffs had an interest in his testimony, and a legal right to it; and it has not been vested in him, by mere operation of law, nor by any accident which he could not have averted, or which could have occurred without his own voluntary act. He made himself a party in the county court. The paper might have been offered for profert, as a will, by any person who was interested in establishing it. It was not necessary for him to offer it, and make himself a party to the contest in the county court. His doing so, seems to have been perfectly voluntary. There is no evidence that what he did, was done at the instance, or with the knowledge or consent of the plaintiffs. Whether, therefore, the judgment for costs be right or wrong, he brought it on himself. It was the consequence of his own act, and the plaintiffs must not suffer by it. It would be an idle waste of time to array the numerous authorities on this subject. It is enough that we do not doubt that they secure to the plaintiffs the right to the testimony of William Tucker; and, therefore, he was admitted and heard, as a competent witness in their behalf.
Sixteen witnesses were sworn and examined, as to the capacity of Francis M’Daniel. Four of these were for the plaintiffs, and nine were for the defendants. Three physicians were also sworn. The
The foregoing is a synopsis of the evidence of the thirteen witnesses from Harrison.
In addition to these witnesses, Doctors Major Wilkinson and Roberts were sworn; the two former
What is a disposing mind, must be ascertained, more by the facts of each case, than by any comprehensive definition.
A survey of all the facts, may authorize a diversity of opinion as to the state of the testator’s mind, and the degree of capacity which he retained. That his faculties were, in some degree, impaired, ought not to be doubted. His mind was more feeble and passive than it had been when his body was in health and vigor. An habitual quiescence and an occasional torpor, which are peculiar to such a physical prostration, and invariably result from it, in some degree, characterized the mind of M’Daniel. But was there such a prostration or alienation of intellect, as to incapacitate him to make a will1! A correct answer may be somewhat difficult.. But after a full and careful consideration of all the facts, we have come to the conclusion, that he had a disposing mind.
The testimony, when scrutinized, is not necessarily contradictory. In numbers, the defendants have a great advantage. But this is more than counterbalanced by the nature and the intrinsic weight of the facts which are opposed to it. The witnesses are all credible and intelligent. They all swore to what they believed, and to nothing more nor less, as we feel authorized to infer, from their characters and deportment. But the facts affiimed by the witnesses for the will, cannot be true; if their opinion of M*Daniel’s mind was incorrect, all the facts stated by the opposing witnesses maybe true, and still their deductions from them may be delusive. If M’Daniel had not a disposing mind, William Tucker and the subscribing witnesses swore falsely, with design and with a full knowledge that what they swore was false. If he had a disposing mind, the witnesses for the defendants swore to nothing which should subject them to the imputation or suspicion of perjury. Every fact stated by them, or either of them, may be admitted, without conceding the insanity of M’Daniel’s mind.
'This decisive consideration will be manifested by an analysis of the evidence. We will not recapitulate and collate the facts; the substance of them has been stated.
The opinions of witnesses are not entitled to much influence in such a case as this. The facts from which the opinion's are deduced are more decisive;
The reasons assigned by the witnesses for the plaintiffs, would, unopposed, have left no doubt of the capacity of M'Daniel to make a will, even if the witnesses had expressed no opinion to that effect. The facts, without the opinion, are incomparably better than the opinion without the facts. Are the facts true? They must be admitted to be so, because the witnesses are credible, and had no motive [to pervert or misrepresent, or conceal the truth. Sanity of the testator, is the necessary consequence.
The facts on the other side, are not inconsistent with those proved b.y the witnesses for the plaintiffs-. They may be, and we do not doubt are, all true-. But those established by the witnesses for the defendants, do not necessarily contradict those proved by the Witnesses for( the plaintiffs, nor so unavoidably lead to the opinion which has been founded upon them;
It may be true, that the testator sometimes, when suddenly awoke, or roused, from a momentary stupor, did not know the names of some of his neighbors; and still he may not have been insane, or if he were incompetent to make a valid will, at those moments, he might have been competent, when Tucker drew the one now under consideration. It may be true that some of those who saw him, could not understand what he attempted to utter; and, nevertheless, he may not have been insane, unless the mind can never conceive what the tongue will not utter; and so every other fact stated for the defendants, may be reconciled with a disposing mind. M‘Daniehdid not read, because it was -physically impossible to do it.
But it cannot be true, that the testator knew how-to dictate every provision in the will; recollected the amounts advanced to his children; remembered that his wife requested him to liberate the old negro
^Therefore, the will must be established, unless the disease, with which the testator was afflicted, be of such a character, as to shew that it was impossible, or greatly improbable, that he could have had a disposing mind, at any time after its first shock.
How much sover, the muscular and nervous system may have been affected, it is hardly possible that the mind could have bpen paralysed in an equal degree; for if it had been, it was scarcely possible, as it seems to us, that he could have lived four years. And we are vei’y sure that he could never have reasoned on any thing, or remembered any thing, as all the testimony for the defendants coincides, that he sometimes did.
We cannot admit that a paralysis, however universally it may pervade the system, affects the mind equally with the body. It could not do so unless the mind were material.
The mind derives its aliment from the body, through the senses; whilst any one sense remains, the mind can act rationally.
The destruction of all the senses is death. No one of M‘Daniels’s senses was destroyed; some of them as hearing and seeing, were not impaired. He lived four years. He must in this interval, have had mind and reason enough, to dispose, prudently, of his estate*
But McDaniel’s tongue still spoke, and intelligibly, to those who were often with him. In all his conduct he evinced the exercise of a rational mind, and no witness proved one single act or word, in the four years. which indicated settled deranghnent of mind; all of them, proved acts and expressions, which could be the offspring of no other than a sound mind; although it might be and no doubt was somewhat impaired.
None of the children opposed the making of the will. It was made publicly, and with the knowledge and approval of several of them. It was just and equal in its provisions, after liberating the slaves, it distributes the estate equally; it displays reason, and memory, and benevolence. It was the plan of the testator’s own mind, uninfluenced by the advice or dictation of any other. That mind must have been rational. We cannot, therefore, refuse to permit its will tobe carried info effect. We know of no case, in which, under similar circumstances, a will has been set aside. Many have been established on facts, more questionable, in our opinion, than those in this case.
Wherefore, the order of the county court, refusing to admit the will of Francis M‘Daniel to record, is reversed, and set aside; the will ordered to be recorded here, as fully proved; and a certified copy transmitted to the county court of Harrison, with instructions to admit it to record there, as a will, recorded here, on full proof.