Meek v. Perry

36 Miss. 190 | Miss. | 1858

Lead Opinion

HARRIS, J.,

delivered the opinion of the court.

From the record it appears that David McKinnie, the father of testatrix and of the appellee, Mrs. Perry, died in the year 1837, leaving these, his only children: Mary, now Mrs. Perry, born on the 27th August, 1834; Louisa R., the testatrix, born 7th November, 1836.

That Michael McKinnie, their uncle, qualified as their guardian in 1840. That the mother of these children died in June, 1848, and shortly thereafter, just one month, Mary, without the consent of her uncle and guardian, mai'ried Burwell R. Perry, the appellee, Louisa R. continuing to reside with her guardian.

That on the 26th April, 1855, the said Louisa being in very bad health, and in expectation of immediate dissolution from pulmonary consumption, made the testamentary instrument which is the subject of litigation here. That on the 30th April, 1855, she died, at the house of her guardian, McKinnie, and leaving an only sister, the said Mary Perry.

The will was propounded for probate by the said Michael McKin-nie, the uncle and guardian of testatrix, and principal beneficiary under said will, and admitted to record in common form in the Probate Court of Panola county.

On the petition of appellees, the Probate Court directed an issue of devisavit vel non to be certified to tbe Circuit Court of said county, to be tried there; and the jury having found a verdict against the validity of said will, in the said Circuit Court, the Probate Court entered a decree accordingly, from which decree this appeal is taken.

The errors mainly relied on by counsel for appellants are, 1st. The following instruction, given by the court on the trial below, at the request of appellees, viz.: “the law watches with jealousy transactions between guardian and ward; and if the jury believe from the evidence, that Louisa McICinnie made a will in favor of her guardian, whilst the relation of guardian and ward subsisted, the circumstances must demonstrate full deliberation on the part of the ward, and abundant good faith on the part of the guardian, or they must find against the will.” And 2d. That the court erred in rejecting the answer to the fifth interrogatory, propounded on the part of appellants to Mrs. Hibbler.

The point to be considered, is the existence of “ undue influence,” as affecting the legal capacity of the testator.

It is conceded on all sides, that where “ undue influence” is established, as operating on the mind of the testator, and influencing the exercise of free volition, that, in legal contemplation, it destroys testamentary capacity. The law does not always require the production of direct and positive proof of the existence of acts or facts, upon which to found its judgments.

It does not always require circumstantial proof even, as the basis of its conclusions : deriving its principles, often, from human experience of human motive and conduct, it infers or presumes the existence of one from the proof of the other.

Indeed, the elementary writers on the law of evidence, abound with illustrations of legal presumptions, which are even conclusive and indisputable; founded in the philosophy of human experience, “and not, therefore,” peculiar to the municipal law, but shared by it, in “ common with other departments of science.” Such are estoppels; the verity of records; the incapacity of infants and married women; the due execution of ancient deeds. The rule of law in these eases is not a rule of inference, from testimony, but a rule of protection, as expedient for the general good. 1 Greenleaf Ev. 20, ch. 4.

This doctrine of presumptions of law, furnishing e^ence of'thé

existence of unknown facts from the proof of others, tnelK^nown^ concomitants, is universally and safely applied by courts of law, even where human life is involved. Thus every killing of a human being is presumed to be malicious, and consequently murder, until the contrary appears. The attempt to escape is á strong presumption of guilt, &c. These presumptions of law are sometimes conclusive in civil cases, sometimes only prima facie, or disputable; but in either case, courts act upon them as readily, in the absence of testimony to the contrary, as upon the most direct, positive, and conclusive proof per testes.

If, therefore, the law, upon grounds of great public policy, utility, or necessity, presumes the existence of “undue influence,” from the known confidential relations of guardian and ward, client and attorney, principal and agent, physician and patient, trustee and cestui que trust, and others, the unknown fact, thus presumed in law, is just as potential as proof; as though it had been thus established by the most competent testimony.

Let us therefore inquire whether, from the known existence of the relations of guardian and ward, the law does in any, and what cases, presume “ undue influence,” or fraudulent or unconscientious conduct on the part of the guardian towards his ward, or towards others having claims on her bounty. And first, we will examine the doctrine, in reference both to its origin, and the reason upon which it is founded.

As early as the seventeenth century, the cases are numerous in which it has been held, that parties standing in the relation of guardian cannot become the beneficiaries of their ward’s bounty.

In the case of Hatch v. Hatch, 9. Vez. Jr. 292, a conveyance by a ward to her guardian, was set aside on grounds of public policy. The attorney-general, after stating this rule, cited Cray v. Mansfield, 1 Vez. Sen. 379; and Pierce v. Waring, cited in the same case. Hylton v. Hylton, 2 Vez. Jr. 547, where Lord Hard-wicke expresses, in strong terms, the jealousy of courts in such cases. Osmond v. Fitzroy, 3 Pr. Wms. 129; and The Duke of Hamilton v. Lord Mohun, 1 Pr. Wms. 118. The Lord Chancellor, Eldon, said, in reply, “ In Welles v. Middleton, in the House of Lords, in 1785, where Lord Thurlow’s decree was affirmed, all these cases relating to trustees, guardians, attorneys, &e., were much considered, and the rule very strongly laid down by Lord Thurlow.” In delivering his opinion subsequently, in the same case (Hatch v. Hatch), Lord Eldon said, “ This case proves the wisdom of the court, in saying it is almost impossible, in the course of the connection of guardian and ward, attorney and client, trustee and ces-tui que trust, that a transaction shall stand, purporting to be bounty, for antecedent duty. There may not be a more moral act, one that would do more credit to a young man beginning the world, or afford a better omen for the future, than if a trustee, having done his duty, the cestui que trust talcing it into his fair, serious, and well-informed consideration, were to do an act of bounty like this. Hut the court cannot permit it, except quite satisfied that the act is of that nature, for the reason often given.” He adds, “that in discussing whether it is an act of rational consideration, an act of pure volition, uninfluenced, that inquiry is so easily baffled in a court of justice, that instead of the spontaneous act of a friend, uninfluenced, it may be the impulse of a mind misled by undue kindness, or forced by oppression. . . . And therefore,” says he, “ if the court does not watch these transactions with a jealousy almost invincible, in a great majority of cases, it will lend its assistance to fraud.”

And although the deed had been executed for more than twenty years, in this case he set it aside.

In the case of Morse v. Royal, 12 Vez. Jr. 355, Lord Chancellor Erskine says: “ One class of cases is that of contracts, that may be avoided, as being contrary to the policy of the law, which are interdicted for the wisest reasons. Of that kind is a deed of gift obtained by an attorney, while engaged in the business of the author of that gift; a deed by an heir, when of age, to his guardian, &c. The most remarkable case,” says he, “ is Welles v. Middleton, in which Lord Thurlow said, Middleton deserved to be, and under other circumstances might have been, an object of that party’s bounty; but the deed taken by an attorney, while he was the attorney of the party, could not be supported without striking at the root of property.” Ib. 372.

So, in the case of Ormond v. Hutchinson, 13 Vez. Jr. 47, Lord Chancellor Erskine holds this language: “ The principle upon which the court acts in these cases, in giving relief, is plain, and I think not new. The jurisdiction is most beneficial, proceeding principally upon those confidential situations in life, in respect of which this court assumes a guardianship over mankind.” Commenting on the case of Welles v. Middleton, so often cited, he says: “ The case had no ingredient of fraud; but the deed was an instrument, which the policy of the law would not sustain; and it was necessary to set it aside, upon the relation of the parties. . . . The defendants had not done anything immoral, or dishonest; but the principle of that decision was the policy of the law, founded on the safety and convenience of mankind; a shield against advantages taken by persons, in situations of confidence, preventing acts of bounty, which, in other situations, might have effect.

“ The case of Pierce v. Waring,” he adds, “is another authority in the particular instance of a guardian. There would be no bounds to the crushing powers of attorneys, and persons having confidential communication, when no other person is present. That case did not turn upon advantage taken in the particular instance ; but upon the general rule, that the transaction should not take effect.”

So also, in the case of Wright v. Proud, 13 Vez. Jr. 137, Lord Erskine, speaking of the cases of confidential relation, having just named that of guardian and ward, said : “ In Lady Sanderson’s case, all these cases were considered; and Lord Hardwicke would not permit the transaction to stand, even after the relation had ceased, as it took place under undue influence. So, independent of all fraud, an attorney shall not take a gift from his client, while the relation subsists; though the transaction may be not only free from fraud, but the most moral in its nature. The judgment in Welles v. Middleton, went wholly beside anything that could affect moral character.”

Again, in the case of Huguenin v. Basely, 14 Vez. Jr. 299, Lord Eldon again reviews the cases, and places his decision on the ground of public utility. And also in Wood v. Bownes, 18 Vez. Jr. 127, the same doctrine is asserted by the same chancellor.

In Montesquieu v. Sandys, 18 Vez. Jr. 313, Lord Eldon states the rule thus : “ That an attorney shall not take from his client a gift or reward while standing in that relation, the connection between them subsisting, with the influence attending it; though the transaction may be as righteous as ever was carried on; that the connection must, as in the instance of guardian and ward, be bona fide dissolved, before he can take anything beyond his regular fees.”

The case of Hylton v. Hylton, 2 Vez. Jr. 548, was a case of guardian and ward. It was the grant of an annuity by the ward, to his uncle and guardian. The lord chancellor, Hardwicke, in delivering his judgment, decares that “where a man acts as guardian or trustee, in nature of a guardian, for an infant, the court is extremely watchful, to prevent that person’s taking any advantage, immediately upon his ward or cestui que trust coming of age, and at the time of settling accounts or delivering up the trust, because an undue advantage may be taken. It would give an opportunity, either by flattery or force, by good usage unfairly meant, or by bad usage imposed, to take such advantage; and, therefore, the principle of the court is of the same nature with relief in this court, on the head of public utility, as in bonds obtained, from young heirs, and rewards given to an attorney pending a cause, and marriage brocage bonds. All depends upon public utility; and, therefore, the court will not suffer it, though perhaps in this particular instance there may not be an actual unfairness. Upon that ground I went in the case cited (Pierce v. Waring), in which I have added at the end of my note taken at the hearing of the cause, “ to be absolutely set aside, being between a guardian and Ms ward, just come of age, and on reason of public utility.” See Waring’s ease, cited and fully stated in note to Hamilton v. Mohun, 1 Pr. Wins. R. 120.

I will only cite one other English case, and that is the case of Welles v. Middleton, reported in 1 Cox’s Cases, 112-125; and also in 4 Brown’s Pari. Cases, 245 (case 18). This case deserves consideration, not only from the fact that it has been cited and regarded in the subsequent cases as of the highest authority, but more especially because the reasoning employed, and principles asserted in the luminous and able judgment of Lord Thurlow, were affirmed upon a most full and thorough examination of the cases, upon appeal, by the House of Lords. This was a bill filed to set aside deeds alleged to have been fraudulently obtained from the grantor by the defendants. The court, however, in determining the case, place their judgment not on any ground of fraud, but upon the same great principles of public' policy and utility, which had been previously announced in the cases cited.

Lord Hardwicke says : “ It has been argued, as if it was necessary to establish, an incompetency in this man, that rendered it impossible for him to convey; but this is not so. There are many instances where this court is obliged to act for the preservation of mankind. The presumptions arising, must be at least refuted by the strongest evidence.'” .... The case of Woodhouse v. Shepley 2 Atkyns, 535, was of this kind; nothing could be fairer ; but the court decided on general principles ; and could not permit a marriage to be the foundation of such a contract. What is the case of expectant children, anticipating gifts by sales ? They go upon general ideas. So the cases of trustees and guardians; and so of attorneys. The case of Pierce v. Waring, for instance. The court would not have set aside the gift in that case, but because it was a pernicious thing, that a man who had the relation of guardian, and the confidence that relation derives to him, should avail himself of the habits of intimacy and influence (the true, and honest, and just influence, as it is in itself), he might have on the mind of an infant, or child coming of age, to obtain from him a gift of that kind. In the case of attorneys, it is perfectly well-settled that an attorney cannot take a gift while the client is in his hands, nor instead of his bill. And there would be no bounds to the crushing influence of the power of an 'attorney, who has the affairs of a man in his hands, if it were not so; but once extricate him and it may be otherwise. The case of Proof v. Hems, Cas. Temp. Talb. 111, is in point; and though it was said there were other considerations in that case, it was decided entirely on the general principle. ..... I therefore set these deeds aside, entirely upon the grounds I have before stated, and without reference to the fairness of the characters of the defendants in any respect whatever.”

Indeed, I may conclude this review of the English authorities on th e reason of the rule, as applied to “transactions,” “deeds,” “conveyances,” “gifts,” “bounties,” with the single remark, that from the earliest case I have been able to examine (Scribblehill v. Brett, 4 Brown’s Cas. Pal. 144, decided in the House of Lords in 1703, on the same ground of public utility), I have found the current unbroken, and the principle on which they rest unchanged. That principle, as clearly stated in a note to t'he case of Welles v. Middleton, is, “ That a court of equity upon grounds of public policy will set aside any gift made by a ward to his guardian, during the continuance of the guardianship, or shortly thereafter, without any proof of actual fraud, upon the presumption of law that it was obtained by “undue influence.”

The American cases, though perhaps not so numerous, are abundant, and equally clear and consistent, as to the reason and policy of the rule. They seem inclined, however, to limit its extent, so as to make the legal presumption of “ undue influence” only prima facie, or disputable, by evidence proving to the contrary, and not conclusive.

I shall content myself on the general proposition I have been considering, to cite, as a summary of American law on this subject, the views of Judge Story in his work on Equity Jurisprudence, from which the charge mainly objected to was literally copied. The author, in the preceding chapter, had been considering the concurrent jurisdiction of courts of equity, on the subject of actual, intentional fraud. In the chapter before us, he is discussing the general doctrines of a court of equity, on the subject of constructive frauds. He says that, “ By constructive frauds, are meant such acts or contracts as, although not originating in any actual evil design or contrivance to perpetrate a positive fraud or injury upon other persons, are yet, by their tendency to deceive or mislead other persons, or to violate private or public confidence, or to impair or injure the public interests, deemed equally reprehensible with positive fraud, and therefore are prohibited by law, as within the same reason and mischief as acts and contracts done malo animo. Although, at first view, the doctrines on this subject may seem to be of an artificial, if not of an arbitrary character, yet, upon closer observation, they will be perceived to be founded in an anxious desire of the law to apply the principle of preventive justice, so as to shut put the inducements to perpetrate a wrong, rather than rely on mere remedial justice, after a wrong has been committed. By disarming the parties of all legal sanction and protection for their acts, they suppress the temptations and encouragements, which might otherwise be found too strong for their virtue.” 1 Story Eq. Jur. 289.

He then proceeds to “ consider the cases of constructive fraud, which are so denominated on account of their being contrary to some general public policy, or fixed artificial policy, of the law.” Among such cases he considers, “1st. Marriage brokage contracts,” &c. After considering this class, in § 307 (1 Story, 388), he passes to the consideration of those which arise from some peculiar confidential or fiduciary relation between the parties. “ In this class of cases there is often to be found some intermixture of deceit, imposition, over-reaching, unconscionable advantage, or other mark of direct and positive fraud. But the principle on which courts of equity proceed in regard thereto, stands independent of any such ingredients, upon a motive of general public policy; and it is designed, in some degree, as a protection' to the parties against the effects of overweening confidence and self-delusion, and the infirmities of hasty and precipitate judgment.” 1 Story Eq. Jur. 338, § 307, cited and approved in Taylor v. Taylor, 8 How. U. S. 199.

The author treats next of the relation of parent and child; then of client and attorney. Of this last relation, he says : “ The situation of an attorney, puts it in his power to avail himself not only of the necessities of his client, but of his good nature, liberality, credulity, to obtain undue advantages, bargains, and gratuities.” .“By establishing the principle, that while the relation of client and attorney subsists in its full vigor, the latter shall derive no benefit to himself from the contracts, or bounty, or other negotiations of the former, it supersedes the necessity of any inquiry into the particular means, extent, and exertion of influence in a given case; a task often difficult, and ill-supported by evidence, which can be drawn from any satisfactory sources.” And, in support of this, he cites numerous cases, many of which I have already referred to. And, in addition to these, the ease of Hunter v. Atkyns, 3 Myl. & Keen, 113, decided by Lord Brougham, in which the same doctrines are held. “ That if a person standing in these relations [to wit, to] client, ward, or cestui que trust, takes a gift or makes a bargain, the proof lies on Mm that he has dealt with the client, ward, &c., exactly as a stranger would have done, taking no advantage of his influence or knowledge, &e.”.“In a word, standing in the relation in which he stands to the other party, the proof lies on him, to show that he has placed himself in the position of a stranger.”

The author, in § 317, p. 354, comes to treat of the relation of guardian and ward. “In this most important and delicate of trusts,’’.says he, “ the same principles prevail, and with a larger and more comprehensive efficiency.” The relation of the parties imposes a general disability to deal with each other. “ But courts of equity proceed yet further in cases of this sort. They will not permit transactions between guardian and ward to stand, unless the circumstances demonstrate, in the highest sense of the terms, the fullest deliberation on the part of the ward, and the most abundant good faith on the part of the guardian.”

“For in all such cases,” says he, “the relation is still considered as having an undue influence upon the mind of the ward, and as virtually subsisting, especially if all the duties attached to the situation have not ceased.”

Undue influence then, as a presumption of law, creating, prima facie, incapacity to contract, is established, whenever the relation of guardian and ward is established ; and this upon general principles of public policy.

I am now to show that this doctrine is applicable to wills.

It would seem remarkable, in the first place, if it be true, that this doctrine has no application to wills; that in the labored research of the counsel (able, learned, and indefatigable, as they have shown themselves, in the preparation and argument of this case), they have been wholly unable to produce a single authority, ancient or modern, either from reported cases or text-books, showing this distinction. It would, indeed, be wonderful, if the great jealousy of the courts, for more than one hundred and fifty years, on grounds of public utility and necessity, should have led them to be thus vigilant of “undue influence” over men, in health, in the full possession of their faculties — in matters of ordinary concern, and not in contemplation of death — involving the disposition of only a part of their estates — and yet in cases usually attended with mental and corporeal debility, in view of death — involving the disposition of all their estate — under circumstances calculated to stimulate the last efforts of the guilty agents of such “ influence” — no concern for those subject to the clangers of this confidential relation, should have been awakened.

Let it not be forgotten, that this doctrine is one of general application to relations existing among experienced adults, as well as infant wards ; to the relation of client and attorney, principal and agent, trustee and cestui que trust; and the force of this suggestion would seem to command respect. If it is on grounds of public policy that the law will presume “ undue influence,” when an attorney, or solicitor, has obtained from his intelligent adult client, in perfect health, a deed of gift, to himself and his children, for a large portion of his estate, would it not be a reproach upon its justice and consistency, should it refuse the same protecting principle of preventive aid to a female ward, and the natural objects of her bounty, in her last moments, because of the form of the conveyance? In the case of the adult, he lives to make complaint, to recover from the temporary incapacity which the law presumes to exist for his benefit, and to testify for himself to the outrage. In the other (the case of the ward), death seals the mouth of the victim, and secures immunity to the mercenary wretch, who profits by his fraud.

If the principle he irrespective of conduct or motive, of active participation or passive silence (as all the authorities, ancient and modern, with almost unbroken uniformity declare), what matters it, whether the form of the conveyance be by deed or will ? There is no more necessity for active interference in the one case, than the other. But we are told, in the case of the deed, on which the eye of the grantee has never rested — of which he has no actual knowledge — in the execution of which there is no proof of fraud or procurement, “though the hand that receives it be ever so chaste” —still the law will presume that it was procured by “ undue influence,” and is therefore, prima facie, void, until the innocent grantee shall remove by proof, the suspicion which the relation of guardian to the donor, casts upon him : while, under the same relation, if you will change the form of the conveyance to a will, no such presumption arises.

As an humble agent, and votary of its precepts, I rejoice to believe that it can be shown, upon authority, that the law is not thus inconsistent; and to this I shall now address myself.

And first, among the elementary writers of highest authority, not only is no snob distinction taken, but tbe doctrine is directly applied to wills. It will be observed, by tbe careful reader, that in many of the cases already cited, as well as in tbe quotations from Judge Story, the language used is of tbe most general character, often adequate to embrace wills, as well as all other modes of conveyance ; and that in no instance has tbe distinction been taken, or made between them, by direct statement or adjudication. On tbe contrary, in all the adjudicated cases, and text-writers, to which my limited time has permitted me to refer, the case of Ingram v. Wyatt has been cited and approved as one of the leading cases, on this subject, since its determination. This was the case of a will, to which I shall presently advert.

In 1 Williams on Executors, 39, 40, the author says: “ In two important cases lately decided in the Prerogative Court, wills made by persons of sufficient capacity, but weak minds, have been set aside on the ground of ‘ improper influence.’ ”

The will, in one of these eases, was made in favor of an attorney and agent of the testator; and for this, Wyatt v. Ingram is cited as authority.

Lomax, in his work on Executors, alluding to the same cases, and using the same language above cited from Williams, adds: “ This doctrine has been much considered by the Lords of the Judicial Committee of the Privy Council, in England, in a late case; and it was assumed as a rule well established, in such cases, that the onus proiandi lies upon the party propounding a will under such circumstances.”

Mr. Greenleaf, in his treatise on the Law of Evidence, states the rule to be, “ that being under guardianship at the time, is prima facie evidence of incapacity, but open to explanation by other proof,” and cites for this, 12 Mass. 488, and Burd v. Pratt, 18 Pickering, 115, which was the case of a will, and presenting the identical question here involved. And to this case I will also refer in its order. See 2 Greenleaf Ev. 749, § 690. And again, the same author, 2 Greenleaf Ev. 730, nóte, it is said, “On proof of the signature of the testator, it will ordinarily be presumed that he knew the contents of the will, but this presumption may be repelled (among other circumstances) by proof of the character and interests of the person who wrote the instrument, and for this, Ingram v. Wyatt, and Paine v. Hall, 18 Ves. Jr. 475, already referred to, are relied on as authority.

So in Hill on Trustees, p. 156, it is said, “ Whenever, from the peculiar relations or connections of the parties, considerable authority or influence necessarily exists on the one side, and a corresponding reliance and confidence is placed on the other, a party will not be suffered to abuse this authority or influence, by extracting from it any advantage to himself.” . “ Indeed, in some of the cases, as for instance in dealings between guardian and ward, trustee and cestui que trust, or attorney and client, the transaction is, in itself, considered so suspicious, owing to the near connection between the parties, as to throw the proof upon the person who seeks to support it, to show that he has taken no advantage of his influence,” &c.

I will now refer to the case of Ingram v. Wyatt, so often cited in proof of this doctrine, 1 Haggard R. 384, 3 English Ecclesiastical R. 167.

In this case Sir John Nichol, in delivering his judgment in the Prerogative Court, after referring to the cases of Paske v. Ollat, 2 Phill. 323, and Ballinghurst v. Vickers, 1 Phill. 193, decided by himself, and saying that he saw no reason to depart from the opinions there expressed, proceeds to examine other authorities in support of the same doctrine. He says : “ By the civil law, if a person wrote a will in his own favor, the instrument was rendered void. That rule has not been adopted in its full extent by the law of England, which only holds that such conduct creates a presumption against the act, and renders nefféssary very clear proof of volition and capacity. Nor does the law of this court determine that the act is absolutely void, even though the person making the will is the attorney and agent of the testator. The suspicion is thereby increased, and for obvious reasons; the testator reposes confidence in his attorney, and is less on his guard against imposition, while the attorney, from skill and knowledge, is more likely to be successful in such a contrivance, and has more influence, so as to obtain a blind acquiescence. Courts of equity have in many cases set deeds aside, on. account of the relation of influence in the person obtaining, and of confidence in the person granting, the benefit; as in the cases of guardian and ward, attorney and client, agent and principal, and the like; more particularly attorney and client, as, for example, in Walmsley v. Booth, 2 Atk. 25.” After stating the circumstances of this case, he then cites the opinion of Lord Hardwicke in that case, where he said, “ It had been compared to the case of defrauding young and improvident heirs, where the court relieves on the general principle of mischief to the public, without requiring particular evidence of actual imposition upon them; and they are cases of general concern. They also give relief, because the circumstances and situation of young persons at the time of the agreement, makes them extremely liable to imposition.” •

It will be perceived that here, in case of a will, the cases and reasoning applied to deeds are cited and relied on, without reference to the supposed distinction assumed to exist by counsel for appellants.

The court, in this case of Ingram v. Wyatt, then proceeds to cite another case of a deed to attorney from client, Saunderson v. Glass, 2 Atk. 297. He cites also Cray v. Mansfield, 1 Ves. Sen. 379; Pierce v. Waring, and Oldham v. Sand, 2 Ves. Sen. 259; all cases of deeds, where, he says, the same doctrine is recognized.

“The cases,” says he, “show how extremely jealous the law is to protect the unwary against undue influence and control; when the relation of confidence exists, and where the party frames the instrument for his own advantage and benefit, every presumption arises from the transaction.To show that such has been the doctrine of this court at all times (because it is the doctrine of common sense and of sound justice), I will state a note of a judgment of one of my predecessors, Dr. Calvert, in the case of Middleton v. Forbes. After examining the facts of this case, and remarking on the difference in England, between the practice in the Chancery Court and the Prerogative Court on this subject, he concludes thus: This case shows where such grounds of suspicion exist, the evidence must be clear and decisive; it shows that it is not necessary to prove fraud and imposition, for the judge gave no costs, so that fraud was not proved, yet he pronounced against the will; it shows also, that though the parties may stand in a suspicious relation, and though there may be suspicious conduct, and some deficiency of capacity, yet satisfactory evidence of the factum, may establish the instrument; that the instrument is not, in law, invalid.’ ”

After examining the facts of the case then before him, in Ingram v. Wyatt, he concludes thus: “ The court, therefore, pronounces that the executor has failed in the proof of the will and codicil, but as actual fraud has not been established, I shall give no costs.”

From this judgment an appeal was prosecuted to the High Court of Delegates. And afterwards, upon a petition for a commission of review to the Lord Chancellor, Lord Brougham in refusing the petition, said, “The great admitted fact of suspicion, arose from the circumstance that the testator and the person to be benefited by his will, stood in the relation of client and attorney towards each other. This point the Court of Delegates had considered, and they were in the result satisfied that the other circumstances of the case were strong enough to rebut the presumption, which necessarily arose from that relation; and which presumption, if they had notbelieved it to he rebutted, would have given a contrary turn to their decision.” (See also to the same point, Parke v. Ollat, 1 Ecc. R. 273; Barry v. Batlin, 6 Ecc. R. 417; Darling v. Loveland, 7 Ecc. R. 98, Cases of Wills.)

The case of Breed v. Pratt, 18 Pickering, 115, to which reference has been made by Mr. Greenleaf, is equally clear and conclusive, and was also the case of a will, and between guardian and ward, and the opinion of the court is based upon the relation of the parties.

Shaw, C. J., delivered the opinion, and on this point said: “ Inasmuch as the relation of guardian and ward, places the person and property of the ward in the custody of the guardian ; where a will is made beneficial to the guardian, it is to be taken as strong evidence bearing upon the point of the mental capacity of the testator, and his freedom of will and of action; but it is to be taken as evidence which may be met, and controlled by counter-proofs. It is prima facie evidence of insanity, and incapacity to make a will; and, therefore, it is incumbent on those who would establish the will, to show, beyond reasonable doubt, that the testator had such mental capacity, and such freedom of will and action as are requisite to render a will legally valid.”

And so it has been held in Tennessee, in Patton, Exr. v. Allison et al. 7 Humphries, 332, also the case of a will, and strongly in point.

So also, in North Carolina, Downy v. Murphy, 1 Dev. & Bat. L. R. 92, in wbicb case Chief Justice Ruffin delivered the opinion of the court.

In both these cases the doctrine is fully sustained, that when wills are executed “in extremis, and under suspicious circumstances, unless those suspicions be removed by affirmative and plenary evidence, that the testator comprehended the dispositions made by him, and freely sanctioned them, the jury should find against the will.” These cases have reference to the fact that the drawer of the will was a beneficiary under its provisions, and that fact alone, in the case of Patton v. Allison, I Humph, was the circumstance of suspicion referred to.

In New York, as late as 1848, in the case of a will in favor of a physician, Crispell v. Dubois, 4 Barbour’s Supreme Court R. 393, the ease of Ingram v. Wyatt, is cited, and the opinion of Lord Brougham, just quoted, approved.

The last case to which we shall refer, is a very recent case decided by the Supreme Court of Georgia, Morris and wife v. Stokes, 21 Georgia R. 552. This was the case of a will by a ward, in favor of his guardian. Chief Justice Lumpkin, in delivering his able judgment in this case, considers the very question made here, as to the distinction supposed to exist between deeds and wills, and determines that “these adjudications are put upon the ground of public policy.” He cites, and comments with great force and clearness, upon the English cases, as to deeds affected by these confidential relations, and pertinently asks, “ was not this influence existing much more potentially while the ward of Lewis was still a minor, and the relation of guardian and ward still subsisted ? Will a deed made even after the ward has come of age, be set aside, and a will made during infancy not be questioned ? Counsel have submitted no authority to justify any such distinction. I have met with none.” On the contrary, he cites Ingram v. Wyatt, as evidencing the application of the doctrine to wills as well as deeds.

I therefore hold that the court did not err when it instructed the jury, “that the law watches with jealousy, transactions between guardian and ward; and if the jury believe from the evidence that Louisa McKinnie made a will in favor of her guardian, whilst the relation of guardian and ward subsisted, the circumstances must demonstrate full deliberation on the part of the ward, and abundant good faith on the part of the guardian, or they must find against the will.”

In our own court, in the case of Sullivan v. Blackwell, 28 Miss. R. 742, the spirit and even language of the doctrine above quoted from Judge Story, was applied to the case of a receipt executed to the guardian by the ward recently come of age. Though the point was not distinctly made in the case, yet the court said: “ Courts look upon settlements made by guardians with wards recently come of age, with distrust, and will not consider them binding unless made with the fullest deliberation, and most abundant good faith on the part of the guardian.”

2. Only one other point remains which, in my judgment, seems to require consideration; and that is, the exclusion of the declarations of the guardian made to the scrivener, Dr. Ilibbler, who drew the will.

Upon this point I have found myself much perplexed, as other inquirers have been before me, in the application of the rules, which elementary writers have labored in vain to render of practical and easy appliance in all cases. Indeed, it has been truly said, and seems to be admitted, both by the judges, in the reported cases, as ■well as the text-writers, that “ where declarations are admitted as part of the res gestee, there is hardly any distinct rule as to what will constitute the res gestee which will support such declarations.” (Parker, 0. J.) Pool v. Bridges, 4 Pick. 378. And in Allen v. Duncan, 11 Pick. 309, Shaw, C. J., referring to the case just cited, says: “ That it is difficult to lay down any precise general rule as to the cases in which declarations are admissible, as part of the res gestae, and when they must be rejected, as the mere assertions of the party.” Mr. Greenleaf, in concluding section 108, uses the language quoted by counsel, as authorizing the admission of these declarations ; but in the previous part of the same section, he admits the “ difficulty, if not impossibility,” of bringing this class of cases within the limits of particular rules; and cites to his relief, in the effort, the two cases above referred to, and other English cases. And the learned, able and laborious annotators on Mr. Philips’ work on Evidence, after a most extensive collection and review of the cases, English and American, on this subject, say: “It is difficult to lay down any precise general rule as to the cases in which declarations are admissible, as part of the res gestee;” and cite for this, also, O. J. Shaw and C. J. Parker, in the cases above referred to from 4 and 11 Pickering.

The inherent difficulty of the subject, and the necessity of refer/ring the decision of each case to its own particular circumstances, without the aid of “ any precise, general rules” to guide us in our judgment, would seem to commend, in these cases, a very cautious exercise of the revising power: for tribunals whose advantages are greatly superior to ours, in the ascertainment and minute comprehension of those particular circumstances which are regarded as giving illimitable variety and difficulty, on this subject, to the rules of decision, which should guide them, it would seem safer to defer much to their discretion.

Mr. Greenleaf, vol. 1, p. 137, § 108, in discussing this subject, says: “ The affairs of men consist of a complication of circumstances, so intimately interwoven, as to be hardly separable from each other. Each owes its birth to some preceding circumstances, and in its turn becomes the prolific parent of others; and each, during its existence, has its inseparable attributes, and its kindred facts, materially affecting its character, and essential to be’known, in order to a right understanding of its nature. These surrounding circumstances, constituting a part of the res gestee, may always be shown to the jury, along with the principal fact; and their admissibility is determined by the judge, according to the degree of their relation to that fact, and in the exercise of his sound discretion; it being extremely difficult, if not impossible, to bring this class of cases within the limits of a more particular description. The principal points of attention are, whether the circumstances and declarations offered in proof were contemporaneous withthe main fact under consideration, and whether they were so connected witFrETlis to illustrate its character.”

The admissibility of evidence is a question always addressed to the discretion of the court. “ In determining what evidence shall be admitted and weighed by the jury, and what shall not be received at all, a principle seems to have been applied, similar to that which distinguishes between conclusive and disputable presumptions of law, namely, the experienced connection between the situation of the witness, and the truth or falsity of his testimony. Thus, the law excludes, as incompetent, those persons whose evidence, in genera], is found, more likely than otherwise, to mislead juries.” 1 Greenleaf, 489, 440, § 32T.

And this is the principle by which courts of justice have regulated their judgments, and established general rules, as to the admissibility of evidence.

Keeping this principle, which lies at the foundation of all these rules, in view, I shall now proceed to extract, as far as possible, from the mass that is before me, the substance of the rules that seem to be established, in relation to the admissibility of declarations as part of the res gestee. ■

“ If the declarations are merely narrative of a past occurrence, they are inadmissible as proof of such occurrence.” 1 Greenleaf, § 110; and 2 Pothier, Mr. Evans’ Appendix.

If they are not the “natural or inseparable concomitants of the principal fact in controversy,” and so connected with the hypothe-"| sis they are introduced to establish, as to induce the belief that \ they are the mere result and consequence of the coexisting motives they are introduced to establish, they are equally inadmissible. 1 Greenleaf, § 100, p. 129; § 108, p. 137; 2 Pothier, 217.

Whatever expressions may be thus fairly regarded as naturally suggested by the coexisting motive, influencing the conduct under investigation, and obviously referable only to that motive and conduct, will be received in evidence.

Declarations, to be received in evidence as part of the res gestee, “must have been made at the time of the act done, which they are supposed; to characterize, and must have been well calculated to unfold the nature and quality of the facts they' were intended to explain, and so to harmonize with them, as obviously to constitute one transaction.” H&lmerjtJ., in Enos v. Tuttle, 3 Conn. R. 250. And this is the rule adopted by Cowen & Hill (2d vol. Notes to Phil. Ev. 586) “as the best” (note 444), and cited in note 2. 1 Greenleaf, 138, with many other authorities.

These declarations, as part of the res gestee, are only admissible in “subordination to other general rules, which govern in the admission of testimony generally.” “ All questions of evidence must be considered in reference to the particular circumstances under which it is offered.” 2d vol. of Cowen & Hill’s Notes, 601, citing 5 Barn. & Aid. 223, per C. J. Abbott.

These rules have reference to the action of the court in the exercise of its discretion, and are intended to aid the judge in determining whether, “from the experienced conviction,” between the situation and circumstances in which this guardian was placed at the time the declarations were made, and human conduct and motives under like circumstances generally, his declarations were most likely the natural or inseparable attendants of innocent ignorance, or cunning falsehood.

With this principle before us, let us inquire: First. What is the main fact in this case, to which the declarations here ruled out, by the court below, are naturally referable ?

The record must afford the answer. The subject, or main fact for investigation, to which these declarations are applicable, if at all, must be the conduct and motives of the guardian, in relation to the execution of the will in his favor.

Second. What are the declarations? The record shows that while this guardian was going with the scrivener, Hibbler, to the place where the will was to be executed, Kibbler ashed him “ if he knew how Louisa (the testatrix) wanted to make her will?” He replied, “ Nobut said he reckoned he might have known if he had asked her; but he presumed she wanted to make it over to her sister’s children. He said, “ he felt a delicacy in asking her; that he thought once that he would ask her, but his feelings so overcame him that he could not do it!”

Third. Were these declarations cotemporaneous with the main fact, and well calculated, obviously and naturally, to illustrate or prove his innocence, fairness, or abundant good faith, in relation to the provisions of this will? Or, on the contrary, do they not rather, under the circumstances in proof, more naturally and obviously suggest contrivance, design, and fraudulent pretence of good faith towards his ward, which his conscience whispered him he ought to have observed.

Were they “ cotemporaneous with the main fact, and so connected with it, as to illustrate its character ?”

The guardian and uncle was an old man, of very abundant means, surrounded by agents at his command, whom he could have readily employed as messengers, to send for Dr. Hibbler to write this will. Yet he went himself. Why ? He stated to Hibbler when he found him, that “ Louisa wished him to go and write her will.“ that Louisa did not want anything said about it.” Why this particularity? Why this concealment? Was it consistent with good faith on the part of a guardian ? Does it naturally excite no feeling of distrust ? He was afterwards (on their way to the place of its execution) ashed by Hibbler, “ If he knew how Louisa wanted to make her will ?” Why such a question? She had an only sister — only near relative. Without some suggestive circumstance, creating a doubt in Hibbler’s mind, the question was as unnatural as the answer. Let us see, now, if the character of this answer, is the natural, inseparable emanation of truthful sentiments, or is it unnatural, separable, and feigned ? Upon the supposition that he did know “ how Louisa wanted to make her will,” and in view of the utter destitution of “delicacy” subsequently evinced, when the will was read to him; what so natural as that the wretched spirit of avarice, which allowed him to accept the bounty of his dying niece, to the exclusion of her only sister, should have prompted him to feign ignorance of her wishes, and to desire secrecy, until death should seal the deed. He was interrogated; the declaration was not a spontaneous expression of natural feelings or sentiments accompanying, or even in reference to, any act or conduct of his, but it was drawn from him, in invitum. He was asked if he knew how Louisa wanted to make her will; he replied “ No !” but said he reckoned ! he might have known, if he had asked her, but he presumed she wanted to make it over to her sister’s children ! Why this presumption, if he knew nothing; if he had not conversed with her; if he were really ignorant of her feelings and intentions ? Why this unnatural presumption ?

11 He felt a delicacy” in asking her. “ He thought once, he would ask her, but his feelings so overcame him, that he could not do it.”

Let us further test, by the proof in the case, how far these declarations tend to induce the belief, that they were the “natural or mere result and consequence, of the supposed innocent, coexisting motives, which they are introduced to illustrate or prove. He speaks to Hibbler, in answer to his question, in the language of a tender-hearted woman. Was this natural to him? The record says not; but, “ stern” — “ determined” — “ strong will” — “firm”— “great force of character.” “But he felt a delicacy in asking her;” “ his feelings so overcame him that he could not do it.” And yet when, in the presence of his dying niece, that will was read to him, announcing, for the first time, the astounding fact that he was to be the principal and almost exclusive beneficiary of her bounty, to the exclusion of the indigent sister, that delicacy did not attend him. He not only withstood its influence, but his “feelings” did not even so far overcome him, as to repress a rude “ interference” with the wishes of his niece and ward, at the repetition of which the kind heart of his friend Hibbler revolted, and spoke out “ I raised my hand,” says he, in his testimony, “ and said, Mac, it is her will or wish.”

To my mind these declarations, under the circumstances, are not to be regarded as belonging to that class of “verbal acts” which are admitted in evidence as facts, such as the exclamations accompanying pain or injury; the expressions of joy or grief, or surprise or emotion, naturally attending, and emanating from, these exciting causes, and referable to it alone; or to the casual, unpremeditated utterance of the intentions, motives, or feelings, which give rise to, or accompany an act.

In all these cases, the declarations which the law regards as “ verbal acts,” are the natural effusions of one who speaks upon an occasion when there is no temptation to speak falsely.

These declarations, to be admissible, should not only be contemporaneous with the conduct in question, and so connected with it as to show its true character, but they must also be the natural effusions of a mind, under no existing temptation to speak falsely.

Declarations thus made, carry with them, to every mind, the sanction and assurance of truth; and hence are admitted as original evidence.

These declarations have no' inseparable concomitant act, with which they coexist, and from which they naturally flow. They are independent, original, forced from all necessary or natural conviction, by a direct question, which compelled him to confess his complicity, or to feign entire ignorance.

If their admissibility is to be determined by the judge, according to the degree of their relation to the principal fact, and in the exercise of bis sound discretion, as Mr. Greenleaf says, then I cannot doubt that such discretion was properly exercised, under the circumstances of this case.

Decree affirmed.

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Dissenting Opinion

HANDY, J.,

dissented as follows.

Not being able to concur in the views of this case taken by the majority of the court, I will very briefly state the reasons for my dissent.

The rule declared by the ninth instruction, given at the instance of the appellees, is, that when a will is made by a ward in favor of his guardian, whilst the relation of guardian and ward subsists, the circumstances must demonstrate full deliberation on the part of the ward, and abundant good faith on the part of the guardian, or the will must be condemned as having been obtained by undue influence by the guardian.

I consider this instruction as stating a rule not applicable to the case, and calculated to prejudice the validity of the will.

The rule has been established by numerous decisions, that in all contracts, dealings, and transactions between parties who stand in the relation of trust and confidence, and especially of dependence the.one upon the other, a benefit acquired by the party standing in the relation of trustee will be taken, prima facie, to have been obtained unfairly, or by undue influence; and the party claiming the benefit will be required to show that the transaction has been conducted with fairness and good faith. This rule has been frequently applied to dealings and transactions between trustee and cestui que trust, attorney and client, guardian and ward, and to many other cases, where especial trust and confidence were reposed, by the party from whom the benefit was derived, in the recipient of it, and where a state of dependence for counsel and direction, by the' former upon the latter, subsisted. In all such cases, it has been sanctioned as a rule of public policy, best calculated to protect the rights and interests of the unwary and confiding, against those whose positions enabled them secretly, and almost beyond the possibility of detection, to take advantage of those who were subject to their influence, and whose rights were in their keeping. Hence, it has been established as a rule of expediency, tending to promote the ends of justice, that such dealings or contracts shall not stand, unless sufficiently explained to show that no undue advantage was taken of the person from whom the benefit was obtained; and it is expressly held as an exception to the rule, that fraud and bad faith are not to be presumed.

The rule does not, however, prohibit such transactions, nor render them absolutely void, but only requires that their fairness shall be explained by the party who has conducted them; and it is founded on the just reason, that such a person ought to be able to show the circumstances and the propriety of dealings and transactions, to which he was a party, if, indeed, he has acted with propriety in them. Hence, nearly all the cases in which the rule has been applied, are those of dealings, transactions, or contracts, directly between the trustee, the beneficiary, and the party from whom the benefit proceeded. In'other cases, it has been applied where the beneficiary was the procurer of the benefit, the adviser or draftsman of the wills, or other papers, conferring the benefit— standing in a confidential relation to the other party, and therefore subjecting him to the same presumption of undue influence which applied to cases of direct dealings, and transactions of business, between parties occupying the relation of trust and confidence. We can readily recognize the reason and justness of the application of the rule to all such cases. They are transactions to which the beneficiary was a party; and if fair, were susceptible of being shown by him to be so. It was his duty, and within his power, in view of the rule governing his dealings, to take such steps in the transactions, as to be able to show that he acted with all due regard to the rights and interests of the party with whom it was conducted — to remove all suspicion as to the fairness of his conduct.

But when we attempt to apply the rule to cases where the parties have not dealt together, where no transaction has taken place between them, or where the beneficiary has not been active in procuring the act which conferred the benefit, it appears to be evident that the force of the rule fails. It cannot apply, because, not being a party to the transaction which conferred the benefit, it cannot with reason be expected, that, with any precaution, he could be prepared to explain the circumstances attending it. He cannot be required to explain a matter in which he had no participation, and which may have been done wholly without his knowledge. To apply the rule to such a case, would be almost inevitably to condemn the act absolutely, and that upon the unjust reason, that he acted unfairly in a matter to which he was not a party.

The most abundant good faith, on his part, was to have done nothing, and known nothing in the matter. Yet, in such circumstances, it would generally be impossible for him to show the facts attending the act, or which led to it; and hence his very good faith would render the act fraudulent and void, in legal presumption — which presumption must stand, because his very good faith renders it impossible for him to remove it by explanation. It appears to me, that any such rule cannot be justified by any reason of public policy. It is in opposition to the just rule, that fraud is not to be presumed. It would be to presume fraud, contrary to all principle; and, where the presumption must prevail from the necessity of the case, against innocence and the most perfect good faith, because of the impossibility of its being rebutted by reason of want of knowledge of, or participation in, the act done. And the rule, applied to cases of this sort, would lead to the most unjust and unreasonable consequences.

Take the ease of an autographic will, or of one attested by witnesses, who are all dead at the time of the testator’s death, made by a ward, and containing valuable bequests to his guardian, who is also nominated in it as executor. After the testator’s death, the will is found among his valuable papers, and as such, comes to the hands of the executor. It is his duty to propound it for probate. No knowledge of, or agency in, its preparation or execution, on his part, is shown; and yet he is met with the presumption, that it was procured by him by undue influence, which must be removed, or it stands condemned. How ip he to explain it ? Must he prove that he was not present, and did not participate in the act when it was done ? That might be true and yet it would not remove the presumption ; for he might have artfully and secretly pre-arranged the whole matter, absenting himself at the time of the execution of the will, to avoid suspicion. Something further must be shown; and that could not stop short of proof, that both in the matter of the execution of the will, and in all his conduct towards the testator, he had exerted no undue influence. It would, indeed, be most extraordinary, if such proof could be made, however unexceptionable may have been his entire conduct, and however free and unbiassed may have been the action of the testator, and however strong may • have been the feelings of affection and confidence on his part, which dictated the bequest. And this is the case presented by this record.

But suppose that the guardian was entirely ignorant of the fact, that the will had been executed. It would be impossible for him to show that, and most improbable that he could show the circumstances attending the execution of the will, demonstrating that it was the free and unconstrained act of the testator. In vain would he protest his ignorance of the entire matter, and hold up his general conduct as evidence of the propriety of his course. He cannot prove his ignorance, and very likely may not be able to prove his absence or want of participation in the matter. His very freedom from suspicious conduct, therefore, works the condemnation of the instrument, in rendering it impossible for him to explain the circumstances of its execution, of which he knew nothing. It is manifest, that such a result would be most unjust, and that the rule of presumption, and of the necessity for explanation, could not apply to such cases; because a will is the ex parte act of the testator, and not a dealing, transaction, or contract, between him and his guardian, in which the latter could be presumed to have had any agency. And yet such is the effect of the rule if it is applied to wills.

It is said, that the rule declared in this case is applicable to wills upon a high principle of public policy. But it appears to me to be clear, that the reason of public policy, upon which the rule is founded, has application only to dealings and transactions, in which the trustee or beneficiary is a participant; and that, to extend it to other cases, would be to presume a man guilty of fraud in a matter in which he is not shown to have had any agency. It cannot be that any reason of public policy could warrant so unjust and unreasonable a rule.

In most of the cases in which the rule has been held, the trustee has been a party to the deed, dealing, transaction, or contract. In others, be has been an active participant in the execution, of the instrument — its draftsman or procurer with full knowledge of its contents. It is with reference to such circumstances that it is said, in all the cases, that such deeds, transactions, dealings, or acts, are presumed to be invalid on the ground of public policy. This will be manifest, from an examination of the numerous cases cited to sustain the rule held in this case. And though, in many of the cases relied on as sustaining the application of the rule, to the case of a will made by a ward in favor of a guardian, there are loose observations which would include such a will, within the rule applicable to dealings and transactions between such persons, yet they are not cases of wills of wards, in favor of guardians; and in no such case, has the rule been held, that the will must be presumed to be fraudulent, from the mere fact of the relation of guardian and ward subsisting at the time of its execution, unless Ingram v. Wyatt, 1 Hagg. be such a case, and that has been expressly overruled in Barry v. Butler, 1 Curteis, 417. The loose dieta contained in the cases, certainly should not be held to establish a rule so unreasonable and unjust, as that declared in the instruction under consideration, and to give it the force of settled law.

The rule cited from 2 Grreenleaf Evid., upon the authority of the cases Stone v. Damon, 12 Mass. 488, and of Breed v. Pratt, 18 Pick. 115, has no application to this case. Those were cases of non compos, where a guardian had been appointed: and it was held to be incumbent on the guardian, who was the legatee, to show that the testator was capable of making a will; because having been once non compos, and being then under guardianship, the presumption of mental incapacity continued, until removed by proof.

It appears to me, therefore, to be clear, that this presumption cannot apply to a case like this; and I think that the true rule is, that the mere existence of the relation of guardian and ward, together with the fact, that the guardian is a beneficiary under the will, are circumstances to be considered by the jury, as tending to show undue influence on the part of the guardian in obtaining its execution, provided there be other evidence tending to show undue influence by the guardian, continuing at the time of its execution, destroying the free agency of the ward, and tending to show that the will was not the unconstrained act of the ward, and her free and voluntary will. But the existence of that relation is not sufficient of itself to condemn the will, or to render it incumbent on the guardian, to show that no undue influence, fraud or constraint, was employed by him in obtaining its execution.

The other question decided, is the incompetency of the declarations of McKinnie, the guardian, made to Dr. Hibbler.

It was proposed by the propounder of the will, to offer in evidence the declarations of 'McKinnie, made to Dr. Hibbler at the time McKinnie went for Hibbler to write the will, and on the same day on which it was written, whilst Hibbler was on his way to McKin-nie’s house to write the will; 'in which McKinnie stated, in reply to an inquiry of Hibbler, whether he knew how the testatrix wished to make her will; that he did not, but that he reckoned he might have known if he had asked her, but that he presumed she wanted to make her property over to her sister’s children, &c.

The object of this evidence was to rebut the circumstances relied on by the contestants of the will to show that its provisions were contrived by McKinnie, and pre-arranged by him before he went for Hibbler to write it; and that his applying to Hibbler to write the will, was but carrying out his purpose of securing the bulk of her property to himself, which he had planned, by means of his undue influence over his ward. And the question is, are these de-. clarations admissible for this purpose ?

The rule upon the subject is stated by Greenleaf to be, that “ declarations” of a party, whose conduct is material to the controversy, “made at the time of the transaction, and expressive of its character, motive, or object, are regarded as verbal acts, indicating a present purpose and intention, and are, therefore, admitted in proof, like any other material facts.” 1 Greenl. Evid. § 108. The learned Mr. Evans states the rule thus, “whenever the demeanor of a person at a given time, becomes the object of inquiry, his expressions, as constituting a part of that demeanor, and as indicating a present intention and disposition, cannot properly be rejected as evidence.” 2 Pothier on Oblig. by Evans, App. No. 16, § 11, p. 217. And again, he says, “ whatever expressions may be fairly regarded as resulting from contemporaneous motives, acting upon his mind, and influencing his conduct, should be received in evidence.” Ib. “In questions of fraud and bona.fides,” says the same author, “an adequate judgment can in general only, be formed by having a perfect view of the whole transaction, which, of course, includes the conversation which forms a part of it; and, according to the phrase usually applied to this subject, the language which is used on any occasion, forms a part of the res gesteeIb.

Applying these rules to the facts of this case, I think it clear that the declarations in question were admissible.

The matter in which McKinnie was engaged when the declarations were made, was the preparation and execution of the will; and the important question in the suit was, what were his purpose of mind and agency in procuring it, and the influence he exercised in obtaining its execution. These constituted the res gestee, the matter then being carried on, and the subject of controversy. The true character of the transaction, and of McKinnie’s conduct in it, must be ascertained from all that transpired at the time the business was being carried on. The hypothesis of the contestants of the will is, that he had pre-arranged its provisions, and was but carrying out his own wishes and purposes in having it written by Hibbler, his confidential friend and neighbor. The act of having the will written was begun, and McKinnie and the draftsman were together, on their way to his house where the testatrix was, to complete it. McKinnie was carrying out his alleged purpose of having the will written to suit himself, and to secure the property to himself. The question, then is, what were his designs, his feelings, and the state of his mind, whilst they were thus engaged in the business. These must be collected from all that he did and said whilst in the prosecution of the design. His declarations at the time touching the matter in hand, are inseparably connected with his acts, they are facts expressive of the character of the act, and of his motive, state of mind, and feelings in regard to it. They were made to his friend, whom he had selected, as is alleged, to carry out his purpose, and while he was in the very act of having it accomplished. They were, therefore, part of the very transaction then being carried on, and were admissible in evidence upon the same principle as his conduct and acts at the time. This appears to be evident from the rules as stated by the text-writers; and it is illustrated by the following, among the numerous cases decided upon the subject. Darly v. Rice, 2 Nott & McCord, 596; Boyden v. Moore, 11 Pick. 362; Allen v. Duncan, Ib. 308; Fellowes v. Williamson, 1 Mood. & Malk. 306 (22 Eng. C. L. Rep. 316); 15 Serg. & R. 231. And this conclusion is strengthened by the fact in this case, that part of the declarations of McKinnie were admitted, but those which operated in his favor were excluded, though made at the same time. The cases of Presley v. Quarles, 31 Miss. 151, and Scaggs v. The State, 8 S. & M. 726, are not opposed to this view. The former has no bearing upon the question, and the declarations involved in the latter case, were made after the act in question was completed and past.

It is no objection to the admission of declarations made under circumstances like these, as evidence in behalf of the declarant, that they are false and simulated. Eor how is that to be ascertained ? Certainly not by the court; for that would give to the court the dangerous power to exclude testimony merely on the ground of credibility. It must be determined by the jury upon consideration of the weight and credit due to the declarations under all the circumstances. In this respect, such declarations stand upon the same principle as admissions made by a party, all must be received, though the jury may discredit those which are favorable to the party making the admissions. So declarations made at the time of an act done and intimately connected with its execution, must be received in evidence as verbal acts, constituting part of the transaction; and it is for the jury to determine whether they are true or false, and to what extent they should be credited, and to give weight to them accordingly. Actions may he simulated as well as words; but it will scarcely be said that the acts of a person, done while engaged in any transaction, and having a direct connection with it, are not competent evidence as to the character and motives of his conduct, because they may be feigned. They are admissible in evidence, and their good faith, or falsehood, is to be determined by the jury.

Nor does the admission of such declarations rest entirely in the discretion of the court. It is sometimes a question to be decided by the court, whether the declarations were contemporaneous with the main fact done, or whether they are relevant to it, and to the question in controversy; and if not, the court has the right to exclude them for these reasons. But if they are made at the time the party whose conduct is the subject of consideration, was engaged in doing the act in question, and are plainly connected with it, indicating Ms present intention and disposition, they are parts of the transaction which the court has no more power to exclude than any other part of the res gestee.

I think it, therefore, very clear, that these declarations were admissible, and that it was error to exclude them.

And upon the grounds above stated, it is my opinion that the judgment is erroneous, and should be reversed.