Neely v. Neely

| Pa. | Jan 19, 1851

The opinion of the court was delivered by

Lowrie, J.

In the case of Harden v. Hays, the signature of a deceased attesting witness to a will was proved, and as contradictory of the evidence inferred from the attestation, the opposite party was allowed to prove that the attesting witness had declared that the testator was not of sound mind at the time of executing the will. In the present case, the attesting witness is insane, and her signature has been proved by evidence of handwriting so far as to admit in evidence the note declared upon; and the defendant offered to contradict the effect of the evidence, by proving the declarations of the attesting witness in a lucid interval, that she never did attest the instrument. We discover no appreciable difference in principle between the two cases.

. Attestation amounts to a mere declaration by the witness, that he saw the instrument executed, and proof of the attestation is inferential proof of this declaration; and thus the mere declaration of a deceased person is admitted as evidence. Now it is manifestly right that the necessity, which admits such a declaration in favour of one party as to 'the fact of execution, should admit other, declarations of the same witness in favour of the other party as to the same fact, and as to all other facts that may be inferred from it. Aetori non Ucere debet, quod reo noñ .permittitur.

, It is entirely unimportant whether the declaration, sought to be given in evidence, relates to the attestation or to the execution; for the latter fact is inferred from the former one, and a declaration disowning the attestation impairs the inference of execution. A denial of the antecedent involves a denial of the consequent. The declaration is not received to contradict the evidence of the handwriting of the attestation; but to contradict the inferred .declaration as to the execution.

• This is not liable to the objection of being hearsay evidence; for the proof of the handwriting of a subscribing witness, is a substitute for the testimony of the witness that he attested the •instrument and saw it executed. If he had actually sworn to these facts, his testimony might have been assailed by proof that, .at other times, he had made contradictory statements. Much more it would seem might a mere declaration be met by a contradictory one. Succedit in onere, quod substituitur in re.

There was sufficient evidence that the witness had a lucid interval •to justify the court in leaving to the jury the finding of that fact.

Judgment affirmed.