6 Ga. 324 | Ga. | 1849
By the Court.
delivering the opinion.
This was an issue of devisavit vel non, originating in the Court of Ordinary of Troup County, to try the validity of an instrument purporting to be the last will and testament of James Potts, senior, deceased. That Court having decided in favor of the will, an appeal was entered, and the final trial had in the Superior Court of that County, before Judge Hill, in November, 1848. The Jury returned a verdict affirming the judgment of the Court of Ordinary, and declaring that the paper propounded, was the last will and testament of James Potts, senior, deceased.
The issue having been thus found against the appellant, after a long and laborious trial, his counsel has caused the record below to be removed to this Court, and now submits for its consideration and decision, numerous questions arising in the proceedings during the trial, all of which we propose to discuss, though not exactly in the order in which they have been presented in the pleadings and the argument.
It is alleged that the Court below erred—
1st. In holding that, on an appeal from an order of the Court of Ordinary, establishing a will, the burden of proof rests upon the executor, who is therefore entitled to go forward on the trial and open and close the argument.
After the testimony and argument had closed, the presiding Judge delivered a long and lucid charge to the Jury, in which the law relative to the capacity to make a will, and the employment of fraud and undue influence in obtaining it, were fully discussed, and various items of which are excepted to by counsel for the objectors.
It is contended that the Court erred—
1st. In assuming that the subscribing witnesses to the will had proven the three facts necessary to its validity, namely: capacity, execution and volition.
2d. In misstating to the Jury, that Thomas T. House, one of the subscribing witnesses to the will, testified, that he understood all that the testator said, and that, therefore, he was to be believed in preference to John R. Anderson and Blount C. Ferrell, the other subscribing witnesses, as to the execution of the paper; no such fact as the one here assumed appearing by the evidence.
3d. In instructing the Jury that a will, made through the medium of an interpreter, might he established without the oath of the interpreter.
4th. In applying the rule which discriminates in favor of affirmative over negative testimony, to the facts of this case.
5th. In affixing a legal discredit on the evidence of relatives, as such.
6th. In expressing great doubt as to the competency of certain testimony which had been admitted before the Jury.
I have endeavored, in this analysis of the case, to condense and simplify it as much as possible.
This subject has been frequently before the Courts, but no where perhaps so thoroughly, ably and philosophically handled, as by the late Judge Gaston, in Clary vs. Clary, (2 Iredell’s Law Rep. 78.) “The first opinion in the Court below,” says' the Judge, “ to which exception has been taken, is the rejection as evidence of the last clause of the deposition of John Beard, wherein the deponent stated, that he was impressed with the belief that, as to her mental faculties, Mary Clary was in the state called childish.’ To understand the import of this part of the deposition, it must be taken in connection with what precedes it. The substance of the entire deposition is, that the witness had no acquaintance with Mary Clary, other than such as resulted from one occurrence; that about the year 1826, eleven years before the execution of the deed in dispute, he visited her at Daniel Clary’s house, in consequence of a message from said Daniel, and for the purpose of writing her will; that he received her directions with respect to the disposition of her property, and wrote the will according to these directions; that he did not attest the will, but left it to be attested by others ; that at this time she appeared to him to be in good health, but he thought her intellect in the state they usually term childish. The objection to
“ It is certainly the general rule, that witnesses shall be examined as to facts whereof they have personal knowledge, and not as to those in regard to which they have no personal knowledge, but have only formed an opinion or belief. But this rule necessarily admits *of exceptions. There are facts which, from their nature, exclude all positive proof, because they are imperceptible to the senses, and of these no proof can be had except such as is mediate or direct. No man can testify, as of a fact within his knowledge, of the'sanity or insanity of another. Such a question, when it arises, must be determined by other than direct proof. The precise inquiry then is, must the evidence be restricted to the proof of other facts, coming within the knowledge of the witnesses, and from which the Jury may draw an inference of sanity or insanity, or may the judgment and belief of the witnesses, founded on opportunities of personal observation, be also laid before the Jury to aid them in forming a correct conclusion ? We are not aware of any direct and authoritative decision which supersedes the necessity of recurring to general principles and legal analogies to ascertain what is right.
“ In the first place, it seems to us that the restriction of the evidence to a simple narration of facts having, or supposed to have, a bearing on the question of capacity, would, if practicable, shut out the ordinary means of obtaining truth, and if freed from this objection, cannot, in practice, be effectually enforced. The sanity or insanity of an individual may be matter notorious and without doubt in a neighborhood, yet few, if any, of the neighbors may be able to lay before the Jury, distinct facts that would enable them to pronounce a decision thereon with reasonable assurance of its truth. If the witness may be permitted to state that he has known the individual for many years; has repeatedly conversed with him, and heard others converse with him; that the witness had noticed that in these conversations he was incoherent and silly; that in his habits he was occasionally highly pleased and greatly vexed without a cause ; and that in his conduct he was wild, irrational, extravagant and crazy; what would this be but to declare the judgment or opinion of the witness of what is incoherent or foolish in conversation; what reasonable cause of pleasure or resentment; and what the indicia of sound or disor
“We also think that there is an analogy in the investigation of" questions of this kind, and in the investigation of other questions wherein positive and direct evidence is unattainable, and in which the rule of evidence is well established. Of this kind are questions of personal identity and handwriting. Mere opinions, as such, are not admissible; but where it is shown that the witness has had an opportunity of observing the character of the person or the handwriting which is sought to be identified, then his judgment or belief, framed upon such observation, is evidence for the consideration of the Jury; and it is for them to give to this evidence that weight which the intelligence of the witness, his means of observation, and all the other circumstances attending" his testimony, may, in their judgment, deserve. And why is this, but because it is impossible for the witness to specify and detail to the Jury, all the minute circumstances by which his own judgment was determined, so as to enable them, by inference from these, to form their judgment thereon. And so it is in regard to-questions respecting the temper in which words have been spoken .or acts done. Were they said or done kindly or rudely, in good humor or in anger, in jest or in earnest % What answer can be given to these inquiries, if the observer is not permitted to state his impression ear belief? Must a fac simile be attempted, so as- <* to bring before'the Jury the very tone, look, gesture and manner, and let them collect thereupon the disposition of the speaker or argent?
It is a well known exception to the general rule requiring witnesses to testify facts and not opinions, that in matters involving questions of science, art, trade or the like, persons of skill may -speak not only to facts, but give their opinions in evidence. It is insisted that, by the terms of this exception, persons not claiming to possess peculiar skill, and all persons -upon matters not requiring peculiar skill, are excluded from giving opinions. Certainly the testimony rejected in this case cannot claim to be admitted under this exception, and as we understand the exception, it does exclude mere opinion in all cases other than those which are embraced within it. Professional men are permitted to testify to the principles and rules of the science, art or employment, in which they are especially skilled, as general practical truths or facts ascertained by long study and experience, and also may pronounce their opinion as to the application of these general facts, to the special circumstances of the matter under investigation, whether these circumstances have fallen under their own observation, or have been given in evidence by others.
“ The Jury being drawn from the body of their fellow-citizens, are presumed to have the intelligence which belongs to men of good sense, but are not supposed to possess professional skill, and
“ It has also been insisted, that there is a difference between the attesting witnesses to an instrument and other witnesses, as to their competency to express an opinion upon the capacity of the maker. Wherever such a difference has been intimated, it seems confined to cases of wills, in which it is said, ‘ the testator is entrusted to the care of the subscribing witnesses; that it is their business to inspect and judge of the testator’s sanity before they attest ; that in other cases, witnesses are passive, here they are active and principal parties to the transaction.’ Now, we can readily conceive why, prima facie, it shall be presumed, that witnesses thus engaged, are more observant than others on whom the duty of observation has not been thrown, and also the propriety of the rule which obtains on the trial of an issue of devisavit vel non, that all the attesting witnesses, if to be had, shall be produced and examined before the Jury. But we do not see, (and without sufficient reason or clear authority for such a distinction, we cannot
“ It has been also objected, that the witness whose belief or opinion of mental capacity was in this case rejected, had not the means of forming such a judgment thereon as was proper to be submitted to the Jury. Unquestionably before a witness can be received to testify as to the fact of capacity, it must appear that he had an adequate opportunity of observing and judging of capacity. But so different are the powers and habits of observation in different persons, that no general rule can be laid down as to what shall be deemed a sufficient opportunity of observation, other than that it has in fact enabled the observer to form a belief or judgment thereupon. So it is in the analogous case of hand-writings. If the witness declares that he has seen the party write, whether it has been only once or a thousand times, this is enough to introduce the inquiry whether he believes the papers produced to be the party’s handwriting 1 His belief is evidence, the weight of which must depend upon a consideration of all the circumstances under which it was formed. It may be that the judgment of the witness in this case, founded solely upon the occurrences in a single interview, and of which, notwithstanding the general impressions thereby created, he remembers no distinct, marked act of childishness or folly, would have weighedlittle with the Jury in determining the matter in controversy. But if belief of capacity, founded on personal observation, be evidence, and we think it is, it is admissible, whether the opportunity for observation has been frequent or rare. Whatever might be the weight of the rejected testimony, we hold that the plaintiffs had a right to insist on its being placed in the scales of evidence, and that there was error in the opinion which rejected it.”
This extract, we are sensible, has been extended to an unusual length, but it is a just tribute to its intrinsic worth, as well as to
In Morse vs. Crawford, (17 Vermt. Rep. 499,) Judge Bennett says, “ the law is well settled, and especially in this State, that a witness who is not a professional man, may give his opinion in evidence, in connection with the facts upon which it is founded, and as derived from them, though he could not he allowed to give his opinion, founded upon facts proved by other witnesses.”
So also in Lester vs. the Town of Pittsford, (7 Vermt. Rep. 158,) the Supreme Court of Vermont say, “Testimony of opinion may be given, where from the general and indefinite nature of the inquiry, it is not susceptible of direct proof. Thus, upon a question of insanity, witnesses not professional men, may be permitted to give their opinion in connexion with the facts observed by them. But this evidence is always confined to those who have observed the facts, and is never permitted where the opinion of the witness is derived from the representation of others. Upon a question of insanity, for instance, witnesses who have observed the conduct of the patient, and been acquainted with his conversation, may testify to h’is acts and sayings, and give the result of the observation.”
In Rambler and another vs. Tryon and others, (7 Serg. & Rawl. ’90,) the will of Michael Rambler was impeached on the ground of imbecility of mind of the testator, from his childhood to the Four of his death. The execution of the will was duly proved by the subscribing witnesses, who likewise attested the capacity of the testator — that he was of sound and disposing mind and memory. Witnesses were offered to prove certain facts tending to show an extraordinary dulness of understanding, followed up by the opinion of the witnesses, as founded on the facts, who had known Rambler intimately from his childhood to his grave, that he was incapable, from defect of understanding, to make a will. All this evidence was objected to, and the objections overruled and the evidence admitted. “I am at a loss,” says Judge Duncan, “to perceive any plausible reason to support this objection. I
In Gibson vs. Gibson, (9 Yerg. 329,) the Supreme Court of Ten-, nessee emphatically ask, “ How can a witness describe the dissociated and flighty conversation of a lunatic, the fear, the horror, the frenzy of his eye ? How communicate the influences which mind practises upon mind, if he must not speak of inferences, impressions or conclusions ?"
There is good reason, perhaps, why mere opinions should not generally be relied on as testimony. For even where witnesses are upright and honest, their belief is apt to be more or less warped by their partiality or prejudice, for or against the parties. It is easy to reason ourselves into a belief of the existence of that which we desire to be true; whereas, the facts testified to; and from which the witness deduces his conclusions, might produce a very different impression on the minds of others. But the wit
Had the Court admitted the testimony, at the same time instructing the Jury that the facts and circumstances, and not the opinions of the witnesses as to the soundness of Potts’ mind, or his capacity to malee a will, was the primary evidence upon which they must rely in making up their verdict, there might not have been just cause of complaint. But the witnesses on the part of the caveators were not permitted to testify at all as to their opinion or belief.' I have scrutinized closely the voluminous testimony adduced on the trial, and find, that in every instance, the facts only testified to by the witnesses, were allowed to go before the Jury, while the inferences derived from these facts were carefully excluded. It is not my business to say what weight this portion of the evidence ought to have; it is sufficient at present to say, it ought to have been received. Mutilated as it was, its force and effect must have been greatly weakened.
In addition to the general objection to the charge as to capacity and undue influence, the consideration of which we shall reserve to the close of this opinion, several specific grounds of error are assigned, i. e. that the Court erred—
1st. In assuming that not only the execution of the will was shown by the subscribing witnesses, but likewise the capacity of the testator and the freedom of his volition..
The Legislature of North Carolina have passed a Statute which requires the Judge “ to state, in a full and correct manner, the facts given in evidence, and to declare and explain the law arising thereon,” at the same time forbidding him “ to give an opinion whether a fact is fully or sufficiently proved — such matter being the true office and province of the Jury.”
It is not my purpose to discuss the wisdom and expediency of such a law. It is based upon the presumption that the declaration of the Judge’s opinion on the proof of facts, in every case, encroaches on the proper functions of the Jury, and that in every case it imparts a bias to the judgment of the Jury, which they are disposed to receive with confidence and seldom malte an effort to resist. I would take the liberty of suggesting, however, that the general diffusion of knowledge and education among the people of this country, much better fits them for weighing and comparing the evidence, than in any other nation or age since the institution of trial by Jury.
2d. It is complained that the Court misstated to the Jury, that Thomas T. House, one of the subscribing witnesses to the will, “ testified that he understood all the testator said,” and that, therefore, he was to fee believed in preference to John R. Anderson and Blount C. Ferrell, the other two suhscrihing witnesses, as to the execution of the paper. It is possible that this witness did so testify, inasmuch as the fact is twice stated by the presiding Judge. If it be so, however, then the record before us does not contain a true narrative of what transpired on the trial. Strictly,
I am compelled in candor to confesfe, that so far as my investigation has gone, there is a great dearth of authority upon this particular point; and I am the more astonished that it should be so, as the case must have been one of frequent occurrence. Reason would seem, however, to dictate that where there is no other medium of communication between the writer of a will and the testator, except the interpreter, that either at the time, or subsequently, he must be sworn, before the will could: be established. I find this dictum, in Bacon’s Abridgement: “ So if he that writes the will cannot hear the party speak, and another that doth stand by the sick man tells him what he says, in this case, if there be nono others present to prove that he repeated the very words of the sick man, this will be no good will of the land.” Vol. 7, p. 307, letter D. In Gongales et al. vs. Gongales, (13 Lous. Reps. 104,) the Supreme Court of Louisiana held, that a will dictated in Spanish, the native tongue of the testator, and a memorandum thereof taken down in the French language by the Notary, which was, read to the testator and approved by him, as expressing his intentions, and afterwards drawn up in the English language,, of which the testator is ignorant,, but signed by him, the Notary and
It is readily conceded that the exact point decided in these cases, is not that which is embraced in this record. The principle enunciated from the authorities is the same, namely: that the. paper propounded for probate must be sufficiently and satisfactorily shown to be the last will and testament of the testator; and the familiar maxim is, eadem est ratio, eadem est lex.
While it is certainly true, as suggested in the charge, that a man does not forfeit the right to make his will, because he has lost the power of speech, still, wills and testaments, whether or not they be the mere creatures of municipal law, as maintained by
While it does not matter, then, on what material or stuff, whether on paper or parchment, nor in what language, whether in Latin, French or Dutch, or any other tongue, or in what hand or letters, whether in secretary hand, Roman hand, or Court hand, (which I understand means an illegible hand,) or in any other hand, a will may be written, still it must appear to be the will of the testator, and on failure to make that proof, it cannot be executed.
We hold, therefore, that if a negro interpreter, incapable by law of being sworn, is the only channel of communication between the testator and writer of the will, and there be no other evidence of the testator’s knowledge of its contents or his assent thereto, than that which is derived through this medium, the will cannot be executed.
We will now, in conclusion, examine some of the general doctrines involved in the charge respecting wills; and I must say, His Honor, Judge Hill, discharged this portion of his arduous functions with equal skill and perspicuity, and we are not prepared to say that he underrated the degree of testamentary capacity necessary to make a will, in maintaining that imbecility of mind did not disqualify, provided it stopped short of idiocy or lunacy. Before investigating this case, I had supposed that more capacity was required to make a will than I now find warranted by the authorities; and in remanding this cause to the Circuit
If the maxim be sound, that what is against reason, cannot be' law, one might, I think, well doubt the principle of this case,without being branded as a skeptic. I subscribe, however, to’ the doctrine, that it is not every man of a' frantic appearance and!
Not only is the greatest singularity insufficient to set aside a will, but it would seem that a mere glimmering of reason would be sufficient to sustain a will. Stewart's executor, Appellant, and Lispenard and others, respondents, 26 Wendell, 255. Alice Lispenard, the testatrix, was all her life, as it appears from the testimony, incapable of taking care of herself; and for the most part of it, had to be washed, nursed and put to bed, the same as a child. She had a vacant expression of countenance — a silly, unmeaning laugh, when spoken to. The carriage of her body was awkward and unnatural, and she dribbled at the mouth. She was not permitted to associate with company. Her food was put on a plate and handed to her, without asking her what she would have. When upwards of thirty-five years of age, she spent her time sitting at the window of the house where she resided, and would sit there, even when the shutters were closed, without speaking with any one. She would cry like a child, when the children of the familyin which sheboarded, refused to divide their candies with her. She could notbe taught the Lord’s Prayer, nor to read, much less, to write. The utmost length to which her education ever progressed, was to spell words of two syllables. At a later period of her life, the experiment was renewed, but the result attended with no better success ; this appearing to be the neglus ultra of her intellectual capacity. When her father, Anthony Lispenard, died, his will contained the following remarkable provision; with respect to his daughter Alice: “ And as it has pleased Almighty God, that my daughter should have such imbecility of mind, as to render her incapable of managing and taking care of property, my will further is, that she be allowed five hundred dollars for her maintenance, during her natural life.” Yet, notwithstanding all this array of facts, as summed up by the surrogate, (Campbell,) and this deliberate judgment of the father himself, who, above all others, was best acquainted with the character and mental condition of his unfortunate child — and made,too, ata period whenthere was nothingtohardenhisheartto wards his daughter, or alienatehis affections from her — her will, bequeathing an immense estate, was set up and established. The Court of Errors in New York, main
And I am constrained to say, after the most careful consideration, that these doctrines are in accordance with the authorities. Swinburne, one of the oldest, and perhaps still the best writer, upon this subject, says : (Part 2, §4.) “ If a man of mean understanding, neither wise nor foolish, but indifferent, as it were, between a wise man and a fool, yea, though he rather incline to the foolish sort, so that for his dull capacity he may be termed grossum caput, a dunce, such a one is not prohibited to make a testament, unless he be yet more foolish, and so very simple and sottish that he may easily be made to believe things incredible or impossible ; as, that an ass can fly, or that trees did walk, beasts and birds could speak, as it is in Æsop’s fables.” And Lord Coke defines a non compos mentis to be one who, hy sickness, grief, or other accident, wholly loseth his understanding. Beverly’s Case, 4 Reports, 123. Coke’s Lit. 247, a. And Mr. Senator Rerplanck thus eloquently discourses upon this subject, in the case already referred to in 26 Wendell :
“ Taking mankind, such as observation shows us human nature to be, can any other than this be a safe, prudent, just or politic rule % When we observe the strange incongruities of human character, the astounding mixture of sagacity and weakness in the same mind, ‘ the fears of the brave and the follies of the wise’— when literary biography shows us the discoverers of truth and the teachers of wisdom, like Newton and Pascal, suffering under
“ So again,' if we look around our own circle of acquaintance, every one must have known aged, blind or infirm persons, unfitted, by the state of their minds, or of their senses, for the-'management of any affairs, and from their necessary seclusion from the concerns of life, entertaining false notions, and mixing up' the past with the present. Yet these,-and such as these, may, by the aid of their friends and families, upon whom'they have a right to rely, and with a general understanding of their own interest, and the effects of their acts, make wills, conveyances, and other dispositions of property, which could not be set aside without gross and' manifest hardship and injustice.
“ To establish any standard of intellect, or information, beyond the possession of reason in the lowest degree, as in itself essential to legal capacity, would create endless uncertainty, difficulty and litigation — would shake the security of property, and wrest from the aged and infirm, that authority over their earnings and savings which is often their, best security against injury and neglect. If you throw aside the old Common Law test of capacity, then, proofs of wild speculations, or extravagant and peculiar opinions, or of the forgetfulness or the prejudices of old age, might be' sufficient to shake the fairest conveyance or impeach the' most equitable will. The law, therefore, in fixing the standard of positive legal competency, has taken a low standard of capacity'; but it is a clear and definite one, and therefore, wise and safe. It holds, (in the language of the latest English Commentator,) that, “weak minds differ from strong ones, only in the extent and power of their faculties; but unless they betray a total loss of understanding, or idiocy, or delusion, they cannot properly be considered unsound.” Shelford.
Again — not only are' eccentricity and imbecility no just ground®
Jacob Bennet, the testator, was between 90 and 100 years old, when he made his will, disposing of his negroes, (New York ! ! !) furniture and stock, on his farm. His will was executed — Chancellor Kent holding, that neither age, nor sickness, nor extreme distress, or debility of body, will affect the capacity to make a will, if sufficient understanding remains. He feelingly observes, that, “ it is one of the painful consequences of extreme old age, that it ceases to excite interest, and is apt to be left solitary and neglected. The control which the law still gives to a man, over the disposal of his property, is one of the most efficient means which he has, in protracted life, to command the attentions due to his infirmities. The will of such an aged man ought to be regarded with great tenderness, when it appears not to have been procured by fraudulent acts, but contains those very dispositions which the circumstances of his situation, and the course of the natural affections dictated.” Van Alst and others, vs. Hunter and others, 5 Johns. Ch. R. 148.
In Brunne vs. Molliston, (3 Wheat. 129,) Huston, J. said, “ That the decedent must be presumed to be competent to make a will, until the contrary is proved — that the presumption of competency is not destroyed, by any extremity of age, though it maybe weakened, where the testator is very old, and circumstances additional are proved; but taken alone, it matters not that the tes
One who is deaf and dumb from his nativity, is, in presumption of law, an idiot, and therefore, incapable of making a will; but such presumption may be rebutted; and if it sufficiently appears thathe understands what atestamentmeans, and has adesire to make one, he may, by signs and tokens, declare his testament. One who is not deaf and dumb by nature, but being once able to hear and speak, if, by some accident he loses both his hearing and the use of his tongue, then, in case he be able to write, he may, with his own hand, write his last will and testament. And if he be not able to write, then, he is in the same case with those who be both deaf and dumb by nature, i. e. if he have understanding, he may make his testament by signs, otherwise, not at all. Such as can speak, but cannot hear, they may make their testaments as if they could both speak and hear, whether that defect comes by nature or otherwise. Such as be speechless only, and not void of hearing, if they can write, may very well make their testaments themselves, by writing. If they cannot write, they may also make their testaments by signs, so that the same sign be sufficiently known to such as then be present. 1 Wms. Ex’rs, 2d Amer. ed. p. 15.
I would respectfully submit, whether, in this age of benevolence, I had almost said, of the revival of miracles, when, through the instrumentality of appropriate asylums, eyes have literally been given to the blind, and ears to the deaf, the resumption ought any longer to be against the testable capacity of mutes Í
I would only add, once more, that a man may be capable of disposing by will, and yet incapable to make a contract, or to manage his estate. To this point the authorities are numerous. I will content myself to cite one only. Mr. Justice Washington, in Harrison vs. Rowan, (3 Wash. C. C. R. 580,) charged the Jury, “ that it was not necessary that the testator should view his will, with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory, as will enable him to understand the business in which he is engaged, the property he means to dispose of, the persons who are the objects of his bounty, and the manner in which it is to be
James Potts, senior, the testator in this case, was about ninety years old; was rendered almost speechless by age and the loss of his health; was bedridden, and on account of his bodily infirmities at least, if not mental, rendered pretty much incapable of attending to and managing his ordinary business.
The case of Dew vs. Clark, is a striking illustration of that delusion, in relation to the act in question, which will defeat a will, while the testator in making it was sane in other respects and on all other subjects. The evidence showed, that the deceased was a sensible, clever man, conducting himself, in the ordinary transactions of life and his affairs, rationally; amassed a considerable fortune by his profession ; ‘his friends and acquaintances, some of them medical men, never considered or even suspected that he was deranged in his mind; yet it was shown that he labored un
If there be, then, a total deprivation of reason, from birth or subsequent calamity, whether permanently or existing only at the time of execution, the will is a nullity, however suitable and right the terms of its bequests, and with whatever good purpose and intentions it may have been made; but although the testator be not non compos, within the legal acceptation of the term, still, if he labor under delusion as to the special matter, he is not, in that respect, competent in the eye of the law. And while weakness of understanding is not, of itself, any objection in law to the validity of a will or contract, still, in connection with other circumstances, imbecility of mind, whether from age or disease, or any other-cause, maybe relied on to show that the particular will or agreement in controversy, was procured by fraud or undue influence; and less proof will be required in such case from him who alleges it.
On this subject, as on that with regard to capacity, n'o precise and distinct line can be drawn. Suffice- it to say, that the influence exercised must be an unlawful importunity, on account of the manner or motive of its exertion, and by reason of Which the testator’s mind was so embarrassed and restrained in its operation, that he was not master of his’ own opinions in respect to the disposition of his estate.
In the case of the will of Edward Campion, (Ex parte Fearon, 5 Ves. 633,) the Court of Delegates, consisting’ of some of the most distinguished Judges and Civilians in England, set the will aside, on the ground that undue influence had been exercised over the mind of the testator by his physician and house-keeper ; and Lord Roslym, being satisfied with their decision, reported against granting a commission of review. And in Hacker vs. Newburn, (Styles’ Rep. 427,) Rolle, C. J. held, that a will executed by a man in his last sickness, by the over importunity of his-
It is objected, however, in this case, that the testator was under the control of his slaves, and that this circumstance, if well authenticated, ought, ipso facto, to destroy the will. That while it is allowed to free white persons, whether kindred or strangers, to influence others, by proper means, to make their wills, yet that where this influence proceeds from slaves, it indicates such moral degradation as should induce the Courts, from motives of public policy, to avoid their acts.
As to the source whence this moral coercion comes, the law makes no discrimination, consequently we can make none. The testimony does not show that any improper intercourse existed, at the time the will was executed, or previously, between the testator and his slaves, err any of them; but had it been otherwise, and this will had been the result of that miserable infatuation, however shocking it might be to our sense of decency and propriety, and proper subordination on the part of our negroes,, still we dare not, on that account, impeach the will, unless the Legislature should see fit, in its wisdom, to abridge the right of the owner to dispose of his property for this cause. The only inquiry for Courts is, was the testator, from the infirmity of age or other cause, constrained to act against his will, to do that which he was unable to refuse, by importunity or threats, or any other way by which one person acquires dominion and control over another? If so, the validity of the will may be impeached; and it is wholly immaterial from what quarter this undue influence which destroys free agency comes, whether from a slave or a free white person. To set aside a will because it is capricious or unreasonable, or because the testator may have selected an unwor
The will of W. B. Farr was several times before the Courts of South Carolina, and its validity contested, among other grounds, because it was obtained by undue influence exercised over the testator by the executor, Dr. Thompson, and by a negro tvoman named Fan, and her son, Henry ; and that it was obtained by threats made by the same persons. Cheves’ Law and, Equity Reps. 37. 1 Richardson’s Law Reps. 80. 1 Spear’s Rep. 93. The proof showed that Fan was the paramour, and Henry the son, of the testator; that this woman had the influence over him of a white woman and a wife. He had a clock which he cursed and said he would not have bought it but for Fan ; promised to destroy a dog that killed sheep, but did not do it because she objected ; bargained for a negro, but would not buy till her pleasure was consulted; sold a negro girl at her desire, and made titles to another one that she offered for sale as her own, and when he had made the titles, said “he hoped she would now be satisfied, as there was no other woman left, he hoped he would have some peace.” One witness thought she had such influence that she could have had any negro sold that she pleased. At Christmas, 1835, Farr said he should not live long, and wanted to divide his property out among his relations equally. Fan said, “ what is to become of me and Henry V’ Farr said he would give her money enough to maintain her during her life, and she might go to a free State. She replied, “ before any of the Farrs should have any of the property she would lose her life.” Fan refused to let a servant come to him when called; they quarreled about it; she shook her fist in his face and threatened to knock his teeth down his throat; witness heard them quarrel in the night; heard her call Hannah, a servant, to bring her the whip and she would beat his skin off. They would get drunk together and she was insolent to him; told him to hush or she’d give him hell; cursed him for a d — ned rascal; rubbed her fist in his face and dared him to open his mouth; called him a d — ned old palsied rascal. Testator told Dawkins, that Fan had tried to kill him with a spear; she threw it at him and stuck it in the bed post; Fan was drunk and he made them make friends. Many other disgusting details
Judge Earle, in commenting upon this case, said, “ This phrase of undue influence, [so frequently resorted to in this country by disappointed relations, to avoid wills of persons on whom, while living, they had no claims, seems to me to be a modern innovation, and is not known in the English Courts. The true inquiry always is, whether there exists the animus testandi? The party therefore must be free, and under no compulsion from such threat or violence, as. may reasonably be supposed to move a constant man. Even in case of such constraint or fear, if when they are over, the testator confirms the will, it is made good. Applying the general rules governing such cases to that made by the proof, it will be very difficult to find the evidence either of threat or violence, of fear or compulsion, or of excessive importunity, extorting from the feebleness of age or disease, what it was unwilling tó .gralit^yet unable to withhold.”
A,n(J Judge* Evoiiis, -when commenting on the same will, many years afterwards, áai<|>, “ whenever the validity of a will is disputed; the naturabinquiry is, whether it is voluntary — whether it be conformable to the- wishes and previously declared intention of the testator‘and'according to the course of his affections 1' When a* sane man, with legal solemnities, executes a will, the law presumes, in the absence of proof to the contrary, that it was done voluntarily, and that it contains truly his wishes and intentions in relation to the disposition of his property. The burden of proof lies on him who alleges the existence of undue influence, and its exercise in the- procurement of the will. I have befoi’e said that Fan was greatly indulged*, and that she had some influence over the testator, arising out of her position, can scarcely be doubted. From this arose*her familiar mode of addressing him, her presumptuous claim* to be his wife, and her dominion over the servants and household affairs; but beyond these the evidence furnishes no proof of influence possessed or exercised, or attempted to-be exercised.”
It is true that the Jury uniformly found against the will, and that the Court finally .acquiesced, upon the principle that, where
It is only necessary to advert for a moment to the brief of the testimony in the case before us, to see how immeasurably short it .comes on the score of unjust control, of that which accompanied Farr’s will. John Hill testified that he visited the testator sometime before his death; that soon after he arrived at the house, two female slaves, one an old and the other a young woman, voluntarily took their stand on each side of the testator, and on them he seemed to rely for direction. Potts appeared to be very stupid and incompetent to transact any business. Jesse Kinsey swore, that Potts’ negroes did pretty much as they pleased, and 3ns principal house woman appeared to Z fluence over him — she was his iuterprej|^J7íbig^Kj¡^j^^m.ot only defective, but thinks there was a tmnarobtli of boaSyWd mental strength; he was inclined to be determined in carrying out his purposes;«i{rwas kmd?*ai!a md*lgent to his slaves, and they obeyed or much as they pleased. James Stewart, ;SWtiier witness' examined, stated that for several years before Potí§i^S^..^^tííSught him very much under the influence of his negro woman Lucy. 'The last visit that William Harris made to the deceased, a negro woman interpreted for him. Mrs. Jemima Slaughter did not think the testator capable of making a will, from his extreme old age, want of speech and memory, and the influence the negroes appeared to exert over him; that two of his women especially -seemed to have a great control over him in all his affairs; that she has heard him consulting with Lucy in relation to his business — who was a lively, talkative, saucy girl, who generally said what she pleased to her master without reproof. Cicero Lovelace, a medical practitioner of the botanic order, saw testator frequently a short time previous to his -decease; his grown negroes ■all appeared to exercise more or less influence over him ; on one
Now, when it is recollected, that the main purpose of this caveat is to set aside this will on account of a bequest in it to Alonzo P. House, the grandson of the testator, who resided in the State of Alabama, and between whom and the slaves of the deceased no intimacy, much less conspiracy, is proven to exist, we see nothing in the whole report of this case to justify the suspicion that any undue influence whatever was practised in the procurement of this will; much less such improj>er influence as should be allowed to invalidate it. That, however, will be a question of fact to be passed upon by another Jury.
Upon the whole case, we are satisfied that there was reasonable ground for prosecuting this writ of error; and that in view of all the circumstances, it would best comport with the ends of justice to order a new trial.