20 Johns. 502 | Court for the Trial of Impeachments and Correction of Errors | 1822
The question to be discussed is, whether the nuncupative will of William Jones, as stated to have been made on the 11th of April, 1820, can be admitted to probate, as being valid in law. It becomes a complicated question, under the circumstances, and involves in the inquiry matter of fact, mixed with matter of law. I shall consider it to be my duty to speak frankly and freely on the whole subject of the case, but, at the same time, with a sincere respect for the character of the Court whose opinion is now under review, and from which I shall be obliged very greatly to dissent.
William Jones was an Irishman by birth, and a religious catholic by profession. He was bom in the county of Dublin, in Ireland, and received a school education about thirty years before his death, and which carries us back to the year 1790. He had then living, parents, brothers and sisters, and he was the youngest of the family. He was apprenticed to a house-carpenter in the city of Dublin, and served a regular apprenticeship of seven years. When this service expired, he worked as a journeyman, for nine oi* twelve months, and then emigrated to the United States. This brings us, in the history of his life, to the year 1798, and perhaps that fact may enable us to give some probable solution of the only circumstance that seems (if we except
These are the few and-imperfect sketches of his biography to be selected from the case, before we find him rich in the fruits of his enterprise, but sick with a disease of the liver, at the boarding-house of Mrs. Fox, in Cherry-street, in New-York, the latter end of March, 1820.
Jones, while at the. house of Mrs. Fox, claimed to be worth, altogether, 65,000 dollars, in property, existing in New-York, Philadelphia, Baltimore, and the island of Cuba ; and to show that this claim had pretty fair pretensions to truth, there was actually found at 1ns lodgings, at his death, bank books, showing deposits to his credit, in one or more banks of New-York, to between thirteen and fourteen thousand dollars.
He had been sick at Mrs. Fox’s about five weeks, when he is said to have made the will now tinder consideration. During that time, he had one Ellen Taylor, a coloured woman, for his hired nurse; and there was a Mrs. Hazleton, who had rooms, and boarded in the same house, who also acted as his nurse.
Whether Jones ever saw or heard of Mrs. II. before he came to board at Mrs. Fox’s, does not appear, nor have we
The will, as certified by the four witnesses, is in these words: “ 1 now say, as I have repeatedly said before, that I leave all the property I am possessed of to Mary Hazleton. I do this in consequence of the good treatment and kind attentions I have received from her during my sickness. She is worthy of it. No other person shall inherit my property. I wish you all in the room to take notice of this.”
This will carries marks of fraud on its very face. Let us examine it attentively. This sweeping donation is made, for what ? For good treatment and, hind attentions received from her during Ms sickness. The" sickness had lasted only five weeks, and it was not so bad but that he was able occasionally to ride out. No person apprehended any immediate danger. He had a hired nurse, a coloured woman, who was, by Mm, totally forgotten. What
[His honour here went minutely, and at large, into the examination of the testimony in the cause, and particularly of that of the four witnesses to the will, and observed, that from the ¡sature, the improbabilities, the inconsistencies, and
But, if we were to admit, against the truth of the fact, that the will of the 11th of April was actually and fairly made, according to the certificate of the four witnesses, it would then become a question of law whether it amounted to a valid nuncupative will.
A nuncupative will is defined by Perkins, (s. 476.) in his book, which was published under Henry VIII., to be properly when the testator " lieth languishing for fear of sudden death, dareth not to stay the writing of his testament, and, therefore, he prayeth his curate, and others, his neighbours, to bear witness of his last will, and declareth by word what his last will is.” So, again, in Swinburne, (p. 32.) whose treatise was published in the time of King James I., it is said, that this kind of testament is 'commonly made when the testator is now very sick, weak, and past all hope of recovery, I do not infer from these passages, that unwritten wills were always bad at common law, unless made In a case of extremity, when death was just overtaking the testator. In ignorant ages, there was no other way of making a will but by words or signs; reading was so rare an accomplishment in the earliest ages of the common law, that it conferred great privileges, and the person who possessed it was entitled, under the name of benefit of clergy, to an exemption from civil punishment. But these ancient writers mean to be, understood, that in the ages of Henry VIH., Elizabeth, and James, letters had become so generally cultivated, and reading and writing so widely diffused, that nuncupative wills were properly, according, to Perkins, and commonly, according to Swinburne, confined to extreme cases, and to be justified only upon the plea of necessity. And this has been the uniform language of the English law writers from that time down to this day, so that it has become the acknowledged doctrine, that a nuncupative will is only to be tolerated when made in extremis. Thus, in Ba
It appears to me, that these various writers must be satisfactory to every one, as to the true sense and, meaning of a nuncupative will under the English law. It is not easy to recur to more accurate sources. The probate of wills being in England a matter of ecclesiastical cognizance, cases on that point rarely appear in the reports of decisions in the Courts of common law. I have, however, been able to select two or three cases of nuncupative wills,.which I shall submit to the consideration of the Court.
Coles v. Mordaunt, (4 Vesey, 196. note.) was the case of a nuncupative will, in the 38th year of Charles II., and
The case 1 have .cited contains a monitory lesson: and it very much resembles, in its principal features, the one before us.
In Philips v. The Parish of St. Clements, Danes, (1 Eq. Cas. Abr. 404. pl. 2.) which was cited upon the argument, and arose in 1704, one Doctor Shallmer, by will, in writing, gave 200 pounds to the parish, and Prew, a reader in the church, coming to pray with him, he said, he gave 200 pounds more towards building the church, and died on the next day. This was a case of a nuncupative will, which only failed for want of three witnesses; but this testator was evidently in extremis. The particulars are not stated, except only that an officer of the church came to pray with him, and that he died the succeeding day ; but those two circumstances well warrant the inference.
There is a very close analogy between these nuncupative
Upon the strength of so much authority, I feel myself warranted in concluding, that a nuncupative will is not good, unless it be made by a testator when he is in extremis, or overtaken by sudden and violent sickness, and has not time or opportunity to make a written will. The statute of Charles II. so often referred to, and which we have literally adopted, requires a nuncupative will to be made by a testator in his last sickness, and in his own dwelling-house, or where he had been previously resident for ten days, unless surprised by sickness on a journey, or from home. The last sickness, in the purview of the statute, has been always understood, (for so I infer from the cases cited) to apply to the last extremity mentioned in the books, and it never was meant to uphold these wills, made when there was.no immediate apprehension of death, and no inability to reduce the will to writing. A case of necessity is the only case, according to Blackstone, in which any favour ought to be shown them. If they are alleged to have been made in a case unaccompanied with necessity, the presumption of fraud attaches to the very allegation. Let us suppose, by way of illustration, the instance of a person gradually declining under the operation of some slow paced disease, as the affection of the liver, or the consumption of the lungs, or the dropsy, or' the cancer. The patient is, himself, we will suppose, under no immediate apprehension of death, nor is any such alarm excited in others. He is comfortably seated in his chamber, in the midst of a populous city, and with ample means to command every kind of assistance. He has had a fair common education, and knows well how to read and write. He has been a man of good understand
If nuncupative wills can be permitted at all, in the. cases of chronic disorders, which malte silent and slow, but sure and fatal approaches, it is only in the very last stage and extremity of them. In no other period can such a disorder be deemed, within any reasonable construction of the statute of frauds, a man’s last sickness. Such diseases continue for months, and sometimes for years. In one of Captain CooZc’s voyages, he states, that he lost his first lieutenant, Mr. Hicks, near the conclusion of the voyage of three years, and almost within sight of the English coast. But, he adds, that as his disease was the consumption, and as it” existed when he left England, it might be truly said, that he was dying during the whole voyage. What would the law call that man’s last sickness ? Not the whole voyage surely, and, probably, it would be narrowed down to the last day, and to the last hour of his existence. We must give a reasonable interpretation to the statute, in reference to the mischief, and to the remedy. We cannot safely apply a man’s last sickness to the whole continuance of a pro-
There is one other consideration that imparts to this subject of nuncupative wills, a momentous character, and ought to incline us to give to them as little countenance as possible. As soon as a nuncupative will is made, it becomes the interest of the legatee that the party’s sickness should prove to be his last sickness; for if he recovers, the will, of course, falls to the ground. Not so with a written will. That remains good until revoked, and it cannot be revoked but by writing. Let us, for one moment, pause over this consequence of nuncupative wills, and observe with what a deleterious influence they must suddenly act upon the heart, and what a powerful appeal they at once make to the selfish and dark passions of the human mind. The title of the legatee depends altogether upon the precipitate death of the testator. Every day that his life is prolonged, more and more impairs the character of the will, and it vanishes if he becomes convalescent. Suppose the testator was understood to possess a large amount of cash in hand, and that he gives it all, by a nuncupative will, to a stranger, to whom the law would not have given it. Suppose that stranger to be his physician, or as, in the present case, his nurse, what hold has the testator on her fidelity, her kindness, or her integrity ? Her interest and her wishes, (if indeed her wishes procured the will,) must be to destroy, and not to heal her benefactor. The legacy operates as a bounty upon his death. One cannot contemplate a nuncupative will under this aspect, without sensations of horror. Well might such a man exclaim, as Jones is said to have done, repeatedly, “ My life depends upon that woman”
I am accordingly of opinion, both upon the law, and upon the fact, that the decree of the Court of Probates, directing the nuncupative will of William Jones to be admitted to probate, was erroneous, and ought to be reversed; and that the decree of the Surrogate of the city and county of Jfeie
Spencer, Ch. J. said, that he concurred in opinion with the Chancellor, that the decree of the Court of Probates ought to be reversed, on the ground, that the alleged nuncupative will was not made while the testator was in extremis; and because it appeared, from all the evidence in the case, that when the alleged will was made, he did not think himself, nor did any other person think him to be in any immediate danger of dying; and because there was ample opportunity to make a will in writing, had the supposed testator been so disposed.
Platt, J. said, that be fully concurred in the opinion of the Chancellor, both on the law and the fact.
This case comes before the Court on. an appeal from the decree of the Court of Probates, by which it is adjudged, that the nuncupative will of William Jones, deceased, having been duly proved, be admitted to probate, and that letters of administration, with the will annexed, be issued thereon.
I will examine this cause in the following order;
1. What are the facts necessary to constitute a valid nuncupative will ?
2. Does the testimony satisfactorily prove the making of such will ?
The act concerning wills, declares, “ that no nuncupative will shall be good, where the estate thereby bequeathed shall exceed the value of 75 dollars, unless the same be proved by the oaths of three witnesses, at the least, who were present at the making thereof; nor unless it be proved, that the testator¡ at the time of pronouncing the same, did bid the persons present, or some of them, bear witness, that such was his will, or words to that effect; nor unless such nuncupative will be made in the time of the last sickness of the deceased, and, in Ms
The requisitions of this act must be satisfied; there is such perfect perspicuity in the language made use of, that if doubts existed as to the law, previous to the passing of the act, none can remain at the present day. If the statute is so plain, as to be incapable of misconstruction, then, without reference to the law previously in force, it must be carried into effect, according to the intention of the legislature. If it gives a new rule, that rule must be observed. In such cases, no consequences are to be regarded in the construction. (6 Bac. Abr. 392.) On the other hand, if a statute makes use of words, the meaning of which are well known at the common law, the words shall be understood in the same sense ; and hence it frequently becomes necessary to know, what the common law was before, and what the mischief was, for which the common law had not provided. These general remarks may be considered not inapplicable, in examining the soundness of the legal objections made by the appellant’s counsel. It is contended, that admitting the respondents’ witnesses have testified truly, they do not make out a case within the act. The objections are, first, that “ last sickness” means sudden illness, when the testator is in extremis, and in the immediate prospect of death; and, secondly, that the will is void, because. no executor is named. To guard against impositions and forgeries, in setting up nuncupative wills, the statute was passed, and has imposed several salutary restrictions. In discussing the first objection, it will be useful to inquire, how the law stood before the passing of the act. If we can ascertain the common law exposition of “ last sickness,” I admit it will go far to show how the statute is to be understood. If no light can be derived from the common law in explaining these
The doctrine in relation to nuncupative wills, is derived from the civil law, and is of very ancient date. (Cowp. 90.) It was incorporated into the system of the common law, and acted upon, proprio vigore, long before the statute ®f frauds, and the statute of wills, as will be shown in the course of this inquiry.
In the institutes of Justinian, (lib. 2. tit. 10. sec. 14.) it Is laid down, “ if a man wishes to dispose of his effects, by a nuncupative or unwritten testament, he may do- so, if, in the presence of seven witnesses, he verbally declares his will; and this will be a valid testament, according to the civil law.” It seems, that neither last sickness, nor any sickness, was necessary to give it validityj it was sufficient, if the witnesses, within a reasonable time after the death of 6he testator, went before a magistrate, and giving an account of what took place, a formal statement was drawn up and signed. Swinburne (part 4. sec. 29. p. 350.) says, " in snaking a nuncupative will, this is chiefly to be observed, that the testator do name his executor, and declare his mind by word of mouth, without writing, before witnesses ; no precise form of words is required, so that the testator’s meaning do appear.” So, also, in Swinburne, (part 1. sec. 12. p. 58.) it is said, “ a nuncupative testament, is when the testator, without any writing, doth declare his will before a sufficient number of witnesses. It is called nuncupative, because, when a man makes such a testament, he must name Ms executor, and declare his whole mind before witnesses.” The author then observes, “ This kind of testament is commonly made when the testator is very sick, weak, and past all hope of recovery.” Here, I think, we may discover the source of that erroneous impression, which some elementary writers entertain, that it is of the essence of a nuncupative will, that it be made in extremis, or when a man is sick and in fear of death. Swinburne, who, in substance, lays down
In 7 Bacon, (tit. Wills, D. 305.) the author, speaking, of nuncupative wills, gives this definition : “ when a man is sick, and for fear of death, or want of memory should surprise him, if he staid the writing of his testament, desires his neighbours and friends to bear witness of his last will, and then declares the same presently by word, this is called a nuncupative vyill.” There is no doubt this is all correct. A will made under such circumstances would be valid; but it will be remembered, that the question is, whether a will
As further evidence, if any is wanting, that Bacon so understood the law, we find, in a case (7 Bac. 339. tit. Wills. 1 Eq. Cas. Abr. 403.,) where a question arose as to the validity of a nuncupative will, it is merely stated, that the testator was ill. No objection was taken on this point, hut there were other difficulties, which, if they had been removed, the will would have been good. I will not trespass on the patience of the Court by pursuing this inquiry farther. I think it is perfectly settled, that before the statute, a good nuncupative will might be made at any time, if proved by witnesses; and, although, for reasons already given, men generally deferred the making of such wills, until overtaken by sickness, and in fear of death; yet that the law did not place wills, made at such times, on more favoured grounds than if made at a different period. The consequence, then, is, that there is nothing in the common law to aid in giving a construction to the terms “ last sickness,” made use of in the statute; and, therefore, the statute must be considered as introducing a new rule, or, perhaps, more correctly speaking, restricting the period in which nuncupative wills may be made, by confining it to “ last sickness,” instead of leaving the time in the discretion of the testator. If any thing more was necessary to prove the soundness of the doctrine I have advanced, it seems to me the statute itself contains the most satisfactory evidence. It is admitted, that the statute was intended as a remedy for the frauds and impositions which grew out of the common law. The various regulations introduced, were for the express purpose of serving as checks and barriers against fraud. The statute does not purport to be declaratory of the common law, but is a
But it is said, that this will is not valid, because no executor is expressly appointed. Without examining whether the naming an executor was essential to every testament, it is sufficient to show that an executor, eo nomine, need not be named in words.
Swinburne (part 4. sec. 4. p. 247.) observes, “ if the testator says, I commit all my goods to the disposition of A. B., it is, in effect, as if he says, I make him my executor, for it thereby appears he did not intend to die intestate.” Here, the testator has given all his personal estate-, and that is a valid appointment of executor. I apprehend, that in every case, a nuncupative will may be valid without naming an executor. In 2 Black. Rep. 503., the author states the proposition generally, that if the testator makes an incomplete will, without naming an executor, administration may be granted cum testamento annexo. (1 Roll. Abr. 907. Comb. 30.) This appears to have been done, in several cases. In How v. Godfrey, (Finch’s Rep. 361.) letters,of administration, with the will annexed, appear to have been granted on a nuncupative will, when no executor had been appointed. The long and uniform practice in this respect, is opposed" to the objections urged, that the appointment of an executor, in the will, is essential.
Some criticisms were applied to the testimony of the witnesses who proved the will, which I will briefly notice; it is objected to Doctor Arden’s testimony, that after stating the expressions of the testator, he says, “ or words to that effect.” ! That Waters uses the words, “ should have all the
The remaining question is, does the testimony satisfactorily prove that the will in question was made ?
It does not appear to me extraordinary, that this question has been litigated with uncommon zeal $ neither ought it to excite surprise, to find contradictory testimony in some material points. It was to be expected; it is an angry controversy, where disappointment on one side, and the hope of establishing the will on the other, have excited great competition. Here is a foreigner with considerable property, about to leave it soon. Whether he has any heirs in his native country is uncertain 5 he thought he had none ; if he had, it is very evident he felt no sympathies or interest for them ; all connexion seemed to be dissolved; years had passed away without any communication ; he had changed his name ; in short, whatever may have been the cause, it does not appear, that a single human being had any hold on his affections, so as to be a particular object of his bounty. In this situation, he is confined by sickness, and although he entertained hopes of recovery, it cannot be doubted, he
The formal act of dictating a written will, may have appeared too much like the precursor of dissolution ; or his apathy might be such, that he would not go through the formalities of so solemn an'act, and yet might be willing to say, “ A. or B. shall possess my property after my death.” He might have a predilection enough for some individual, to do the latter, for it was attended with no trouble or effort, but would have died intestate, rather than submit to the former. Who can point out, with certainty, the object of his regard ? He was eccentric, .of singular habits ; fretful, suffering at times excruciating pains. Is there an individual that will pretend to such knowledge of the human heart, the motives and springs of human action, as to say, that the faithful attendant on the sick bed of the testator, who had devoted days and nights to mitigate his sufferings and soothe his pains, would not probably be deemed a fit object of his bounty ? For myself, under such circumstances, I have no hesitation in saying, such a disposition of his property is at once natural, if not to be expected. If the result of this examination shall be, to prove the making of a will, this Court, sitting to discharge the duty of discreet Jurors, will not erect itself into a tribunal to say, the testator ought not to have devised in this manner ; neither will it feel itself at liberty to disregard the' testimony in support of it, unless it shall be. successfully impeached, according to the rules which govern in a Court of Justice.
Four witnesses have been examined to prove the will. If they, or any three of them, are to be regarded as credible witnesses, it is abundantly proved. I shall begin with Doctor Arden. His general character is not impeached. I cannot travel out of the case to inquire respecting him ; I think it will be admitted, if aught could be alleged against him, it would not have been withheld. I am constrained to believe he has stated the truth, unless it be shown that his evidence is contradicted in material parts. He not only swears to the making this nuncupative will, but that on several occasions, previously, the testator declared his intention, to
But it is urged, that his testimony is contradicted. He says,, he was called to Jones as a patient, by finding a memorandum on his slate, by some person, but what person he never knew : is this disproved ? So far from it, Taber, an unimpeached witness, says, that a man did call at the office of Doctor Arden, and left a message on the slate for him. James M‘Donnell testifies, that it was proposed by Jones and Mrs. JET. that he should go to Doctor Arden ; that he went, saw him, and delivered his message. In all this, I perceive no contradiction; the testimony is consistent and reconcilable ; the fact, that Arden was called by a message on the slate is proved to be true. Some person did call, and as M‘Donnell appears to have been the only person sent, and inasmuch as he has not denied that he left that message, nor been questioned respecting it, as might have been done, had it been deemed material, the fair presumption is, that he was the man that called, and not finding Arden at home, after-wards saw him, and delivered the message personally. But whether he was the person or not, is immaterial; McDonnell’s request does not, in the least, falsify the statement of Arden, that a message was left on the slate ; both are undoubtedly true, and admit of perfect explanation. That he was sent for, and at the request of Jones, is proved. It is difficult to conceive, why this unimportant circumstance was pressed, as a ground for impeaching the testimony. Another ground is this : Arden says, he never heard any friend, visiter, or attendant, make a request to call in a clergyman. Julia Devoy testifies, that she urged to Doctor Arden, the calling in of the Bishop; that the Doctor observed, that he should allow no clergyman to come that night. Here is contradictory
The next witness is William Leehe also proves the will. He says he was requested by Doctor Arden to go with him to see a sick patient; he went; he never saw Mrs. Mo until he met her at the house where Jones was lying sick. His testimony, in substance, concurs with that of Arden and Waters; but it is assailed on several grounds. I will briefly consider them. Lee says, that on the third of May, Mrs. H. called on him, and gave Mm the first information of Jones’s decease. Walter Furlong testifies, that he informed Lee of the decease of Jones, the morning he diedo Whether Lee received the information on the 15th of April, or the 3d of May? is a circumstance irrelevant and unimportant, in respect to the subject of this will 5 it could have no effect whatever, allowing that the witness intended to aid the cause of Mrs. JET. If Lee was corrupt enough to sacrifice his integrity, he would have testified falsely to some fact that might be material. It would be in character, for a knave, on prudential grounds, to adhere to truth in circumstances of no moment | he would not expose himself to contradiction where nothing could be gained. I perceive no motive for stating the time of receiving information falsely. The law will not impute perjury on such a state of facts, but will ascribe the variance to misapprehension or mistake ; besides, Lee? who swears to one day, is equally credible as Furlong, who swears to another.
If this was an ordinary case, before a jury, exciting but little interest, I am persuaded the contradiction, merely as to the time when notice of Jones’s death was received, would not be seriously urged; if it was, it would not, and ought not to be listened to.
But, it is urged, that Lee’s general character is impeached. It is proper here to remark, that evidence of this kind,
It is what the community say generally of a man, that is evidence; not what this or that individual may say. Deplorable, indeed, would be the state of society, if the opinions of two or three individuals should be deemed sufficient to establish a general bad reputation. In times of party contention, if not at all times, it would not be difficult to prove, in any given case, that a few individuals had spoken against the character of the witness, or person on trial, when the general voice was otherwise. It is not evidence at all, where the witness who impeaches another has formed his opinion merely on what A., B., and C. have informed him. If the witness has only heard A. and B. speak of the individual implicated, then he is not sufficiently informed to make out what is required, and the party who calls him must resort elsewhere. On principle, it is highly expedient the law should be so ; for this species of evidence deals in no specific facts, and, consequently, no investigation can take place as to the truth or falsehood of the matters which have made an unfavourable impression against a witness; all that can be done is to give evidence of general good character. The proceedings in our Courts of Justice show, that evidence to impeach, or support, is obtained without apparent difficulty; it is not conclusive in any case, but is powerful and operative, when the general sense of those acquainted with a witness, is unfavourable to his truth
The preceding remarks apply to the testimony introduced to impeach William Lee. The first witness, Pensford, says, his general reputation is bad, but admits that he never heard more than two or three persons speak ill of him. Will this satisfy the rule of law that the general character is bad ? I think not.
Gross swears, that he would not believe him on oath, and has heard from a number of persons that he was a bad man. Carter says, that Lee’s character, for truth and integrity, is not good : and that he is not entitled to be believed as a witness.
This is the evidence for the appellant.
The respondents have resorted to the same kind of evidence to support William Lee, in which they have succeeded. Nine witnesses testify favourably of his character ; and that he is to be believed on oath. There is a variation in the forms of these depositions: some are more full and explicit than others. I have considered the criticisms applied by the counsel on the argument. When a witness says, that “ from the general character of William Lee, for truth and integrity, he would believe him on oath as a witness,” I cannot intend that his character is presented in a questionable shape; that the witness meant to say, he has just so much character as will entitle him to belief, and nothing more; and by using such terms, to present the witness as suspicious. The fair import is decidedly in support of a good reputation for truth and veracity. But West, Johnson, and Quin, speak in more general terms ; they know his general character, for truth and veracity, to be good. They alone are more than sufficient to counterbalance the evidence of Gross and Carter, on whom the appellant most relies. This attempt has failed altogether. Has Furlong proved any fact injurious to the credit of Lee ? How this deposition can be made to bear on the truth of Lee, I confess I am ignorant.
No principle of morals or ethics, required Lee to state all he knew; he was at perfect liberty to communicate his knowledge, or remain silent; and if, by his manner, Furlong drew an inference of Lee’s ignorance on the subject, I am not aware of any impropriety, much less that any criminality attached upon his conduct. He was bound to speak truth, when he,did speak ; but he was not prohibited from making inquiries, or expressing regrets.
Furlong had no interest in, or connexion with, the will, or the parties to it, and could sustain no injury by remaining in ignorance. Lee acted with prudence, and proper reserve. When inquired of how he could be a witness, he gives a satisfactory explanation ; “ he did not think proper to inform Furlong what he knew.”
Thus, have I examined the testimony of three witnesses in support of this will, with the various objections to their credibility, and arrive at a conclusion entirely satisfactory to my own mind, that a nuncupative will was fairly and bona fide made, answering all the requirements of law, and vesting in the respondents the property of the testator.
With respect to Ellen Taylor; the aid of her testimony is not required. It is admitted, that she is contradicted in so many particulars, that unless supported, she is not entitled to credit. She is a woman of colour, who attended Jones in his sickness, and, probably, of that class who are not under
I will now examine the assemblage of circumstances, evidently got up at the instigation of Eevoy and his wife, influenced, as appears to me, by the consideration that as they had been disappointed in obtaining a will, to defeat Mrs. If in her claim would afford the only chance of reaping a portion of the spoil; trusting to the gratitude of Jones’s relations, if he had any, or, in the words of Eevoy, “ that he would leave that to their own generosity.”
The testimony remaining to be examined is not immediately directed against the witnesses, on whom the respondents rely; but to render it improbable a will was made, by proving the conduct and declarations of Jones and Mrs. If.., Patrick Eevoy testified, that he never said any thing to Jones about making his will, nor did he mention that subject himself, nor did any person mention the subject in his hearing ; that Doctor Torbert informed him (Eevoy) that a will must be prepared, and submitted to Jones and his clergyman, to be signed, if Jones liked it. Eevoy admits he said to Torbert, that a will, dividing the property of the deceased equally among his friends would be satisfactory; but that he never gave Torbert any directions, that he was to have a share of the property. Here, then, we find Eevoy active in procuring a will, without ever having consulted the testator, or, by his own account, ever having received the least intimation that Jones intended to give him any thing. This alone places him in a suspicious point of view. But Doctor Torbert contradicts him ; he says he went, at the request of Eevoy, to see if he could not make Jones’s will; “ that the provisions thereof were made known to him by Patrick Eevoy;” and that " Eevoy was named as an heir or legatee in the
As to Doctor Torbert’s testimony, I have already remarked on that part which seems to have been intended to make against this will. It has but a slight bearing on the question in controversy, and might have been withheld without injury to the appellant, and Dr. Torbert thereby relieved from the necessity of placing himself before the public in no enviable point of light. He drew two wills; in his own words, “ not liking the first, he drew the second,” naming himself as executor, and Devoy as heir.
I have already referred to part of the testimony of Julia
Whether her statement, that Mrs. H. said there was a will, and that she and her husband were remembered in it, and requested her to keep still, is true or false, the present question cannot be affected by it. It is possible that Mrs. H, may have resorted to such a device to check the intermeddling of Devoyjmd wife ; or, which is more probable, that her words were not measured or studied at this time, when her mind, without doubt, was much agitated. She was a woman, and alone; her husband not present to advise with her; a large sum devised to her, was in jeopardy 5 the public administrator was taking charge of the property ; no legal adviser was present. In such circumstances she may have spoken unadvisedly and incorrectly. She saw the storm that was gathering, and may have been indiscreet in the means used to avert it. The witnesses who proved the will, cannot, on such grounds, be impeached; nor are they responsible for any indiscretions of Mrs. H.
It is well established by the proof, that Jones was not disposed to make a written will. Fleury says, that three days before Jones died, he pressed him to make a will, as he was then very ill. Jones did not consent, and observed, lie did not feel so low as to make a will then. To my mind, it appears evident, that he wished to evade the urgent solicitation of Fleury. On Sunday evening, Fleury heard Jones observe to a Spanish gentleman, in the Spanish language, that he would not see him alive the next morning. Jones was of a sound mind. Fleury, who had urged the necessity of a will, and who had tendered his assistance, was present. I think, it must be presumed, that he died satisfied with what had already been done. There was no restraint upon the testator; there is no proof that any fraud or imposition was practised on him. If there has been a conspiracy, I have not been able to discover it, after the most attentive consideration. The suggestion that, in the prospect of dissolution, this stranger in a foreign land, would fasten his affections on the country that gave him birth, is both natural and just. The picture so ably drawn by the concluding counsel, was not the creature of fancy, but the representation of real life. In
I am of opinion, that the decree of the Court of Probates ought to be affirmed.
Austin, Childs, Forward, Huntington, Rosecrantz, and Vielie, senators, concurred.
But the rest of the Court,
Decree of Reversal.
Nov. 11th, for reversing 23. For affirming 7.