38 Pa. 138 | Pa. | 1861
The opinion of the court was delivered,
— The proof of a will consists of evidence of its authentication in due form of law, and of its being the voluntary testamentary disposition of a sound mind. Whether it be duly authenticated, is a question of law for the court; whether it was the product of a sound mind is exclusively for the jury. The question of authentication, however, is complex. There may be controversy respecting the existence of proof of the facts which constitute it, or respecting their sufficiency when proved. If the facts be denied, the jury, in an issue devisavit vel non, are to pass upon them, and the court only determines whether, if proved, they make up authentication. But proof of the facts necessary to constitute authentication is not to be confounded with proof of mental soundness, or freedom of the will. The only fact in this case bearing on the question of authentication, which was in dispute, was whether Mr. Towar actually signed the codicil, aiid the first two assignments of error rest upon the assertion that there was not sufficient proof of his having signed it, to warrant the admission of the codicil in evidence. The issue on trial being whether the writing was valid as a codicil, it of course would have been properly laid before the jury without any proof of its execution, not as evidence, for it could not prove its own execution or validity, but to enable the jury to see what they were to try: Cowden v. Reynolds, 12 S. & R. 281; Shelley v. Diller, 1 Rawle 177. Admitting it in evidence was only deciding that there was sufficient preliminary proof to warrant a submission to the jury to find whether the fact was established that Mr. Towar had affixed his signature to it. That this fact was sufficiently established for such submission, we have no doubt. There were three subscribing witnesses to the paper. The first called proved unqualifiedly the signature of Mr. Towar, and his own attestation. The second (Mrs. Hogan) proved that she attested the codicil as a subscribing witness.
On her cross-examination she described the manner in which the alleged testator’s signature was made. Her testimony was that he wrote “Alex. Tow,” when the pen fell from his hand; that Dr. Dubbs replaced it and held his hand while he (Towar) finished the last two letters. And again, she testified, “ He wrote the words Alex. Tow without spectacles, I think. I think they fell off the first when he was as far as ‘ Alex.’ They were
Of the several specifications made to the charge of the court, but two were pressed in the argument. The others, though not abandoned, were justly considered without merit. It was urged, however, that the court erred in their answer to the defendant in error’s second point. That point was as follows: “ The due ex
The other exceptions to the charge relate to what was said respecting the measure of capacity necessary to constitute a sound disposing mind. We discover no error in the instructions given. We will not enter into the metaphysics of the argument against the court’s answer to the ninth point of the plaintiff below. As addressed to the common understanding, its plain meaning was, that if the testator had. reflected sufficiently upon the dispositions that he intended to make, before he stated them to the scrivener, it was not necessary that he should again go over the whole ground of his former reflection. That to state the purposes which were the results of reflection, required not consideration so much as memory, and that if the testator’s memory recalled, and if he understanding^ stated to the scrivener those intentions which were the results of his previous reflection — in
We approve of the refusal of the court to affirm the point presented by the defendant below. It was foreign to the issue, and had no connection with the matter to be tried.
The remaining assignments of error have reference to the verdict. They assume, against the record, that there were two verdicts, and they aver that one of them was repugnant and uncertain. The assumption is unwarranted. There was but one verdict, a general one for the plaintiff. The sealed paper filed was not a verdict, nor did it become, by filing, any part of the record: Dornick v. Reichenbach, 10 S. & R. 84. There is nothing, therefore, in these assignments.
The judgment is affirmed.