23 F. Cas. 35 | U.S. Circuit Court for the District of New Jersey | 1822
Concurrence Opinion
concurred.
It was contended by the plaintiffs’ counsel, in summing up: (1) That, the will was not executed according to the directions of' the statute, of' New Jersey, passed the 17th of March, 1713 (14 Patt. Laws, 5) which declares, that all wills and testaments thereafter to be made in writing, signed and published, by the testator, in presence of three ■subscribing witnesses, and regularly proved, and entered on the books of records, or registers in the secretary's office, &c. shall be sufficient to devise and convey any lands, &c. This act differs from the statute of 29 Car. II. c. 3, § 5, in this important particular: that the statute speaks of wills signed by the testator, or some other person in his presence, and by his express direction. In this case, it is undeniable that the name of Benjamin Yancleve was written by John Pharis, who not only steadied, but guided his hand, and wrote the name, using the hand of the alleged testator as an instrument, a.s much so as if he were dead. But even under the statute of 29 Car. II. this could not be considered as a valid execution of the
For the defendant it was insisted, on the first point, that, upon the evidence, it appeared, that the name of the testator was signed by himself, Pharis merely guiding his hand. But even if the name had been written by Pharis, it would be a good execution; as it would be quite an inadmissible construction of the law of this state to exclude from the privilege of making a will, a person who, by accident or disease, should lie incapable of writing his name. Such has never been the construction of the law by the courts of this state. The agency of Phar-is is clearly proved to have been exerted at the request of the testator: which would bring the case strictly within the statute of 29 Car. II. (2) The evidence given of the state of the testator’s mind, at periods prior or subsequent to the 24th of August, is not such as ought to prevail against the testimony of the attesting witnesses. The presumption of law is always in favour of competency, and the whole burthen is on the heir at law to establish the contrary fact. As to the degree of capacity in the testator necessary to give validity to his will, the following books were referred to: Swinb. 112, 76-83, 96; Jac. Law Dict. 430; Harrison v. Rowan [Case No. 6,142], in this court; 2 Phil. Ev. 191. 193; 3 Mass. 330.
WASHINGTON, Circuit Justice, (charging jury). As the objection to the execution of the will will be noticed hereafter, I shall, for the present, confine my observations to the single question of the testator’s competency to make a will. He must, in the language of the law, be possessed of a sound and disposing mind and memory. He must have memory. A man in whom this faculty is totally extinguished cannot be said to possess understanding to any degree whatever, or for any purpose. But his memory may be very imperfect; it may be greatly impaired by .age or disease. He may not be able, at all times, to recollect the names, the persons, or the families, of those with whom he had been intimately acquainted; may at times ask idle questions, and repeat those which had before been asked and answered; and yet his understanding may be sufficiently sound for many of the ordinary transactions of life. He may not have sufficient strength of memory, and vigour of intellect, to make, and to digest all the parts of a contract, and yet be competent to direct the distribution of his property by will. This is a subject which he may possibly have often thought of; and there is probably no person who has not arranged such a disposition in his mind before he committed it to writing. More especially, in such a reduced state of mind and memory, he may be able to recollect, and to understand the disposition of his property which he had made by a former will, when the same is distinctly read over to him. The question is not so much what was the degree of memory possessed by the testator as this —Had he a disposing memory? Was he capable of recollecting the property he was about to bequeath; the manner of distributing it; and the object of his bounty? To sum up the whole in the most simple and intelligent form — Were his mind and memory sufficiently sound to enable him to know, and to understand, the business in which he was engaged, at the time when he executed his will? This being the question, and the only one at this time for your consideration, 1 shall proceed to lay down the following general rules to assist you in your deliberations.
1. The only point of time to be looked at by the jury, at which the capacity of the testator is to be tested, is that when the will was executed. He may have been incapable to make a will at any time before, or after that .period; and the law permits' evidence of such prior and subsequent incapacity to be given. But unless it bear upon that period, and is of such a nature as to show incompetency when the will was executed, it amounts to nothing.
This being the important epoch: 2. The evidence of the attesting witnesses; and next to them, of those who were present at the execution — all other things being equal— is most to be relied upon. The reason is an obvious one. The law considers the attesting witnesses, in particular, as called upon by duty to examine into, and to be satisfied of the capacity of the testator to make a will. There are few men so ignorant as not to know, that a person non compos men-tis cannot make a valid disposition of his property by will, and that his signature to the will attests, not only its execution, but its validity. These witnesses besides, and others present at the execution, have a better opportunity of judging of the soundness of the testator’s mind, from his words, actions, and appearance, than those who merely saw him at other times.
I now proceed to lay before you the substance of the evidence, beginning with that given by the attesting witnesses, and by those examined to support their testimony; and afterwards, that of the witnesses who
(After summing up the evidence on botli sides, the judge proceeded.)
With respect to the evidence given of declarations made .by two of the attesting witnesses upon the subject of the testator’s competency, in connection with what they have sworn, I think it proper to remark that it ought in most, if not in all cases, to be received with great caution by the jury. The testimony of a witness whose veracity and character are otherwise unimpeached, given under the solemn sanction of an appeal to the great Searcher of hearts, ought not to be lightly estimated, in consequence of loose declarations made at other times to persons in no wise interested in the subject to which they refer, and which were possibly on that account little attended to, imperfectly understood, and never again thought of by them. I do not mean to say that such evidence is unworthy of the consideration of the jury; quite otherwise. But it should be received with some degree of jealousy, and should be thoroughly examined and weighed. If then you believe the four witnesses who were present at the execution of the will, and the facts to which they deposed, three of them being the attesting witnesses,..the will wras legally executed.
It was contended indeed by the plaintiffs’ counsel, that, in point of fact, the name of the testator was written by John Pharis; and if so, the will was not executed according to the provisions of the law of this state. The fact is most probably stated correctly by the counsel: but is it to be believed that, when all persons, except those of unsound mind and memory, are permitted to dispose of their property by will, the legislature could have intended to deny this privilege to those who from accident, disease, or want of education, could not write? If such be the construction of the law, it would-be insufficient for the testator to make his mark, since that would not amount to subscribing his name. The fact is, that at the time the act of assembly was passed, the statute of frauds and perjuries, 29 Car. I. was in force in this state, and was not repealed -by the act. And although, at a much later period, all the statutes of England were repealed, still the above statute had become incorporated with, and formed a part of the land laws of this state, so far as it respected last wills and testaments; and has always, as I understand from Judge PENNINGTON, been considered as furnishing the rule as to the execution of wills. If so, this will was executed in strict conformity with the statute; since the submission of the testator (who, in relation to this part of the case, is to be considered as fully conusant of what he was doing) to have his hand directed, so as to write his name, was at least equivalent to an express direction to another to sign his name. For it cannot be denied that, under the statute, the direction to subscribe the name of the testator, may be given by him by signs, as well as by words. But be the law upon this subject as it may, this will, in the opinion of the court, was, upon strictly legal principles, signed by the testator, his hand being with his own consent guided by another, and the will afterwards acknowledged by him. Under these circumstances, the act of Pharis was, in point of law, the act of the testator.
Whether the testator was competent to make his will, is a question of fact, which you must decide, after an attentive consideration of the evidence given on both sides. The presumption of law always is in favour of sanity at the time the will was executed, and the burthen of proof lies upon the person who asserts unsoundness of mind; unless a previous state of insanity has been established, in which case, the burthen is shifted to him who claims under the will. In the examination of this question, your first inquiry will naturally be, can the evidence be so reconciled as that the facts stated by the witnesses on both sides may be true? If, by a fair comparison of the evidence, and a correct course of reasoning, this can be done, charity, as well as the injunctions of law. call upon you to examine that evidence with this view. Although the testator’s memory had greatly failed, even to the extent stated by many of the plaintiffs' witnesses; .although when those witnesses saw him. sometimes for a very short period, at others for a long duration, the testator sometimes addressed by the witnesses, and at other times not spoken to at all, or excited to speak, — although he was sometimes seen by those witnesses lying silent, and in a state of apparent insensibility, with a vacant or stupid stare, so helpless as to be ministered to as if he were an infant; sometimes appearing to recognise those about him, and at other times not; — may he not have spoken and acted precisely as the four witnesses who were with him when the will was executed have sworn he did? Between those witnesses there is no material contradiction, though they do not state all the circumstances precisely in the same way. May not John Pharis have spoken the truth, and judged correctly, when he deposed that the testator was more revived on the morning of the 24th of August than he had seen him for three or four weeks preceding, and that he continued so for the greatest part of the day? May not the anodynes, which it seems he was in the habit of using, have affected his speech, or his disposition to speak at particular times? And may he not have been more disposed, at all times, to converse' with, or address questions to the members of his family, who were generally in his room, and attending to him, rather than with strangers, or even neighbours and friends who called only occasionally to see him? These, and similar questions, may be well worthy of the serious examination of the jury. But if, in your opinion, there are irreconcilable con
The jury found for the defendant.
Lead Opinion
BY
Such evidence is improper, as it is not pretended by the counsel, that they mean to prove the contents of that will, and to rest their defence upon it. On the contrary, they rely altogether, as they avow, upon the validity of the will executed on the 24th of August 1S17; and consequently the question respecting its validity cannot in any manner be fairly affected by the evidence offered in respect to the will of 1814. The only tendency of such evidence would be to prejudice the minds of the jury, and to lead them from the question which they have to decide.
The defendant's counsel also offered evidence to prove that the uniform declarations of the testator in favour of the defendant, from the year 1802, had been consistent with the disposition made of his property by the will of 1817. This was objected to, as being inapplicable to the only question in the cause, — the competency of the testator to make his will; the counsel for the" plaintiffs disavowing any intention to charge the defendant with fraud, or improper conduct in obtaining the will. Parol evidence to vary or explain a deed or will, except in a case of a latent ambiguity, or of fraud in obtaining a will, is inadmissible. 1 Johns. Eng. Ch. 231, 234 : 2 P. Wms. 214; Thomas v. Thomas, 6 Term R. 671; 1 Fonbl. Eq. 70; 2 Vern. 624; Smith v. Fenner [Case No. 13,-046]; 2 Johns. 31; 2 South. [5 N. J. Law] 655.
On the. other side it was insisted that, up-' on the question of competency, it might be very material to show that the testator had long contemplated the disposition of his property in the manner designated .by his will; as in that case, a smaller grade of memory might be requisite, than would be if such a disposition had not been previously arranged in the mind of the testator. Harrison v. Rowan [Case No. 6,142], in this court; 1 Yeates, 108; 2 Yeates, 46; 1 Hen. & M. 476, 478; 3 Hen. & M. 502, 510; 1 Bay, 335.
The declarations of a party to a deed or will, whether prior or subsequent to its execution, are nothing more than hearsay evidence; and nothing could be more dangerous than the admission of it, either to control the con-, struction of the instrument, or to support or destroy its validity. If the evidence is offered in support of the instrument, it could only have that effect upon the supposition of a uniform consistency of those declarations, not only with the instrument itself, but with the secret intentions of the party, at all times after those declarations were made; and yet how unsafe a criterion would this be, when most men will acknowledge the frequent changes of their intentions respecting the disposition of their property by will, before they have committed them to writing. The uniform consistency of those declarations, is the chief ground upon which the whole argument in favor of the evidence is rested; and yet, if the evidence be admitted at all, the plaintiffs would be at full liberty to prove opposing declarations of the testator at other times; and thus a door would be open to an inquiry in no respect pertinent to the main subject of investigation, but mischievously calculated to . perplex and to mislead the jury. That such evidence has sometimes been given, is proved by many of the eases read by the defendant's counsel; but it would be very unsafe to consider those instances as laying down a rule of law, since, in none of them, was an objection made to the admission of the evidence, so as to submit its competency to judicial inquiry and decisions. The general rule of law is against the evidence, and no case has been cited showing an exception to it, unless when it was offered to repel a charge of fraud, or circumvention of the devisee in obtaining the will. But in this case the plaintiffs’ counsel disavows any intention to impute to the defendant a charge of this sort. The evidence is therefore inadmissible.
