108 Pa. 395 | Pa. | 1885
delivered the opinion of the court, October 15th, 1885.
The first assignment of error relates to the form of the issue. The precept from the Orphans’ Court directed an issue to be-formed to determine- — ■
“First. Whether the said certain writing dated December 2d, a. d. 1876, is a codicil to the will of said John L. Neill deceased.
Second. Whether at the time of the maldng of said alleged codicil the said John L. Neill was of sound disposing mind, memory and understanding.
Third. Whether the alleged codicil was produced by undue influence, fraud, imposition or duress.”
Under this order pleadings were filed consisting of a narr. with three counts, each one charging a conversation and a wager upon one of the three foregoing several matters covered by the precept, a plea denying each of the assertions contained in the narr. and tendering issue upon all, and a similiter joining issue as to all. The executors were made plaintiffs in the issue and certain of the legatees whose legacies were changed by the codidil were made defendants. It is the executors who object to.the form of the issue and not-the legatees. They do
But if the question were an open one, so long as the executors are plaintiffs in the issue it is difficult to see how they are injured by the form adopted in this case. It is in substance the issue devisavit vel non which has almost universally prevailed in this Commonwealth during the whole period of our jurisprudence. That kind of issue is founded upon the idea that the executors assert and uphold the will, and that it is their business to establish it if it is questioned, and, being charged with this duty, they should be made parties and plaintiffs in the contest. We have never yet formally decided
The objection that this issue required the plaintiffs to prove a negative in respect of the allegation of undue influence Avould not be serious if it were well taken, but it is not well* taken. In substance it is an allegation that the codicil was made by the testator of his OAvn free will and is no more negative in tits character than the averment of sanity. The anomaly comes from making the wrong persons plaintiffs. If the plaintiffs are the persons who contest the codicil they, properly and affirmatively, allege insanity and undue influence and must prove whatever they allege. But if the persons who support the codicil are made plaintiffs and undertake to describe the issues, they do so by two affirmative allegations of sanity and free will, or two negative ones denying insanity and denying undue influence.' In this respect the two averments are essentially alike. The first assignment of error is not sustained.
Second, third and fourth assignments. — There is a slight difference between the first of these three questions and the other two. But it is a difference apparent only and not real. The last two of the questions, covered by the third and fourth assignments, expressly assume the -truth of the facts upon Avhich the expert opinion is asked, Avhile the first assumes it tacitly. The latter propounds a question upon the sufficiency of the whole of the plaintiffs’ testimony as presented in the evidence, to enable the witness to determine the question of mental capacity. The truthfulness of the testimony is necessarily assumed, its sufficiency only being inquired of. Any other theory makes it meaningless and ridiculous. Of course it could not be. sufficient if there is the slightest question as to its truth.
In Detweiler v. Groff, 10 Barr, 376, we said — “In questions of science, skill and trade or others of the like kind, persons of skill, sometimes called experts, may not only testify to facts, but are permitted to give them opinions in evidence: 1 Green. Ev. § 440, their opinions are confined to their judgment on the facts proved.”
In Olmsted & Bailey v. Gere, 4 Out., 127, which was an action of case for malpractice we reversed the court below for rejecting the following question put to a physician as an expert. Q. From the testimony you have heard as to the mode in which this limb was treated by Dr. Bailey, and from the results you find upon the limb was there any unskillful management on his part? ” and held that an opinion derived from both sources rvas competent.
None of these cases presents the very question we are considering, but they proceed upon the idea, and affirm the doctrine, that an expert witness may be asked his opinion upon facts proved on the trial and heard by, or known to the witness. In Dexter v. Hall, 15 Wall., 9 however a decision was made which seems to cover every aspect of the question now before us. The matter involved was the sanity of one Avho had executed a power of attorney. Depositions had been taken on both sides some tending to show sanity and others
It seems to us that tMs is the true distinction upon which the question should be determined. The witness can not be asked to state Ms opinion upon the whole case, because that necessarily includes the determination of what are the facts, and this can only be done by the jury. But if either the facts are stated hypothetically in one question, or if the whole of the testimony delivered by one of the'parties or By certain of the witnesses for one party is made known to the expert either by his reading it or hearing it, and he is then asked his opinion upon it assuming it to be true, in either case the opinion is sought upon an assumed state of facts, and may therefore be given. We can see no difference between the two modes of putting the -question to the expert, except in the manner in
Thus in a very elaborate opinion in the case of Gilman v. Town of Strafford, 50 Verm., 723, where the questions proT pounded were upon the facts stated in depositions,- the court said: “ Where an expert hears or reads the evidence, there is no reason why he may not form as correct a judgment upon such evidence, assuming it to be true, as if the. same evidence was submitted to him in the form of hypothetical questions, and it would seem to be an idle and useless ceremony to require evidence with which he is already familiar to be repeated to him in that form.”
. In Negroes, Jerry et al. v. Jeremiah Townshend, 9Md., 145, the court said: “ The question propounded, to the witness was not his opinion upon the evidence submitted. By such a question it would be left to the witness to determine what testimony he would believe and what he would reject, and the degree of weight to be attached to each item of testimony submitted. But the question was ‘ upon the hypothesis that the testimony given by the witness in this ease is all true,’ then, what would be the witness’ opinion ? By this interrogatory as thus put the witness is not permitted to weigh the testimony, but is required to assume it all to be true as stated. If is virtually, as we have said, putting a hypothetical state of the case to the witness upon which his opinion is to be given.”
In Wright v. Hardy, 22 Wisc., 348, the action was for negligently performing the amputation of a limb, an expert witness was asked, • “ Suppose lus (a witness whose testimony the expert had heard) statement relative to the amputation and his subsequent treatment to be truthful, was or was not the amputation well performed?” The court below rejected the question. The Supreme Court said: “ For ourselves we can see no reasonable objection to it. The sole object of all rulés upon the subject is that the questions shall be so framed as not to require the expert to give an opinion upon the credibility of the testimony and the truth of the facts, which are purely questions for the jury. The questions asked required no. expression of opinion as to credibility of the testimony or truth ■of the facts deposed to-by witness Knapp......It follows therefore that the court erred in rejecting thé questions'.”
In Fenwick v. Bell, 1 Car. & Kir. 312, it was held that in an action of case for running down the plaintiff’s ship a nautical witness may be asked whether, having heard the evidence and admitting the facts proved by the plaintiff to be true, he is of opinion that the collision could have been avoided by proper care on the part of defendant’s servants.
A similar form of question was permitted by Lord Elhenbouough in Beckwith v. Sydebotham, 1 Campb., 116.
In Commonwealth v. Rogers, 7 Metc., 500, Chief Justice Shaw, charging a jury in a homicide case where the defence Avas insanity, after defining the subject of expert testimony, said: “ One caution in regard to this point is proper to give. Even where the medical or other professional witnesses have attended the whole trial and heard the testimony of the other Avitnesses as to the facts and circumstances of the case, they are not to judge of the credit of the witnesses, or of the truth of the facts testified by others. It is for the jury to decide whether such facts are satisfactorily proved. And the proper question to be put to the professional Avitnesses is this: If the symptoms and indications testified to by the other Avitnesses are proved, and if the jury are satisfied of the truth of them, whether in their opinion the party Avas insane, and Avhat was the nature and character of that insanity; what state of mind did they indicate.” In Hunt v. Lowell Gas Light Co., 8 Allen, 170, the plaintiffs called three physicians who had heard tbe testimony on the part of the plaintiffs which was not conflicting, and asked each of them this question: “ Having heard the evidence and assuming the statements made by the plaintiffs to be true, what in your opinion Avas their sickness, and do you see any adequate cause for the same ? ” The defendants objected to the question, but it was allowed, and on error, the court, Chapman, J., said: “ The object of all questions to experts should be to obtain their opinion as to the matter of
Those of them which relate to the question we are considering were in the main, decided upon some special reason not in hostility with the cases above cited, as for instance because the question required the witness to pass upon all the testimony in the ease, or to infer the facts or some of them, or the assumption of the truth of the facts to be considered was omitted, or the question was so framed as to require the witness to determine the credibility of the testimony or some part of it, or the testimony upon which he was to pronounce was in itself contradictory.
After a careful review of the whole subject we have reached the conclusion that the questions we are considering, not asking the witness to express an opinion upon the whole of the testimony, but only upon a defined portion of it, that testimony not being contradictory in itself and its truthfulness
Fifth, sixth, seventh, eighth and, ninth assignments. — An examination of the record shows that the witnesses had been examined and fully testified in chief upon the subjects covered by the questions whose rejection is complained of in these assignments. ■ At the very best their admission was subject to the discretion of the court below which we would not review: Young v. Edwards, 22 P. F. S., 264; Gaines v. Com., 14 Wr., 329; Aiken v. Stewart, 13 P. F. S., 33.
-. Tenth assignment. — We could not possibly sustain this assignment without reversing all that we have decided in Boyd 1>; Boyd; Frew v. Clarke; Cuthbertson’s Appeal and kindred cases on the subject of confidential advisers writing wills under which they take large benefits.
■ Eleventh assignment. — The fourth point of the plaintiffs was as follows: “ If the jury believe from the evidence that Mr. Neill was of sound mind when the codicil was made,-and himself suggested or directed the alterations in his will winch are -contained in the codicil and the residuary clause contained therein, no presumption arises against the validity of the codi.cil because of the relation in which Mr. Yardley stood to Mr. Neill in the drawing and execution of the codicil.” The answer of the court was as follows: “ This point is affirmed, with this qualification, that it is always ground for suspicion where one holding confidential relations to a testator prepares for and directs the execution of á will under which- he takes a considerable interest, and that the .obligation-rests on such confidential agent to show by clear and satisfactory proof that the testator fully understood the f estamentary disposition of his property as it may be, expressed .in the will or codicil.”
■ The error assigned is that the point should have been but w?„s not affirmed absolutely and without the qualification.
There is no doubt that the point as expressed is sound and might have been affirmed without any qualification. But the question with which we have to deal is,'was it error 'to add the qualification. The point was stated hypothetically, which wa-s the proper way of stating it, but there was highly controverted evidence as to the truth of the facts expressed in the hypothesis'. The jury has found that. Mr. Neill was not of ¡sound mind when the codicil was made, and the only evidence
In the light of such a verdict we must assume there was evidence of mental unsoundness given to the jury and the record shows such to be the fact. It was entirely undisputed that the person who wrote the codicil was by its provisions made the legatee of almost four fifths of the estate, when the will, -written by the testator himself when he was thoroughly master of his faculties, contained no such provision nor anything at all approaching it, or similar to it. It was also the fact that the codicil reduced certain legacies given by the will from $175,000 to $35,000, and that nothing was said to the testator indicating what proportion of his estate would go' to the scrivener under the codicil which the latter prepared. In these circumstances it can not be said that there was any impropriety or unseemliness on the part of the learned judge who tried the cause, in annexing to the affirmative answer which he gave to the point, a suitable cautionary qualification.
It is common practice to do so, and in many eases it is desirable, and in some, necessary. Of course it is essential that the qualification shall, itself, be free of error. In the present ease the only material inquiry is, was the matter stated in the qualification erroneous or sound in a legal sense. The weight of the argument for the plaintiffs in error is that the court charged in the qualification that although the facts supposed by the point created no presumption against the validity of the codicil yet “Mr. Yardley must show by clear and satisfactory proof that the testator fully understood the testamentary disposition of his property, because it is ground for suspicion when Mr. Yardley prepared the codicil for Mr. Neill which gave him a considerable interest and directed its execution. Why a suspicion if under such circumstances there was no presumption against the validity of the codicil. Why must Mr. Yardley prove by clear and satisfactory evidence that this entirely sound-minded man who ‘ suggested and directed the alterations’ which gave Mr. Yardley ‘the considerable interest ’ really understood the testamentary disposition he suggested or. directed, if there was no presumption against the validity of the codicil made under such circumstances. The very foundation of the qualification thus made is the thought that the presumption is that the codicil is the will of Mr: Yardley and not the will of Mr. Neill and he must, therefore, by clear proof overcome this presumption and show that Mr. Neill understood the whole thing and meant to give Mr. Yardley the considerable interest. Why must Mr. Yardley show all this? Because the law under the circumstances stated presumes that Mr. Yardley as the confidential. agent
These words do not say that the fact stated created a presumption of invalidity against the will, they do not say even that it shifts the burden of proof. They say only that it is a ground of suspicion. Surely tMs is not error. If it is not a ground of suspicion it must be an indifferent fact, of no consequence in, and of, itself. But all the -cases and text writers so pronounce it. The innate sense of morality and of right which underlies all law so declares it.. Whether it is suspicious when associated
Undoubtedly this is correct. The confidential agent who wrote the will may discharge this obligation by showing that the testator was of sound, mind, and. himself directed the terms of the will, as was said in the plaintiff’s fourth point, or he may show that the precise meaning and import of the gift to the scrivener, were explained to the testator so that he thoroughly understood it, and that he knew and understood the condition of his estate and the proportion which would be taken by the scrivener. With all this the language of the qualification did not deal. It was not considering or discussing that subject, it merely asserted the existence of the obligation M question as a result of the one fact previously stated. What effect would result if the testator’s mind was weak and no explanation was made, had been fully discussed in the general charge, and of that no complaint is made. Generally the rule is announced in connection with the facts winch gave occasion for its utterance, and as' ordinarily stated, the fact that the scrivener took a large interest under the will if the testator was of weak mind, and no explanation of the condition of the estate or the amount of the gift was made, is much more than a suspicious circumstance. It is a controlling fact and determines the case against the scrivener.
If we turn to the authorities it will be apparent that the court below did not transcend them in using the language we are now considering. Thus in Redfield on Wills, 515, the writer says: “ Where the party to be benefited by the will has a controlling agency in procuring its formal execution, it is universally regarded as a very suspicious circumstance, and one requiring the fullest explanation. Thus where a will was written by an attorney or solicitor who is to be benefited by its provisions it was considered that this circumstance should excite stricter scrutiny and required clearer proof of capacity, and the free exercise of voluntary choice.” The whole of this language was embodied and adopted in the opinion of this court in the case of Boyd v. Boyd, 16 P. F. S., 283.
In Dean v. Negly, 5 Wr., on p. 317, Lowrie O. J. spealdng of the relations of attorney, guardian, and trustee, and of persons using them for their own advantage, says : “ In their legitimate operation, those positions of influence are respected; but
In the case of Harrison’s Appeal, 4 Out., 458, the very able opinion of Judge Elwell was adopted as the opinion of this court. That learned Judge discussing this very question of the effect of the fact we are considering, upon the .validity of a disputed testamentary writing says: “On this branch of the case then it only remains to inquire whether the will is rendered invalid by the fact that thu scrivener is himself a legatee in trust for others, and -that his wife, the daughter of the testator, is a legatee of the larger portion of the estate. It would be profitless in this connection, to trace the law on this subject from the civil law down through the varying decisions of the courts to the present'time. The rule in England at the present day is, that when a person prepares a will with a legacy to himself, it is at most a suspicious circumstance of more or less weight according to the facts of each particular, case, in some of no weight at all, varying according to the circumstance's, such as the quantum of the legacy, and the proportion it bears to property disposed of, bu.t in no case amounting to more than a circumstance of suspicion, demanding the vigilant care and circumspection of the court investigating the case. If there is no proof beyond the fact that the will was drawn by the legatee, the suspicion in ordinary cases would bo removed by the fact of execution with knowledge of, and assent to the contents of the instrument: Barry v. Butlin, 1 Curt., 637; Hurling v. Loveland, 2 Id., 225.”
■ In Butlin v Barry, 1 Curt., 614, the court said: “Now the principles applicable to such a case are to be collected from a variety of cases in this court sanctioned by other courts: (Paske v. Ollatt, 2 Phil., 323; Ingram v. Wyatt, 4 Hagg. Eccl. Rep., 384), and other cases founded upon precedents in the earliest times, the result of which is, that where a paper .has been drawn up by a person for his own benefit, or when he takes a considerable benefit under it, the presumption lies strongly against the act, and it requires to be proved by satisfactory evidence dehors the instrument that it was the free and voluntary act of a capable testator and executed with a full knowledge of its contents.and effect.”
When this case came up on appeal as Barry v. Butlin, 1 Curt., 637, the Court, Mr. Baron Park delivering the opinion, said, “ The rules of law according to which cases of this nature are to be decided do not admit of any dispute so far as they are necessary to the determination of the present appeal...... The second (rule)' is that if a party writes or' prepares a will under which he takes a benefit, that is a circumstance which ought generally to excite the suspicion of the court and calls
In Billinghurst v. Vickers, 1 Phill., 187, the court said: “ The presumption also is strong against an act done by the agency of the party benefited. The act is not actually defeated as it was by the civil law, provided the intention can be fairly deduced from other circumstances. Though the court will not presume fraud it will require strong proofs of intention.”
In Paske v. Ollatt, 2 Phill., 323, it was said: “The court is always1 extremely jealous of a circumstance of this nature.; By the Roman law qui se soripsit heredem could take no benefit under a will. By the law of England, this is not the case, but the law of England requires in all instances of the sort that the proof should be clear and decisive. The balance must not be left in equilibrio; the proof must go not merely to the act of signing but to the knowledge of the contents of the paper. In ordinary cases this is not necessary, but where the person who prepares the instrument and conducts the execution of it, is- himself an interested person his conduct must be watched as that of an interested person; propriety and delicacy would infer that he should not conduct the transaction.”
In Drake’s Appeal, 45 Conn., 21, it was said: '“ The amount of proof required varies with the circumstances. If the interest is small in proportion to the whole estate and the decedent at the time of making the will was in health and in the possession of his faculties, slight proof will suffice. On the other hand, if his mind is feeble and the party drawing the will takes a considerable portion of the estate to the exclusion of heirs, proof of the most conclusive nature will be required.”
There is nothing in any of these utterances at all-in conflict with the decisions of this court. On the contrary they aré quite in harmony with all we have said upon the general subject. Because we have said in cases where the facts were present, that where, a “testator is shown by evidence to be weak in mind, whether arising from age, bodily infirmity, great sorrow, or other cause tending to produce such weakness, though not sufficient to create testamentary incapacity, and the person whose advice has -been sought and taken, receives ■ a large benefit under the instrument propounded as a will, it must be shown affirmatively that the alleged testator had full understanding of the nature of the disposition contained in it,” it must not be inferred that we either said or implied that where a confidential agent acting as scrivener for a testator prepares, and superintends-the execution of a w-ill-under which he re
It is almost unnecessary to add that this rule is a rule of general application to all kinds of instruments, the procurers of which are large beneficiaries by virtue of their operation. It is a rule of equity and is of very ancient origin. In its ordinary statement the fact of mental weakness in the grantor does not appear, and is not at all necessary to the application of the rule in a given case. Many if not most of the judicial illustrations of its application are' devoid of this element: Huguenin v. Baseley, 14 Ves., 273, is a noted instance of this class, and it has been many times recognized and followed as authority by tins court. In the admirable and exhaustive notes of Hare & Wallace to that case, appearing in 2 Lead. Cas. in Equity, Part 2, p. *430, numerous instances of a similar character are cited and discussed, in which the fiduciary relation of the beneficiary was the chief basis for equitable intervention, mental weakness being quite subordinate. Of course where mental weakness is present the burden of the confidential beneficiary is vastly increased, and it may determine the case against him when the other facts might not be sufficient. After a very extendéd reading of the cases the writer feels justified in saying that in all of them the confidential relation of the beneficiary to the benefactor is a most important element of the inquiry and in none of them is it regarded as less than a circumstance of suspicion requiring explanation. The eleventh assignment is not sustained.
The same considerations apply to the fifteenth assignment and require its dismissal.
Twelfth Assignment. — The plaintiffs’ fifth point asked a binding instruction to the jury to find in their favor absolutely if they believed Mr. Neill was of sound mind and knew the contents of the codicil when he executed it. The court'could not do this without ignoring entirely the issue of undue influence, which was granted by the Orphans’ Court after this court had declared that there was evidence enough in the case to carry that question to the jury. It was the positive duty of the court below if the point was affirmed, to qualify it so as
Thirteenth assignment. — -The eighth point of the plaintiffs asked the court to say that if the will and codicil were read to Mr. Neill by his direction after they were executed and he was in a condition of mind to fully comprehend the meaning and effect of the codicil, and after hearing them read he said in substance it was what he wanted, and allowed the codicil to remain unaltered for a month or two while he was competent to direct a change therein, the jury might find for the plaintiffs on all the issues. The court declined to affirm the point, saying that although Mr Neill’s mind may have been in a condition to fully comprehend the meaning and effect of the codicil, yet if his mind had become impaired it must be clearly shown, either that it was explained to him what the value of his estate was, arid how much he was giving to Yardley, or that he fully understood the same without such explanation. We can not possibly see any error in this. The attempt of the point was to substitute a general knowledge of the meaning and effect of the codicil, for that precise and definite knowledge of the condition and amount of the estate, and the proportion of it which the confidential beneficiary was to take, which the courts have said, many times over, the testator must have in order that the testament may stand. As we understand and have repeatedly declared the law, a capacity to understand the meaning and effect of a will may co-exist with its invalidity, if the testator was of weak mind, and the principal object of his bounty was his confidential agent who wrote it. This consideration fully justified the court below in the answer given to the point. The thirteenth assignment is not sustained.
Sixteenth assignment — Complaint is made of the answer given by the court to the question asked by the jury, partly because the court did not define more precisely the degree of mental weakness on the part of the testator which would cast the duty of explanation. upon Yardley, and partly because of the concluding sentence of the answer as to whether Neill was the man he was when the will was made. If the court had said to the jury that they should find for the defendants if they found that the testator was not the same man physically and mentally when he made the codicil as when he made the will, such direction would have been open to serious objection. But the court did not say this. The question was, “ If Mr. Neill’s mind was at all impaired on the 2d of December 1876, was Yardley in that event obliged to acquaint Neill as to the probable amount which he, Yardley, would take under the residuary clause in the codicil ? If such is the law in this case would Yardley’s failure to so acquaint Neill render the codicil null and void ? ” The answer was: “ The Supreme Court has said that if the mind has become weak or impaired it is the duty of the scrivener to acquaint the testator with the value of his property, and with the amount the scrivener would take under the will. I can not undertake to draw a rule by which the degree to which a mind has weakened must be measured. If Mr. Neill’s mind has become weak such explanation must be shown, to authorize the jury to find a verdict in favor of the codicil, or, as the Supreme Court has stated it, the jury must say whether the testator was physically and intellectually the same man when he executed the codicil as when he made the original will.” This question was asked with reference.to the facts of this case.and we think the correctness of the answer must be determined by a eon
What the learned judge said in conclusion about the jury finding whether the testator was physically and intellectually the same man when he executed the codicil as when he made the original will, was preceded in the same sentence by the hypothesis that he had become of weak mind. It was a mere repetition of the very same expression used by him in the general charge, and used in such ’a manner and with such precise and definite explanations that no assignment of error has been made to it, or could be, with any hope of success. It is but fair to the court below to consider what he there said on the same subject in connection with what was said in answer to the question of the jury. The defendants’ second point asked the court to say that if the jury believed that Neill was not the same man physically and intellectually when he executed the codicil as when he made the will, the burden of proof was thrown upon Yardley to prove that Neill fully understood the value of his property and the probable residue after paying all his legacies. This the court declmed to do, saying, “ I decline to affirm this point as it is stated. It is a. question of fact for the jury to say whether the mental faculties of John L. Neill had. failed: his physical condition is comparatively unimportant except as connected with, or causing a failure of mental powers.” In the general charge the court, after explaining most carefully and correctly the effects of the possible weakening of the testator’s mental powers and the duty which in that event was cast upon YarcUey, proceeds thus, “ TMs case you will therefore see Mnges to • a great extent on the posr session by the testator of a mind that had not weakened or become impaired on the 2d of December, 1876; this implies, the retention of memory, understanding and will, and is therefore to be decided mainly by the evidence in the cause which bears directly or indirectly on this question. If you believe it has been shown that the testator’s mind had not become’ impaired, that his memory and understanding retained their full powers, that his will was as resolute and unyielding: as before he was stricken with what Dr. Drysdale characterizes as an incurable malady, your way would seem to be clear in rendering a verdict in favor of the plaintiffs on all the issues. .....On the other hand, if the evidence satisfies you that testator’s mind w;as weakened, that he had gone down both physically and mentally under the afflictions which fell upon
Judgment affirmed.