Tore, C. J:—
We think this testimony is admissible. It is the effect of the use of alcoholic liquors upon the testator’s mind that the caveators seek to prove. Whether they prove it or not is another matter; but it is to be brought down and connected with the time of the making of the will, otherwise it has little or no effect.
Spruancb, J:—
Barring any nice inquiry as to whether the physician knew in fact the condition of the man’s mind at the time the will was made, about which there is some little doubt, yet when he did see him last, which it seems would be not very far from the time when the will was made, his testimony was that then and prior to that time his mind was in a weakened state and impaired, and in his opinion it was produced by the use of intoxicants. So that the purpose is not to prove that he was drunk when he made this will, or when he gave the instructions, but that in this man’s life there was that which would support the theory or position as to how that state of mind came about, to wit: by the use or abuse of' the use of intoxicants.
I think the testimony is competent. Of course I would not let that spread over too much time, but it seems to me you could prove that to be his habit and the degree to which it ran.
The witness, Michael Maloney, was asked by the counsel for the caveators what conversation, if any, he had with Michael Kane with reference to his will two or three days after the execution of the same, the statement of the testator sought-to be introduced being as follows : “ I did not make it; Jimmie and the old woman made it. ’ ’
[93]*93Mr. Lynam, for the Propounders, objected to the question as immaterial. The object of the Caveators was evidently to prove undue influence by the declarations of the testator after the execution of the will, which was clearly inadmissible.
Redfield on Wills, 542-547; Jackson vs. Kniffin, 2 Johnson, 30; 1 Kernan's Reports, (11 N. Y.), 160.
Counsel for Caveators stated that the evidence was offered to show the mental contition of the testator at the time of the making of the will, from the conversation had with the witness regarding the making of said will, and for that purpose it was clearly admissible.
Redfield on Wills, *553; Rusling vs. Rusling, 36 New Jersey Equity Reports, 603; Shalor vs. Bumpstead, 99 Mass., 121; McTaggart vs. Thompsou, 14 Penn. State, 151; In Re Clark, 40 Hun. (Supreme Court of N. Y.), 237; Canada's Appeal from Probate, 47 Conn., 463; Robinson vs. Hutchinson, 26 Vermont, 37 and 45; Bates vs. Bates, 27 Iowa, 113; Potter vs. Baldwin, 133 Mass., 427; Reynolds vs. Adams, 90 Ill., 146.
Lore, C. J:—
We understand that this is an offer on the part of the parties resisting the will to prove that the testator said, shortly after making the will, “I did not make it; Jimmie and the old woman made it;” that the offer of the testimony is not to prove the fact of undue influence or anything that would be in the nature of a revocation of the will, but to show the mental condition of the testator at the time of making the will.
After a careful examination of the authorities, and consider, ing the rule or the principle underlying the question, a majority of the Court think that this testimony ought to be admitted. The line seems to us to be quite clearly drawn, that after a man has formally made his will, a formal written instrument signed and executed by him, he may not in effect by any subsequent conversation revoke that will, nor would his evidence in any way be admissible in order to prove any fact which would be in the nature of a revocation.
But where a declaration is made within a reasonable time, where one ground of objection to the will is mental incapacity, subject to undue influence, the declaration made shortly after the [94]*94making of the will, that 111 did not make it; Jimmie and the old woman made it,” the majority of the Court think ought to go to the jury for what it is worth; that the fact that a man who one day makes a formal instrument, and the next day says to somebody he did not do it, ought to go the jury, being so nearly connected with the time, in order to throw light upon his mental condition at the time of the making of the will.
Jarman has expressly stated that ‘ ‘ Evidence may be given of the state of the testator’s mind and of his bodily health, both before and after the time when the will was made; still, such evidence is no otherwise to be regarded than as shedding light upon the condition of his mind at that time.”
The majority of the Court think that if a man should make such declarations a little time after the making of the will, it is a fact which would have relation to the mental condition of the testator at the time of making the will; that it throws light upon his mental condition at that time, and it goes to the jury for what it is worth to show his mental condition at that time.
We think that probably the position taken has grown out of the fact that the Court has, in some cases, endeavored to relieve against the particular hardship and has not followed the broad rule that where the declaration has been made within a reasonable time it is admissible to throw light upon the mental condition at the time of making the will, and that it ought to go to the jury for what it is worth to show whether at the time of making the will the man’s mind was impaired and susceptible to undue influence.
Bovcp, J:—
I, too, regret that the Court are divided upon a question of such importance as the one now presented for our consideration and determination.
If it were now sought to introduce in evidence the simple, bald ánd naked declarations of the testator (independently as it were) made subsequently to the execution of the paper writing purporting to be his last will and testament, and without any evidence previously offered, showing or attempting to show either insanity or imbecility of mind of the testator, and for the purpose of working a revocation of the testator’s will, or to attack its valid[95]*95ity on the ground of duress or undue influence, then the Court agree that such declarations should not be admitted in evidence. We understand that the counsel seeking the admission of this testimony himself admits that any such declarations are not evidence to go to the jury for the purpose of attacking the validity of the will. They are admitted for another purpose which I will now attempt to show. In cases of this character where testimony has been offered, as in this case, to show a want of testamentary capacity of the testator, the sufficiency of which is, of course, for the jury to determine, it does seem from well considered cases, founded upon sound reasoning and judgment, that subsequent declarations of the testator, made near the time of making his will (the declarations sought to be offered in this case were made, we are informed, within two or three days thereafter) may be given in evidence to throw light upon the testamentary capacity of the testator and to aid the jury in determining the mental condition of the testator, and for this purpose only. The admission of this testimony is not sought, as we understand, nor do a majority of the Court allow it to go to the jury as evidence of the fact of a revocation of the will, or of duress, or of undue influence, or of anything else as a fact, attacking the validity of the will.
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Tore, C. J:—
We think this testimony is admissible. It is the effect of the use of alcoholic liquors upon the testator’s mind that the caveators seek to prove. Whether they prove it or not is another matter; but it is to be brought down and connected with the time of the making of the will, otherwise it has little or no effect.
Spruancb, J:—
Barring any nice inquiry as to whether the physician knew in fact the condition of the man’s mind at the time the will was made, about which there is some little doubt, yet when he did see him last, which it seems would be not very far from the time when the will was made, his testimony was that then and prior to that time his mind was in a weakened state and impaired, and in his opinion it was produced by the use of intoxicants. So that the purpose is not to prove that he was drunk when he made this will, or when he gave the instructions, but that in this man’s life there was that which would support the theory or position as to how that state of mind came about, to wit: by the use or abuse of' the use of intoxicants.
I think the testimony is competent. Of course I would not let that spread over too much time, but it seems to me you could prove that to be his habit and the degree to which it ran.
The witness, Michael Maloney, was asked by the counsel for the caveators what conversation, if any, he had with Michael Kane with reference to his will two or three days after the execution of the same, the statement of the testator sought-to be introduced being as follows : “ I did not make it; Jimmie and the old woman made it. ’ ’
[93]*93Mr. Lynam, for the Propounders, objected to the question as immaterial. The object of the Caveators was evidently to prove undue influence by the declarations of the testator after the execution of the will, which was clearly inadmissible.
Redfield on Wills, 542-547; Jackson vs. Kniffin, 2 Johnson, 30; 1 Kernan's Reports, (11 N. Y.), 160.
Counsel for Caveators stated that the evidence was offered to show the mental contition of the testator at the time of the making of the will, from the conversation had with the witness regarding the making of said will, and for that purpose it was clearly admissible.
Redfield on Wills, *553; Rusling vs. Rusling, 36 New Jersey Equity Reports, 603; Shalor vs. Bumpstead, 99 Mass., 121; McTaggart vs. Thompsou, 14 Penn. State, 151; In Re Clark, 40 Hun. (Supreme Court of N. Y.), 237; Canada's Appeal from Probate, 47 Conn., 463; Robinson vs. Hutchinson, 26 Vermont, 37 and 45; Bates vs. Bates, 27 Iowa, 113; Potter vs. Baldwin, 133 Mass., 427; Reynolds vs. Adams, 90 Ill., 146.
Lore, C. J:—
We understand that this is an offer on the part of the parties resisting the will to prove that the testator said, shortly after making the will, “I did not make it; Jimmie and the old woman made it;” that the offer of the testimony is not to prove the fact of undue influence or anything that would be in the nature of a revocation of the will, but to show the mental condition of the testator at the time of making the will.
After a careful examination of the authorities, and consider, ing the rule or the principle underlying the question, a majority of the Court think that this testimony ought to be admitted. The line seems to us to be quite clearly drawn, that after a man has formally made his will, a formal written instrument signed and executed by him, he may not in effect by any subsequent conversation revoke that will, nor would his evidence in any way be admissible in order to prove any fact which would be in the nature of a revocation.
But where a declaration is made within a reasonable time, where one ground of objection to the will is mental incapacity, subject to undue influence, the declaration made shortly after the [94]*94making of the will, that 111 did not make it; Jimmie and the old woman made it,” the majority of the Court think ought to go to the jury for what it is worth; that the fact that a man who one day makes a formal instrument, and the next day says to somebody he did not do it, ought to go the jury, being so nearly connected with the time, in order to throw light upon his mental condition at the time of the making of the will.
Jarman has expressly stated that ‘ ‘ Evidence may be given of the state of the testator’s mind and of his bodily health, both before and after the time when the will was made; still, such evidence is no otherwise to be regarded than as shedding light upon the condition of his mind at that time.”
The majority of the Court think that if a man should make such declarations a little time after the making of the will, it is a fact which would have relation to the mental condition of the testator at the time of making the will; that it throws light upon his mental condition at that time, and it goes to the jury for what it is worth to show his mental condition at that time.
We think that probably the position taken has grown out of the fact that the Court has, in some cases, endeavored to relieve against the particular hardship and has not followed the broad rule that where the declaration has been made within a reasonable time it is admissible to throw light upon the mental condition at the time of making the will, and that it ought to go to the jury for what it is worth to show whether at the time of making the will the man’s mind was impaired and susceptible to undue influence.
Bovcp, J:—
I, too, regret that the Court are divided upon a question of such importance as the one now presented for our consideration and determination.
If it were now sought to introduce in evidence the simple, bald ánd naked declarations of the testator (independently as it were) made subsequently to the execution of the paper writing purporting to be his last will and testament, and without any evidence previously offered, showing or attempting to show either insanity or imbecility of mind of the testator, and for the purpose of working a revocation of the testator’s will, or to attack its valid[95]*95ity on the ground of duress or undue influence, then the Court agree that such declarations should not be admitted in evidence. We understand that the counsel seeking the admission of this testimony himself admits that any such declarations are not evidence to go to the jury for the purpose of attacking the validity of the will. They are admitted for another purpose which I will now attempt to show. In cases of this character where testimony has been offered, as in this case, to show a want of testamentary capacity of the testator, the sufficiency of which is, of course, for the jury to determine, it does seem from well considered cases, founded upon sound reasoning and judgment, that subsequent declarations of the testator, made near the time of making his will (the declarations sought to be offered in this case were made, we are informed, within two or three days thereafter) may be given in evidence to throw light upon the testamentary capacity of the testator and to aid the jury in determining the mental condition of the testator, and for this purpose only. The admission of this testimony is not sought, as we understand, nor do a majority of the Court allow it to go to the jury as evidence of the fact of a revocation of the will, or of duress, or of undue influence, or of anything else as a fact, attacking the validity of the will. But we admit it as any other evidence which in the proper discretion of the Court may be admitted when offered affecting the mental condition of the testator, and as I have said for the purpose of throwing light upon the real mental condition of the testator.
The case in 1 Kernan (11 N. Y. Court of Appeals), 160, as well as the case of Reynolds vs. Adams, 90 Ill., 146, leaves very little room for doubt as to the admissibility of the testimony. They are well considered cases, and they satisfy my mind that this testimony should be allowed to go to the jury for the purpose already stated.
In the last mentioned case, and on page 148, it is said: “Much of the difficulty, however,’’ (meaning in cases of this character) “ had arisen from the omission to distinguish with sufficient clearness between the different objects for which the declarations of the testator may be offered in evidence in cases involving the validity of their wills.’’ And a distinction is shown between offering the testimony for the purpose of a revocation of [96]*96the will, or to impeach the validity thereof for duress or undue influence, and offering it to show the mental capacity of the testator. Indeed, after a careful examination of the authorities, the Court said: “The rule deducible from the cases on this subject is, that while the declarations of a testator are not admissible to show an express revocation of his will, or the fact it was executed under duress or from undue influence, they may nevertheless be proved, and used to show his mental condition at the time of the execution of the will, or so near the time the same state of affairs must have existed.”
In McTaggart vs. Thompson, 14 Pa. St. Reports, 149, “it was distinctly ruled that declarations of a testator, though made after the execution of the will, are admissible in such cases as evidence of imbecility of mind. ’ ’
I think the testimony should be admitted.