The opinion of the Court was delivered by
Huston, J.
This case arose on a dispute in the Register’s [134]*134Court, to try whether a certain paper writing was the last will and testament of Lunar Browne, deceased.
The paper book submitted to us is exceedingly brief, or rather the account contained in it of what occurred in the Court below, is very brief, in some respects unsatisfactory, and in some, (as appeared by inspecting the record,) defective. Perhaps there is no class of cases in which so much testimony is given, which ought to have no weight with a jury, as in cases on wills, in which the allegation is.*that the testator was insane; or in legal phrase, not of sound and disposing mind and memory. How far age or sickness, acute, or long continued, does actually affect the mind, is not known; or not so well known, as to be reduced to any rule. Or what effect any of those disorders which sometimes peculiarly affect the mind, as paralysis, has produced in the particular case, is not easily settled. I remember a case in the Circuit Court, in this city, in which somewhere between ten and twenty medical men of the highest standing in the city and county, were examined; and some proved that in all cases of paralysis the mind was affected to some extent; others, that in many cases it was not at all affected, &c., &c.
Something like this often occurs, when the effect of old age is the subject of inquiry. And certainly nothing can be collected from the number of years which have elapsed since a man’s birth. In some, the body and mind seem worn out at three score and ten or before it; in others, both body and mind are capable of much, and energetic action, for years after four score. We know not the age of the testator in this case; he was a coloured man and illiterate; no record was made, or none preserved of his birth; it seems agreed he was four score or upwards.
The exceptions are to the opinion of the Court on certain questions put by the counsel to several witnesses; and to the charge of the Court.
The plaintiff below, (here defendant,) called J. H. Cavender who drew the will; we have nothing of his testimony in this part of the paper book. Then he called A. Lukens, one of the witnesses to the will, who proved its execution, and then said, “ I know nothing about his, Lunar Browne’s, being able to read, nor of his having made a will before. When this will was executed, he said this is to do away the other. I suppose by his saying that, there was another. I have heard both the daughter and the son say, there had been another will. I never heard her say this will had been drawn from the other.” Defendant’s counsel then asked the witness whether he had ever heard the plaintiff, Ann Molliston, say, what had become of the former will, and whether it was destroyed. This was objected to, as being a leading question, not to any cross-examination on the subject of [135]*135the testimony in chief, but to a fact which might occur as part of the defendant’s case. The Court overruled the testimony.
Certainly this was not a cross-examination, for it had no connection with the execution of the will. We are told here, that the defendant below alleged that the will in question was procured by duress or undue influence, or in some other illegal way by Ann Molliston. But when this question was put, the defendant had not opened his case. The Court would know nothing of it. It is irregular to introduce in the way attempted here, the ground on which the defendant intends to rely. The Court cannot know whether it is or *will be material; and it was not error to reject it at that stage of the cause: we shall have to notice it in another shape hereafter.
The next exception is as follows: S. Underwood was called by the defendant, and asked whether he was present at any conversation between the testator and Ann Molliston, as to the disposition of his property, and what that conversation was ? This was objected to; and rejected as not being connected with the present testamentary disposition. Although the paper book don’t expressly say so, the defendant must have admitted it had no relation to the last disposition of his estate. A man may change his mind as to the disposition of his property; and may change his will at any time as long as he lives. It would be idle, useless, and immaterial, to prove what a man said many years ago on this subject, or one year ago, unless something else is adduced, to impugn the will of last week. If it were not so, the law requiring a written will, is worse than useless. It would go for nothing as often as witnesses could be found to prove that the testator once said he would make a different disposition of his estate. The witness then stated, that he went with Ann Molliston to Mr. Kline, who had the former will; that she got it and took it home. (She was the daughter of the testator, and used to live with him.) Witness was then asked what the plaintiff said in regard to that will which she got from Mr. Kline; this was objected to and overruled. Witness was then asked if the plaintiff ever told him what became of that former will — this also was objected to and overruled. Mr. Kline was then called, and proved that he wrote the former will, and gave it to the plaintiff. And he was then asked what were the contents of that will? — which was objected to and overruled. Exceptions were taken in each of these cases, and they were argued together; it being understood, that the object of them all was to get in parol proof of the contents of the former will. And first, no notice had been given to produce it; and without this, you cannot give parol evidence of the contents of a paper. It was replied, that one of the questions went to prove that Ann Molliston said it was destroyed, but the question will [136]*136hardly hear that construction. “ What Ann Molliston told him had become of that former will” ? The answer that she said it was destroyed, is not necessarily to be supposed; and it is as probable some other answer would have been given. But suppose the witness had testified that she said it was lost or torn-; would that dispense with a notice to produce it ? I doubt this. If the witness had seen it burnt, or torn and scattered, a notice to produce might be useless. But many a lost paper has been found; and many a paper supposed to be destroyed, is found still in existence. We need not settle this matter. If a direct offer had been made to prove she had said it was destroyed, we do not know that it would have been rejected. If such was the expectation from the question, it is not easy to see why a plain question on that subject was not put.
*Uut if it was destroyed, the proof was, that at executing the present will, the testator said, it was to do the other away; and unless there was proof of incapacity of the testator to make the present will, or fraud or misrepresentation in procuring it, how could the existence or destruction, or the contents of the former will, be material ? If there was no evidence, and we see none in our paper book, of mental imbecility, or fraud, or misrepresentation, or force, the Court must have told the jury, that it was totally immaterial, whether the former will was or was not destroyed; and equally immaterial, what were its contents.
The next bill of exceptions was passed over. The last was this: — The witness who had written the will was called again after the defendants had closed, and asked, who gave him instructions to write the will; this was objected to and admitted.
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The opinion of the Court was delivered by
Huston, J.
This case arose on a dispute in the Register’s [134]*134Court, to try whether a certain paper writing was the last will and testament of Lunar Browne, deceased.
The paper book submitted to us is exceedingly brief, or rather the account contained in it of what occurred in the Court below, is very brief, in some respects unsatisfactory, and in some, (as appeared by inspecting the record,) defective. Perhaps there is no class of cases in which so much testimony is given, which ought to have no weight with a jury, as in cases on wills, in which the allegation is.*that the testator was insane; or in legal phrase, not of sound and disposing mind and memory. How far age or sickness, acute, or long continued, does actually affect the mind, is not known; or not so well known, as to be reduced to any rule. Or what effect any of those disorders which sometimes peculiarly affect the mind, as paralysis, has produced in the particular case, is not easily settled. I remember a case in the Circuit Court, in this city, in which somewhere between ten and twenty medical men of the highest standing in the city and county, were examined; and some proved that in all cases of paralysis the mind was affected to some extent; others, that in many cases it was not at all affected, &c., &c.
Something like this often occurs, when the effect of old age is the subject of inquiry. And certainly nothing can be collected from the number of years which have elapsed since a man’s birth. In some, the body and mind seem worn out at three score and ten or before it; in others, both body and mind are capable of much, and energetic action, for years after four score. We know not the age of the testator in this case; he was a coloured man and illiterate; no record was made, or none preserved of his birth; it seems agreed he was four score or upwards.
The exceptions are to the opinion of the Court on certain questions put by the counsel to several witnesses; and to the charge of the Court.
The plaintiff below, (here defendant,) called J. H. Cavender who drew the will; we have nothing of his testimony in this part of the paper book. Then he called A. Lukens, one of the witnesses to the will, who proved its execution, and then said, “ I know nothing about his, Lunar Browne’s, being able to read, nor of his having made a will before. When this will was executed, he said this is to do away the other. I suppose by his saying that, there was another. I have heard both the daughter and the son say, there had been another will. I never heard her say this will had been drawn from the other.” Defendant’s counsel then asked the witness whether he had ever heard the plaintiff, Ann Molliston, say, what had become of the former will, and whether it was destroyed. This was objected to, as being a leading question, not to any cross-examination on the subject of [135]*135the testimony in chief, but to a fact which might occur as part of the defendant’s case. The Court overruled the testimony.
Certainly this was not a cross-examination, for it had no connection with the execution of the will. We are told here, that the defendant below alleged that the will in question was procured by duress or undue influence, or in some other illegal way by Ann Molliston. But when this question was put, the defendant had not opened his case. The Court would know nothing of it. It is irregular to introduce in the way attempted here, the ground on which the defendant intends to rely. The Court cannot know whether it is or *will be material; and it was not error to reject it at that stage of the cause: we shall have to notice it in another shape hereafter.
The next exception is as follows: S. Underwood was called by the defendant, and asked whether he was present at any conversation between the testator and Ann Molliston, as to the disposition of his property, and what that conversation was ? This was objected to; and rejected as not being connected with the present testamentary disposition. Although the paper book don’t expressly say so, the defendant must have admitted it had no relation to the last disposition of his estate. A man may change his mind as to the disposition of his property; and may change his will at any time as long as he lives. It would be idle, useless, and immaterial, to prove what a man said many years ago on this subject, or one year ago, unless something else is adduced, to impugn the will of last week. If it were not so, the law requiring a written will, is worse than useless. It would go for nothing as often as witnesses could be found to prove that the testator once said he would make a different disposition of his estate. The witness then stated, that he went with Ann Molliston to Mr. Kline, who had the former will; that she got it and took it home. (She was the daughter of the testator, and used to live with him.) Witness was then asked what the plaintiff said in regard to that will which she got from Mr. Kline; this was objected to and overruled. Witness was then asked if the plaintiff ever told him what became of that former will — this also was objected to and overruled. Mr. Kline was then called, and proved that he wrote the former will, and gave it to the plaintiff. And he was then asked what were the contents of that will? — which was objected to and overruled. Exceptions were taken in each of these cases, and they were argued together; it being understood, that the object of them all was to get in parol proof of the contents of the former will. And first, no notice had been given to produce it; and without this, you cannot give parol evidence of the contents of a paper. It was replied, that one of the questions went to prove that Ann Molliston said it was destroyed, but the question will [136]*136hardly hear that construction. “ What Ann Molliston told him had become of that former will” ? The answer that she said it was destroyed, is not necessarily to be supposed; and it is as probable some other answer would have been given. But suppose the witness had testified that she said it was lost or torn-; would that dispense with a notice to produce it ? I doubt this. If the witness had seen it burnt, or torn and scattered, a notice to produce might be useless. But many a lost paper has been found; and many a paper supposed to be destroyed, is found still in existence. We need not settle this matter. If a direct offer had been made to prove she had said it was destroyed, we do not know that it would have been rejected. If such was the expectation from the question, it is not easy to see why a plain question on that subject was not put.
*Uut if it was destroyed, the proof was, that at executing the present will, the testator said, it was to do the other away; and unless there was proof of incapacity of the testator to make the present will, or fraud or misrepresentation in procuring it, how could the existence or destruction, or the contents of the former will, be material ? If there was no evidence, and we see none in our paper book, of mental imbecility, or fraud, or misrepresentation, or force, the Court must have told the jury, that it was totally immaterial, whether the former will was or was not destroyed; and equally immaterial, what were its contents.
The next bill of exceptions was passed over. The last was this: — The witness who had written the will was called again after the defendants had closed, and asked, who gave him instructions to write the will; this was objected to and admitted. And he answered : “I did not receive instruction of any person but Lunar Browne; but in one instance while he was giving the instructions, she, Ann Molliston, corrected my mention of a name. I drew the will from those instructions.”
To be sure, this might have been asked at the first examination in chief; but it would not be so necessary until some evidence to some allegation had been made against the will; after such, it was as to such evidence or allegation strictly rebutting; and indeed it would be a singular case in which we would reverse, because a party who had omitted to ask a question at the most proper moment, called back a witness and asked what might have been told before. It must be a case in which some new witness is called to prove some new fact of which the other party was not apprised, or where the witness of the other party as to that point had been dismissed, after the testimony in chief was closed.
The next error assigned is to the charge of the Court. By some [137]*137inadvertence, the words given as tbe charge of tbe Court, are only part of a sentence, and not even tbe correct substance of what tbe judge said.
The substance of tbe charge on this point, as we find it by recurring to tbe record is, “ That tbe decedent must be presumed to be competent to make a will, until tbe contrary is proved. That tbe presumption of competency is not destroyed by any extremity qf age, though it may be weakened, where tbe testator is very old, and circumstances additional are proved; but taken alone, it matters not that tbe testator was a hundred years old at tbe time of executing tbe will. That facts and circumstances are tbe primary evidence on which a jury must rely, and not tbe opinion of witnesses as to tbe soundness of mind, or capacity to make a will. That it is tbe opinion of tbe jury, founded on facts and circumstances proved, and not tbe opinions of witnesses, which is to decide tbe case.” Now, in this there is no error.
Tbe next error is assigned in tbe judge stating to tbe jury, *the influence exercised in procuring a will, which is sufficient to set it aside, must be such as destroys free agency. There must be imprisonment of tbe body or mind. And that unless tbe jury are satisfied that there was such physical force exerted, arising from actual duress or imprisonment of tbe body, or such mental force arising from threats, as prevented free agency, they were not to consider tbe influence exerted by Ann Molbston as improper, or sufficient to invalidate tbe will.” Tbe cases cited support this opinion. Besides we have not before us any testimony to show what she did; and we cannot say that a charge is wrong on conjecture as to tbe facts to which it applied. There is no allegation of fraud or falsehood being used by her ; or none to be found in our paper boob.
Judgment affirmed.
Cited, by Counsel, 4 Wharton, 318: 8 Harris, 330: 11 Id. 118: 5 Wright, 316.
Cited by the Court, 11 Harris, 379.