In re the Proof of the Will of Nadal

2 Haw. 400, 1861 Haw. LEXIS 10

• Court: Hawaii Supreme Court
• Decided: February 20, 1861
• Status: Published

Opinions

Justice Robertson

delivered the decision of the majority of the Court as follows :

On the 9th of August last, the Right Rev. Louis Maigret, Roman. Catholic Bishop at Honolulu, filed a petition, as sole legatee, for probate of the last will of Jose Nadal, late “of Honolulu, deceased, before the Chief Justice at Chambers. The hearing was set for the 18th of August, and upon that day counsel appeared to contest the will offered for proof, on behalf of Prince L. Kamehameha. On the 6th of September, the Chief Justice gave judgment in favor of the validity of the will, and thereupon an appeal to the full Court was noted on behalf of the contestant.

When the matter came up for hearing on appeal, counsel for the contestant moved the Court to impannel a jury, to try the issues of fact involved in the cause, in virtue of Section 854 of the Civil Code, which provides that in all matters to be tried before a single Justice, a special jury may be impanneled, at the discretion of the Court, to try issues of fact. The Gourt overruled the motion on the ground that, by Section 1,241 of the Civil Code, it is expressly provided that all probate causes shall be heard and determined by the Court or Justice, without the intervention of a jury, making that class .of cases, as it always was, before the enactment of the Code, an express exception to the general rule, as laid down in Section 854.

It appears, by the testimony, that Jose Nadal died in the Queen’s Hospital, on the 8d of August, whither he had removed from Makiki about a fortnight before. On the 21st of July he executed a document, in the Hawaiian language, purporting to be a will, by which he bequeathed all his property to Prince L. Kamehamha,.with a proviso that he should give a part of the property to the decedent’s daughter, Catalina Nadal, who resides at Santa Barbara, in California ; and on the 30th of July he executed the document now presented for probate, which is in the English language, and dated the 31st of July, bequeathing all his property to “ the Rev. Dr. Maigret, Roman Catholic Bishop of the Sandwich Islands, his heirs and assigns,” and appointing William Bromley Barnes his executor.

Nadal was afflicted for a number of years previous to his death with chronic rheumatism and asthma, and latterly with dropsy produced by disease of the heart. He was always a superstitious man — a believer in spectres and native charms. After entering the Hospital, his weakness in this respect became excited by disease, and by the fear of approaching dissolution. He was afraid, even in the day-time, to be left alone in his chamber for a week before he died, shedding tears if left alone, and saying that he saw supernatural sights and evil spirits. A woman died in the Hospital about the 26th of July, hnd he expressed his fear that her ghost would come for him. Sometimes he was observed to stretch out his hand, saying, “ Go away, go away! I don’t want you,” as if speaking to sopie spectre which he fancied he saw. At times he conversed with another patient who slept in the same room about religion, saying he had been a great sinner, and asking to have portions of the New Testament read to him. He was visited by some of the priests and members of the Roman Catholic Church, to which he belonged. Bishop Maigret visited him a few days before his death. He was also visited by Mr. John Ii about the 1st of August, to whom he stated in conversation that he saw spectres, and was much troubled by some natives at Makiki, who were working incantations against him; and that he had made a will bequeathing his property to Prince L. Kamehameha, to whom, and to whose family, he expressed his gratitude for long continued favors. Some conversations between Nadal and other parties, in relation to his intended disposition of his property, were given in evidence. About four years ago he stated to Robert E. Wakeman that he should leave his property to the Bishop, as “ that was his religion.” Subsequently, he stated to Mr. Haa: lelea, and to Mr. R. G. Davis, at different times, that he intended to leave his property to Prince Kamehameha. Eor the last ■ twenty-six hours previous to his dissolution he was in a comatose state. He is believed to have been a native of Spain, but had resided in this country for many years.

The validity of the instrument now presented as a will is con-f tested on several grounds: First, that it is evidently the offspring of an insane state of mind — the result of mental terror, and not of natural desire or intention ; secondly, that the will presented would carry the property to Bishop Maigret and his personal representatives, not to the Church, as Nadal intended; thirdly, that if it was made by the* decedent for “ the benefit and rest of his soul,” it is a will to superstitious uses, and ought, therefore, to be held void. ;

Upon examining the evidence, we find one deficiency in the proof of the execution of the document. By Section 1465 of the Civil Code, it is required that every will shall be “ attested' by two or more competent witnesses subscribing their names to the will, in the presence of the testator.” There are two subscribing witnesses to this instrument, but it is not expressly proven that one of them, Alfred Doiron, subscribed his name in NadaFs presence. If the Court should refuse probate on that ground, the proponent might, probably, under our practice, renew his application, upon affidavit; and as the contestant has not raised the objection, we presume he is satisfied from all the evidence that the document was ■ in fact executed with the formality which the statute prescribes.

There is another and a much more important point in the cause, which constitutes the second ground of objection raised by counsel, and which should naturally be considered and disposed of before adverting to t*he other two. The point arises from the apparent variance between the form and legal effect of the instrument now propounded, and the verbal instructions which the decedent gave for the preparation of a will. Admitting that the document now presented was duly executed by the decedent while he was possessed of full capacity to make a disposition of his property, there is still a most important question to be determined by the Court, as to whether or not this instrument does in fact express the mil of Jose Nadal; for it is the mental volition, the intention and consent, of the party, that give life to the instrument. “A will,” says Sir John Nicholl, “ means not barely the signing of it, and the formal publication or delivery, but proof in the language of the condidit, that he well knew and understood the contents thereof, and did give, will, dispose and do, in all things as in the said will contained.” (Zacharias vs. Collis, 8 Phillimore, 179.) Swinburne, in his excellent Treatise, says, “ This word Testamentum is as much as testatio mentis, that is to say, a testifying or witnessing of the mind.” And in giving the definition of a testament, he says, ■ “A testament is a just sentence of our will, touching that we would have done after our death.” And, again, “ Eor without meaning or consent of mind, the testament is altogether without life ; and is no more a testament than a painted lion is a lion." (Swinburne on Wills, Part First, Secs. 1, 2, 3.)

Let us now refer to a portion of the testimony in the present cause. It appears that Nadal was visited at the Hospital by Mr. Jason Perry, a Portuguese by birth, and a friend of the decedent. Mr. Perry, who is the chief witness introduced to establish the will now propounded, is* an intelligent and highly respectable member of the Roman Catholic Church. He stated that Nadal requested him to have a will drawn up disposing of his property, and told him how he wished it made ; and that he communicated Nadal’s instructions to Mr. Walter Lee, a solicitor, who drew the will now presented. Upon the question being asked by counsel, “Did Nadal direct his property to be left to the Bishop personally ? ” the witness replied “ Yes,” and then repeated the decedent’s own expression, “To the Roman Catholic Bishop, he said, for the benefit and rest of his (Nadal’s) soul. I told Mr. Lee that the will was to be made for the benefit and rest of his soul. I cannot say how it was that it was drawn to Bishop Maigret, his heirs and assigns.” And on being asked, as a Roman Catholic, what he understood by the decedent’s words, he replied, “I should say that the words, ‘to.be for the benefit and rest of his soul,’ mean, for prayers for the rest of his soul.” In the incidental conversation with the witness Wake-man, too, it may be observed that Nadal said, “ he should leave all his property to the Gatholio Bishop, because that was his religion ; ” the fair- import of • which expression we understand to correspond with the witness Perry’s explanation of the decedent’s language to him, viz : an intention to bequeath his property to the person holding the office of Bishop at the time of his death, for the purpose of having masses or prayers said for the rest of his soul; for his religion did not require him to bequeath his property to Bishop Maigret personally.

The variance, as to legal effect, between the instrument drawn by Mr. Lee, and an instrument drawn in accordance with Nadal’s instructions to Mr. Perry, is quite clear. The first is a will in favor of Bishop Maigret, as a private individual, to the'sole use and benefit of himself and his personal representatives, Avhile the other would have been a will in favor of the Roman Catholic Bishop, in his official capacity, as trustee for the Church, to secure the celebration of masses or prayers for the rest of the testator’s soul; that is to say, a will in favor of the Church. This distinction was not overlooked by the proctor for the proponent, who, in the course of his ai’gument,' admitted that if the Court could find this document to be a will,in favor of the Church, his client could not take under it. He argued correctly .that this is a will in favor of Dr. Maigret and his heirs ;' and in order to remove any doubt as to his client’s capacity to acquire property to his private use, he introduced as á witness Mr. Modeste, a Roman Catholic priest, who testified that the clergymen of that Church here are of the order of the Sacred Heart, and are not precluded by the rules of their order from acquiring property to themselves, by inheritance, gift, or any other legal way.

The very fact that 'this is not a will in favor of the Church, but a will in favor of an individual, forms the first point at issue, and first strikes at the validity of the instrument; for, while the law has not made it requisite that a will should assume any particular form, or be couched in language technically appropriate, it should disclose the real intention of the maker respecting the posthumous destination of his property. (Jarman on Wills, Vol, I., page 13.) But it is argued that the document now presented was duly executed by Nadal, after it had been read over to him, and had received his approval, and therefore with a proper knowledge of its conténts and import. Under the circumstances of the case, the onus clearly rests upon the proponent to establish that position. Speaking of the rules governing cases where wills are prepared by parties who take an interest under them, and thereby suspicion is raised as to the validity of the wills, which rules would seem to be equally applicable in cases like the present, the learned Mr. Baron Parke, in Barry vs. Butlin, said, on behalf of the Judicial Committee of the Privy Council, “ 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, and they have been acquiesced in on both sides. These rules are two, the first that the onus probando lies in every case upon the party propounding a will, and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator. The second 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 upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favor of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased. These principles, to the extent that I have stated, are well established.” (Jarman on Wills, page 44, note 4.) The same principles, we apprehend, are applicable in any case, where from the circumstances there are well founded doubts as to. whether or not the testator had full knowledge of the contents, and.leg'al import, of the instrument propounded. Mr. Surrogate Bradford, of New York, in the case of Burger vs. Hill, which is a case much in point, held that, besides being satisfied as to the capacity of the decedent, it is for the Probate Court to determine, whether in performing the particular act in question he had an intelligent understanding of the contents and effect of the instrument executed as a will; and that, generally, the animus testandi is to be inferred from the act of signing and formal publication ; but where the capacity is weakened and impaired, though not destroyed, and there is evidence of undue influence, fraud, imposition, or mistake,‘the presumption derived from formal execution, may be diminished or entirely overcome. (Bradford’s Rep., Vol. 1, page 360.) The same learned Judge held, in the case of Weir vs. Fitzgerald, that, “ Besides mere formal proof of execution, something more is necessary to establish the validity of a will when, from the infirmities of the testator, his impaired capacity, or the circumstances attending the transaction, the usual inference cannot be drawn from the formal execution. Additional evidence is required that his mind accompanied the will, and that he was cognizant of its provisions.” (Bradford’s Rep., Vol. 2, page 42.) The language of Bradford, in the case of Burger vs. Hill, is applicable in the present case. Speaking of the testator, he said: “He obviously .meant to make a will, but whether he intended to make this particular will, whether his instructions were comprehended, whether they were correctly put in writing, whether when the will was read he understood its contents, whether they conformed to his real wish, whether in fact this is his will, is to be determined only by a considerate examination of all the circumstances attending the transaction.”

In addition to the fact that the instrument propounded in this case wa's duty executed, there is proof that it was read over to the decedent' in the English language by Mr. Perry, who, on his examination, said, “ I took the will to be signed on the afternoon of, the same day that it was made. I read it over to him slowly. I asked him in English if he understood Avhat I Avas reading, and he said he did ; and after he had signed he began to speak Spanish. I don’t know whether he understood Avhat ostentation meant or not. I think he understood enough to know the meaning of -the Avill.” Mr. Doiron testified : “ I heard the will read over by Mr. Perry. The deceased seemed to understand it. Perry asked him twice if he understood it, and he said yes.”

On the other hand, it is clear, as already observed, that the instrument varies materially from the instructions given by Nadal to Mr. Perry only a few hours before it was signed. It is apparent, from the testimony of Langherne Desha, the assistant of the Hospital Physician, George Champlin, who slept in the same room, and of others, that Nadal was much troubled at the approach of death, and about his soul’s welfare. Desha testified that during twelve years service as an assistant practitioner, he had seen many persons die, of various races and creeds, but he never saw any one so much frightened at death as Nadal was. It seems to us evident, then that, as death drew near, Nadal, either by the advice of friends, or promptings of his o\vn heart, formed the purpose, natural to a superstitious mind, of providing for his future peace by disposing of his goods, so far as he was then capable of making a disposition, for the procurement of prayers “ for the benefit and rest of his soul.” There is no evidence that he subsequently changed his mind in regard to the destination of his property, or that he Avas aware that the will prepared for him did not conform to his desire. The English language, in which the document is written, Avas to him a foreign language, with which he Avas but imperfectly acquainted. His execution of a Avill in that language is like the execution of á will by a person who is unable to read ; for it is not shoAvn that he could either read or write it. On the contrarjq Mr. Perry, Avho was for eight years his next door neighbor, and his intimate acquaintance, said he had never seen him write anything but his own name, Jose, nor read any language other than the Spanish. We think it Avould be a violent presumption, indeed, to suppose that Nadal was aware of the variance between the paper drawn up for him and his instructions ; for Mr. Perry, who is a much more intelligent man, did not understand the difference till it was pointed out by counsel, and of course he did not direct the decedent’s attention to it.

Can the conscience'of the Court, then, be satisfied, upon the evidence adduced, that this instrument does truly express the last will of Jose Nadal as to the disposition of his property ? Does it disclose his real intention respecting its destination? We think not. There is not a particle of proof that Nadal was upon intimate terms of friendship with Bishop Maigret, or that he ever intended to bestow his property upon him, as an individual, because of any obligations which he felt himself under to the Bishop personally ; but, on the contrary, it seems to us clear as evidence can make it, that, while seeking to quiet his fears by making a will in favor of the Church, and so providing a fund of prayers for his soul’s peace, he has, through mistake, or the misapprehension of other parties, been made to execute such an instrument as he never intended.

The question here involved is not of a nature to he decided by rules of legal construction. There is no controversy as to the meaning and effect of the language actually used, in the document j and there can be no doubt that the meaning and effect of the language which Nadal used, in delivering his instructions to Mr. Perry, are entirely different from that of the language which has been used by those who prepared the instrument. The rules of construction, therefore, are not applicable here— there is no room for their operation. The question raised is one which must'be decided before construction becomes necessary. ■ It is a question of fact, as to whether or not the language used in the paper accords with the language used by the decedent in giving his directions. In our view, the evidence shows, conclusively, that it does not. The objection now discussed may be illustrated by supposing that Nadal had intended to bequeath his property to some charitable institution, such as the “ Queen’s Hospital,” for instance ; but that he had, through mistake, or the misapprehension or disregard of his instructions by others, been made to execute a personal bequest to “A. B.,'President of the Queen’s Hospital Association, Ms heirs and assigns,” thereby diverting the property to private use. Upon the mistake being clearly proven, could- A. B., or his heirs, take the property, directly in the face of the decedent’s intention, and to the exclusion of his daughter, Catalina Nadal ? Certainly not.

February 20, 1861.

This objection is, in our opinion, fatal; for, if the Court should allow this instrument to stand, it would, it seems to us, fail in maintaining those principles of law.which operate as necessary safeguards for protecting the rights of all parties interested in the posthumous disposition of property.

We deem it unnecessary to examine or to- express any opinion upon the questions raised as to the'decedent’s sanity, or the extent of his testamentary capacity, at the time this paper was signed; and as to whether or not a will made according to Nadal’s instructions, would have been a will to “ superstitious uses.”

Probate of the instrument propounded is refused.