Kelly v. Moore

22 App. D.C. 9, 1903 U.S. App. LEXIS 5510

Opinion

Mr Justice Morris

delivered the opinion of the Court:

1. Twenty-two exceptions were noted by the plaintiffs to the rulings of the trial court, some of them reserved to the action of the court in the admission and exclusion of testimony, and some addressed to the action of the court in respect of the instructions granted or refused; and upon these twenty-two exceptions they base twenty-three assignments of error. Most of these we deem it unnecessary to consider in detail or at any length. We think that there is only one substantial question in the case for our consideration, and that is the question of the sufficiency in law of the attestation of the will of William Thomson as a conveyance of real estate in this District.

. In the year 1886 when this will was executed and thereafter until the adoption of the present code, which went into effect from and after January 1, 1902, at least three witnesses were required for the attestation of a will in order to render it effectual as a conveyance of real estate. The attestation here consists of that of two witnesses, which is conceded to be regular and sufficient, and of a certificate signed by a third person, the efficacy of which is controverted. The determination, therefore, of the question and of the controversy in this case depends upon the view to be taken of this certificate as an act of attestation. We think that the question is solved for us by the doctrine stated by the Supreme Court of the United States in the case of Adams v. Norris, 23 How. 353, That case, it is true, arose in California under the Mexican or Mexican-Spanish adaptation of the Homan civil law then • in force in that part of our Union, but the rule laid down by the court is of general application.

In the ease of Adams v. Norris there appeared a will, which immediately after the signature of the testator had the following words:

“ Before me, in the absence of the two alcaldes.— Boberts T. Bidley, Sindico. Witnesses: Nathan Spear, Guillermo Hinckley.”

There was question whether, under the law and usage of the country, a will, in order to be effective, required three or only two witnesses. It was treated in both aspects, both by the trial court and by the Supreme Court of the United States. With reference to the possible requirement of three witnesses the latter tribunal said:

“We comprise among the witnesses to the will Bidley, the sindico. It does not appear that a sindico was charged with any function in the preparation or execution of testaments by the law or custom of California. Nor is it clear that the sindico in the present instance expected to give any sanction to the instrument by his official character. He attests the execution of the will, and we cannot- perceive why the description of himself, which he affixes to his signature, should detract from the efficacy of that attestation.”

The action of Sir William Grant, master of the rolls, in the case of Clarke v. Turton, 11 Vesey, Jr., 240, which is cited by the plaintiffs in support of their contention, but-which in our opinion does not sustain it, is entirely consistent with the ruling of the Supreme Court in the case of Adams v. Norris, and is indicative of the distinction that should be taken in all such cases. The case of Clarke v. Turton was a suit in equity to establish a will, to which one of the signatures of the three witnesses who were claimed to have attested it was, as in the present case, that of a vice-consul resident in some foreign country where the will appears to have been executed. There was objection to the establishment of the will on several grounds. One of these, as stated in the exceedingly brief report which we have of the case, is thus stated:

“Another objection was taken to the execution of the will — that the third signature was that of the vice-consul, the will being executed abroad, and tbe attestation of some such public officer is considered necessary to the validity of the act;— that the attestation in this instance was a memorandum by the vice-consul to operate as a certificate, a separate act in his official character, and sealed with his official seal; and therefore it could not be said he subscribed as a witness.”

It is stated that the master of the rolls sent the case to be tried at common law upon this objection; but we are not advised by the report what the result was, or what ultimate disposition was made of the case. Nor did the master of the rolls himself express any opinion as to the merits of the objection. But the distinction pointed out is, that when the certificate of an official person as such is attached to a will, and such official certificate is required by the law, it is not to be regarded as of itself an act of attestation. But neither by our law nor by the law of England is a vice-consul charged with any function in regard to the execution of wills. He is, it is true, charged with the authority to take acknowledgments of deeds; and it may have been that in this case he was called upon to certify to the will through some mistaken idea that his functions also comprised the taking of acknowledgments of wills. But his official act can add nothing to the efficacy of a will; nor does the absence of an official certificate detract in any' manner from its validity. The certificate here in question is utterly meaningless and utterly without force or significance of any kind, unless it be taken as an act of attestation. And yet that it was intended by the parties to it'that it should have some force and effect is beyond all doubt.

It is the well-established rule of law that all legal documents and instruments of writing, deeds, wills, bonds, and all others, must, if possible, be so construed as that they shall be given due effect, and not receive a construction which would render them meaningless. Foxcraft v. Mallett, 4 How. 353; Smith v. Bell, 6 Pet. 68; 17 Amer. and English Encyclopsedia of Law, 2d edition, p. 18, and cases there cited. The certificate of John H. Cooksey in the present case is valueless for any other purpose than as an act of attestation. If it is to receive any efficacy whatever, it must be as an act of attestation. And we see no reason on the face of it why it should not receive that construction. In express terms, as fai as it goes, it purports to be an act of attestation, and nothing else. It purports to recite that the testator, William Thomson, attended before the subscriber on a certain specified day, and acknowledged the document, to which the then unexecuted certificate was affixed, to be his last will and testament, and the signature thereto to be in his handwriting. These are elements of an act of attestation. The certificate is plainly the equivalent of a statement that the testator in the presence of the subscriber declared that the instrument was his last will and testament. The only element of an attestation wanting is that it is not stated to have been signed by the subscriber as a witness at the request of the testator. But if no formal words of attestation are required at all, as they are not under our law, certainly an imperfect certificate of attestation cannot vitiate the whole transaction. Bather will the omission be supplied by reasonable presumption; and it may well be presumed here that Thomson came to Cooksey to get him to sign what he actually did sign.

It is the well-settled law that when any of the witnesses to a will has died, proof of his signature is sufficient prima facie proof of attestation of the 'will by him. Robertson v. Pickrell, 109 U. S. 608; McCormick v. Sullivant, 10 Wheat. 192; Darby v. Mayer, 10 Wheat. 465. Otherwise there could in most cases be no probate of wills where one or more of the witnesses had died; and especially would such probate be difficult or impossible where all the witnesses had departed this life. In the present instance Cooksey appended his signature apart from the other witnesses, and with’ or without the certificate it would have been impossible to prove his attestation of the will otherwise than by proof of his signature and the presumptions which naturally arise therefrom. Now, if such proof and presumptions would supply all the elements of an attestation, it is difficult to see why they would not supply the defects of an imperfect clause of attestation. Nor, in view of the case of Adams v. Norris, heretofore cited, is it apparent how the addition to his signature of an unnecessary designation, such as that of vice-consul was in this case, could have detracted from the legal efficacy of his act any more than a statement of his place of residence.

It is to be noted that it was left to the jury in this case to consider all the circumstances and to find what was the fact. It was left open to them to disregard the presumptions if they found any facts in the case to rebut them. This was more favorable to the plaintiffs than they were entitled to have it in view of the condition of the testimony; but they at least had no reason to complain of the submission of the matter to the jury. The jury found the presumptions and the facts against them, and we think that they found rightly.

We conclude, therefore, that the will of William Thomson, with the certificate appended thereto of John H. Cooksey, was sufficiently executed for the conveyance of real estate in this District, and that both the will and the certificate were properly admitted in evidence in this case.

2. As we have intimated, it would subserve no good purpose, and we do not deem it necessary to enter into any elaborate consideration of the other assignments of error or of the exceptions upon which they are founded. They raise uo questions of law that have not been fully settled by the authorities.

For example, to the general interrogatory appended at the conclusion of the commission sent to take the testimony of Septimius Cooksey, son of John H. Cooksey, in England, and which is the usual interrogatory in all such cases, whether the witness could state anything else pertinent to the issues between the parties, the witness, whose previous testimony had been addressed exclusively to the proof of his father’s signature to the certificate annexed to the will, here said that he recollected the occasion when William Thomson came to see his father about his will, and that at that time, as far as the witness could judge, Thomson was perfectly sane and in good health. Exception was taken to the admission of this interrogatory and answer; bnt plainly the question was proper and the answer was relevant to the. issue. The plaintiffs do not claim to have been surprised by either, but only to have had no opportunity for cross-examination. But no doubt the opportunity would have been afforded if application therefor had been duly made.

Similar interrogatories were propounded to the register of the probate court in London, who had the official custody ■of the will of William Thomson among other wills, and he was requested to state whether it was on file in his office, whether it had been admitted to probate, whether the Cooksey certificate appeared on it, what the contents were of this certificate, and whether a certified copy of the will which was attached to the interrogatories was a correct copy of it. To the allowance of each and all of the questions and of the answers of the witness to them exception was reserved by the plaintiffs, and these exceptions have been brought here by assignments of error thereon. But it is well settled that this is a proper mode for the proof of documents and their contents when the documents themselves are beyond the jurisdiction of the court.

In the testimony of the plaintiffs in rebuttal it was sought to introduce testimony plainly of a hearsay character, including the certificates of the physicians for the commitment, cf William Thomson to the insane asylum; but insanity is not to be proved in this way, and these certificates were clearly inadmissible, especially in view of the fact that it does not appear why the testimony of the physicians themselves might not have been taken. So also declarations made to some of the witnesses by third parties were also excluded. And this, of course, was evidently proper. Neither in the matter of the exclusion or admission of testimony, nor in the matter of the instructions which were given or rejected, or given with a modification, do we find any reversible error. The rulings of the court were eminently right and just throughout the whole trial.

3. Of one exception, perhaps, special consideration is demanded. It is an exception to which usually no consideration whatever can be given in an appellate tribunal,— that which was taken to the refusal of the trial court to grant a new trial in the case.

Besides the usual formal reasons, the motion for a new trial here was founded upon serious charges of misconduct on the part of one or more of the jurors during the trial and principally in the consultation room after they had retired to deliberate on their verdict. The principal charge was that one of the members of the jury was during all this time under the influence of intoxicating liquor and thereby incapacitated from rational deliberation; and this charge developed counter charges of subornation of perjury on the part of persons other than members of the jury. ■ Numerous affidavits were filed in connection with the matter; and the court authorized and permitted an oral examination of several of the jurors and of some other persons more or less connected with the case. To the proceedings in connection with the motion an unusually large portion of the record before us is devoted. They occupy 56 out of 129 printed pages, or nearly one-half of the whole record. The result of the investigation, in the language of the bill of exceptions, was that “ the court held that, while there appeared to be a conflict of evidence as to irregularity in the jury room, still there was not sufficient to warrant him to disturb the verdict, as there was no evidence of any misconduct on the part of one or more of the jurymen that would warrant a setting aside of the verdict, and that it also appeared that such misconduct or impropriety did not enter into or affect the verdict, and that the verdict appeared to be sustained by the evidence.”

To this ruling the plaintiffs excepted, and the exception is now urged upon our consideration.

In view of the gravity of the charges advanced, and in view of the fact that such misconduct as has been here asserted tends to pollute and poison the fountains of justice, which should be rigidly guarded from such contamination, we have carefully considered the proceedings as detailed in the record, but we find no reason to dissent from the ruling of the learned justice who presided at the trial. The alleged misconduct after all is a contested question of fact. The justice of the trial court, after apparently careful, painstaking, and conscientious investigation, has found the charge not proved, and it is not apparent that in such a case an appellate tribunal should interfere with the finding.

It seems to be established by the decisions of the Supreme Court of the United States and other tribunals that, while ■ordinarily the allowance or refusal of a new trial rests in the sound discretion of the court to which the application is addressed — that is, the trial court — and the result cannot be made the subject of review by writ of error (Newcomb v. Wood, 97 U. S. 581; Henderson v. Moore, 5 Cranch, 11), yet there are or may be exceptions to the rule, and among these exceptions are some cases of misconduct on the part of the jury and others connected with the jury which the trial court has refused to consider or has erroneously considered upon an uncontested state of facts. Clyde Mattox v. United States, 146 U. S. 140; United States v. Reid, 12 How. 361; Perry v. Bailey, 12 Kans. 415; Woodward v. Leavitt, 107 Mass. 453.

In the case of Mattox v. United States, the Supreme Court •of the United States by Mr. Chief Justice Fuller, after stating the general rule, said:

“ But in the case at bar the the District court excluded the affidavits, and in passing upon the motion did not exercise any discretion in respect of the matters stated therein. Due •exception was taken and the question of admissibility thereby preserved. * * * We should, therefore, be compelled to reverse the judgment because the affidavits were not received and considered by the court.”

In the case of Perry v. Bailey, 12 Kans. 415, in which the judgment and opinion of the Supreme Court of Kansas were delivered by Mr. Chief Justice Brewer, now one of the justices of the Supreme Court of the United States, and which is cited with approval by the latter court in the case of Mattox v. United States, it was proved and practically conceded in the tidal court, for there was no countervailing testimony, that one of the jurors was under the influence of liquor in the jury room and thereby incapacitated from participating intelligently in the deliberations of his associates, on the jury, and yet the trial court refused to set aside the verdict. This was assigned as error, and the Supreme Court of Kansas on this ground reversed the judgment and directed a new trial. And it was held that such action was necessary in order to preserve the administration of justice from the fatal taint of corruption at a most vital point.

The present case is easily distinguishable from those which have just been cited. Here not only were all the affidavits that were offered received and considered, but a lengthy and searching oral investigation was had before the court of the alleged acts of misconduct on the part of members of the jury. The trial court, therefore, differently from the case of Mattox v. United States, gave full and conscientious consideration to the alleged acts of misconduct and found that they were not sustained by the testimony. So, also, is there a sharp distinction between this case and that of Perry v. Bailey. For, although the principal alleged act of misconduct here on the part of a member of the jury was identical with that in the case of Perry v. Bailey, that is, gross intoxication, yet there the fact of intoxication was proved and admitted and the court refused to taie proper action on it,, while here the charge after full investigation has not been sustained. If the testimony failed to sustain the charge — and of that the trial court was the best judge — it is difficult to see how that court could properly have done otherwise than deny the motion for a new trial, so far as the matter of misconduct of the jury was concerned.

We are of opinion that there was no reversible error in the rulings of the trial court in this case, and therefore that the judgment appealed from should be affirmed, with costs. And it is so ordered.

A writ of error to the Supreme Court of the Hnited States was prayed by the appellants and allowed May 12, 1903.