Mr. Justice Scott
delivered the opinion of the Court:
There was exhibited in the county court of Knox county an instrument in writing with a codicil attached, purporting to be the last will and testament of James A. Bundy, deceased. From the order admitting the same to probate the heirs of the testator prosecuted an appeal to the circuit court of that county, under that clause of the 4th section of the act in relation to “Wills” which provides that appeals may be taken from the order of a county court allowing or disallowing any will to probate, to the circuit court of the same county, by any person interested in such will, and the trial of such appeal shall be de novo.
On the trial of the appeal in the circuit court proponent proved by the subscribing witnesses the execution of the will and codicil, that they were witnessed with the usual formalities, and the testator, at the time of the execution of both instruments, was of sound mind and memory, and rested her case. The defense sought to be made by contestants was twofold: First, the want of capacity in the testator to make a will, and second, undue influence exercised by proponent over the testator to induce him to make both the will and the codicil.
The case seems to have been submitted to a jury without argument or instructions from the court, who found the “will in controversy was the will of James A. Bundy,” but there was no finding as to the codicil. Upon receiving the verdict the court ordered and adjudged that “said will is duly proven as the will of James A. Bundy, deceased, together with the codicil thereto annexed, and that the same be admitted to probate and record,” and rendered judgment against contestants for costs.
A short history of the case may assist to a clearer understanding of the legal propositions discussed. The testator was twice married. By his first wife he had a number of children, with whom he always maintained the most affectionate relations until after his second marriage. In 1870, the testator, then a widower of the age of sixty-eight years, being in feeble health, undertook a journey to California. On account of the condition of his health, his daughter, Mrs. Gordon, accompanied him to secure for him that care which his physical condition required. His daughter remained with him about a month and then returned to her home. On his way out, the testator made the acquaintance of a lady on the train of whom he had never heard before, and whom he married within a month after his arrival in California. After their marriage the testator and his wife returned to his former residence in this State, where they resided until his death, which occurred July 25, 1875. The health of the testator never materially improved after his second marriage. Much of the time he was confined to his room, was constantly under the care of a physician, and steadily grew worse until his death. He had no children by his last wife.
On the 17th day of April, 1874, he made and published his will, by which he bequeathed to the Methodist Episcopal Church $1000, to be applied to the support of a mission in China; also $500 to the Methodist Episcopal Church in Galesburg; also to Carrie Gordon, an adopted daughter of his son-in-law, the sum of $1000; also to his grandson James Grant Bundy, $1000; also to each child of his daughter Martha, $5; also to his grandson Albert West, $5; also to his daughter Angeline Gordon, $5; also to his son, Milton Bundy, $5; and all the residue of his estate, real and personal, he devised and bequeathed to his wife, Mary A. Bundy, since intermarried with Mr. Adams, and it is in the latter name she now defends. The proponent was herself named as sole executrix of the will, and relieved of the statutory duty of giving bond as such executrix. This will was witnessed by Leander Douglass and William W. Porter.
On the third day of April, 1875, the testator made and published a codicil to his will, by which he revoked the following bequests therein made: first, the bequests to the Methodist Episcopal Church; second, the bequest to Carrie Gordon, and third, the bequest to James Grant Bundy, and republished the will as changed. The codicil was witnessed by Leander Douglass and John W. Boyd, with the usual formalities.
By the provisions of his will all the children of the testator were cut off from any participation in his estate with five dollars each, while the major portion of his property, which was quite considerable, was given to his wife, whom he had recently married, in his old, age after a brief acquaintance. It will be noticed the bequests in the will, above mere nominal sums, were all revoked by the codicil, so that proponent became the sole legatee of the entire estate to the absolute exclusion of all his children and grand-children. Prior to the second marriage of the testator he had always lived on the best of terms with his children, but after that event, both before and after the making of his will, he entertained the bitterest hatred to most if not all of them. It does not appear that the testator ever recovered his health after his journey to California. His head was much affected. One of the physicians who attended the testator describes his mental and physical condition a short time before the making of the will. He saw him in July, 1873, and says “he was then in very poor health, very feeble,—he was not himself; his condition was such as to render him more susceptible of being influenced by those around him; he was constantly racked with pain; he was dependent as a child.”
On being recalled, he says the testator “ was then under the control and influence of his wife as much as an infant two hours old ever was under the control of a nurse and mother,— as helpless and dependent upon her for everything—a drink of water or any little attention that he needed; he was perfectly under her control; he could not help himself.” It is certain the testator did not have that vigor of will which he possessed prior to his sickness, but whether his wife obtained that control over him attributed to her, and whether she exercised it for improper purposes, are of course questions of fact to be found from the testimony.
On both grounds on which the will was contested there was evidence offered. As to the mental capacity of the testator, the testimony of both professional and non-professional witnesses was taken, but as another hearing of the cause is to be had on account of the rulings of the court in rejecting proper testimony, a majority of the court are of opinion it is not proper at this time to remark upon what it may be thought to prove or tend to prove. On the question made, as to the undue influence it is alleged the party proponent exercised over the testator to induce the making of the will and codicil, and for which purpose alone it seems to have been offered, the evidence consists largely of the acts of the parties and the declarations of the testator made both before and after making the will. Much of the latter class of testimony was excluded from the consideration of the jury after it was given.
On motion of proponent the court ruled out from the consideration of the jury all the testimony of the witnesses Hocket, in relation to matters occurring in the family of the testator between July and October, 1873.
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Mr. Justice Scott
delivered the opinion of the Court:
There was exhibited in the county court of Knox county an instrument in writing with a codicil attached, purporting to be the last will and testament of James A. Bundy, deceased. From the order admitting the same to probate the heirs of the testator prosecuted an appeal to the circuit court of that county, under that clause of the 4th section of the act in relation to “Wills” which provides that appeals may be taken from the order of a county court allowing or disallowing any will to probate, to the circuit court of the same county, by any person interested in such will, and the trial of such appeal shall be de novo.
On the trial of the appeal in the circuit court proponent proved by the subscribing witnesses the execution of the will and codicil, that they were witnessed with the usual formalities, and the testator, at the time of the execution of both instruments, was of sound mind and memory, and rested her case. The defense sought to be made by contestants was twofold: First, the want of capacity in the testator to make a will, and second, undue influence exercised by proponent over the testator to induce him to make both the will and the codicil.
The case seems to have been submitted to a jury without argument or instructions from the court, who found the “will in controversy was the will of James A. Bundy,” but there was no finding as to the codicil. Upon receiving the verdict the court ordered and adjudged that “said will is duly proven as the will of James A. Bundy, deceased, together with the codicil thereto annexed, and that the same be admitted to probate and record,” and rendered judgment against contestants for costs.
A short history of the case may assist to a clearer understanding of the legal propositions discussed. The testator was twice married. By his first wife he had a number of children, with whom he always maintained the most affectionate relations until after his second marriage. In 1870, the testator, then a widower of the age of sixty-eight years, being in feeble health, undertook a journey to California. On account of the condition of his health, his daughter, Mrs. Gordon, accompanied him to secure for him that care which his physical condition required. His daughter remained with him about a month and then returned to her home. On his way out, the testator made the acquaintance of a lady on the train of whom he had never heard before, and whom he married within a month after his arrival in California. After their marriage the testator and his wife returned to his former residence in this State, where they resided until his death, which occurred July 25, 1875. The health of the testator never materially improved after his second marriage. Much of the time he was confined to his room, was constantly under the care of a physician, and steadily grew worse until his death. He had no children by his last wife.
On the 17th day of April, 1874, he made and published his will, by which he bequeathed to the Methodist Episcopal Church $1000, to be applied to the support of a mission in China; also $500 to the Methodist Episcopal Church in Galesburg; also to Carrie Gordon, an adopted daughter of his son-in-law, the sum of $1000; also to his grandson James Grant Bundy, $1000; also to each child of his daughter Martha, $5; also to his grandson Albert West, $5; also to his daughter Angeline Gordon, $5; also to his son, Milton Bundy, $5; and all the residue of his estate, real and personal, he devised and bequeathed to his wife, Mary A. Bundy, since intermarried with Mr. Adams, and it is in the latter name she now defends. The proponent was herself named as sole executrix of the will, and relieved of the statutory duty of giving bond as such executrix. This will was witnessed by Leander Douglass and William W. Porter.
On the third day of April, 1875, the testator made and published a codicil to his will, by which he revoked the following bequests therein made: first, the bequests to the Methodist Episcopal Church; second, the bequest to Carrie Gordon, and third, the bequest to James Grant Bundy, and republished the will as changed. The codicil was witnessed by Leander Douglass and John W. Boyd, with the usual formalities.
By the provisions of his will all the children of the testator were cut off from any participation in his estate with five dollars each, while the major portion of his property, which was quite considerable, was given to his wife, whom he had recently married, in his old, age after a brief acquaintance. It will be noticed the bequests in the will, above mere nominal sums, were all revoked by the codicil, so that proponent became the sole legatee of the entire estate to the absolute exclusion of all his children and grand-children. Prior to the second marriage of the testator he had always lived on the best of terms with his children, but after that event, both before and after the making of his will, he entertained the bitterest hatred to most if not all of them. It does not appear that the testator ever recovered his health after his journey to California. His head was much affected. One of the physicians who attended the testator describes his mental and physical condition a short time before the making of the will. He saw him in July, 1873, and says “he was then in very poor health, very feeble,—he was not himself; his condition was such as to render him more susceptible of being influenced by those around him; he was constantly racked with pain; he was dependent as a child.”
On being recalled, he says the testator “ was then under the control and influence of his wife as much as an infant two hours old ever was under the control of a nurse and mother,— as helpless and dependent upon her for everything—a drink of water or any little attention that he needed; he was perfectly under her control; he could not help himself.” It is certain the testator did not have that vigor of will which he possessed prior to his sickness, but whether his wife obtained that control over him attributed to her, and whether she exercised it for improper purposes, are of course questions of fact to be found from the testimony.
On both grounds on which the will was contested there was evidence offered. As to the mental capacity of the testator, the testimony of both professional and non-professional witnesses was taken, but as another hearing of the cause is to be had on account of the rulings of the court in rejecting proper testimony, a majority of the court are of opinion it is not proper at this time to remark upon what it may be thought to prove or tend to prove. On the question made, as to the undue influence it is alleged the party proponent exercised over the testator to induce the making of the will and codicil, and for which purpose alone it seems to have been offered, the evidence consists largely of the acts of the parties and the declarations of the testator made both before and after making the will. Much of the latter class of testimony was excluded from the consideration of the jury after it was given.
On motion of proponent the court ruled out from the consideration of the jury all the testimony of the witnesses Hocket, in relation to matters occurring in the family of the testator between July and October, 1873. The testimony excluded, in some respects was all important, as it afforded an insight, not otherwise obtained, into the private history of the family, and furnished a clearer understanding of the relations of proponent and the testator at any time near the date of the will, than any other evidence in the record. It tends to show what means contestants insist were employed by proponent to alienate the affections of her husband from his children by a former wife, and to obtain the control of his property. According to the testimony of one of the witnesses, if it can be believed, she compelled him to forbid his children visiting his house, and at one time when his son-in-law and his daughter called, she became very angry, and carried on so because he would allow them to visit him, that he told her if she would say no more about it for a certain length of time—two weeks—he would give her f1000, but the witness adds “ she did not stop.”
The testimony excluded further tends to show she constantly importuned him to deed his property to her, and he would try to quiet her by assuring her he would make provision for her in his will, which the sequel shows he did. One reason, it is said, she constantly urged why the property should be deeded to her, was, that she might hold it “in case the will was broken.” Many other facts of the same nature, tending to show the relations that existed between the parties, were disclosed, but those stated are sufficient to show the character and importance of the testimony excluded, if it was true, and for the purposes of this decision it must be regarded as true and as proving all it tends to prove.
The reason assigned by the court for excluding this testimony is, that “it was too remote the time of the execution of the will.” But the decision can hardly be supported for that reason, as the contestants offered to prove declarations of the testator near the time, both before and after the execution of the will, to show that the same state of affairs must have still continued to exist, but were denied the privilege. The argument now advanced in support of the decision of the court is, that the declarations of the testator, neither before nor after the execution of the will, are admissible in evidence to defeat the will. As authority for the position assumed, the case of Dickie v. Carter, 42 Ill. 376, is cited. That case simply expresses the well understood doctrine that a testator can not revoke or otherwise invalidate his will by parol declarations made previously or subsequently to its execution. That principle is nowhere questioned. A will once executed with the usual formalities prescribed by the statute, and valid, can only be set aside by a revocation, in writing, of the same grade, witnessed with the same formalities, or by destruction, as by burning or tearing it up, when deliberately done. 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. That is the principle on which the jury ought to have been permitted to consider the testimony excluded by the decision of the court. It tended to show his mental condition, the annoyances he was subjected to by the continual importunities of his wife, his susceptibility to the influence of those in whose care he was, and his helplessness in their hands, from want of mental vigor induced by long sickness, to resist any influences that might be brought to bear on him. On reference it will be seen this is the doctrine of the cases cited in Dickie v. Carter, in support of the views expressed, so far as they discuss this subject.
In the later case of Waterman v. Whitney, 1 Kernan, 157, the court remark upon the case Jackson v. Kniffer, 2 Johns. 31, one of the cases cited in Dickie v. Carter, and treat it as not inconsistent with the principle that declarations of a testator, made either before or after the execution of the will, are admissible in evidence to show the mental capacity of the testator, and this case was decided long before the decision in Dickie v. Carter was announced. In citing Jackson v. Kniffer, in Dickie v. Carter, it must be presumed this court understood the case as it was understood by the court that pronounced it.
In Waterman v. Whitney, Mr. Justice Selden very justly remarked, that “ much of the difficulty, however, 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.” He then proceeds to discuss the rules by which the admissibility of evidence in such cases is goverened, as they naturally arrange themselves in the following classification: 1st, to show a revocation of a will admitted to have been once valid. 2d, to impeach the validity of a will for duress, or on account of some fraud or imposition practiced upon the testator or for some other cause not involving his mental condition, and 3d, to show the mental capacity of the testator, or that the will was procured by undue influence.
After a careful review of the authorities, the conclusion was reached, that the numerous cases in which the declarations of testators have been held inadmissible upon contests respecting the validity of their wills, apply to one or the other of the first two of the three classes into which the subject was divided, and that none of them have any application to cases in which the will 'is assailed on account of the insanity or mental capacity of the testator at the time the will was executed, or on the ground the will was procured by undue influence. Such prior and subsequent declarations of-testators in such cases are held to be competent evidence only as to the mental capacity of the testator.
Another case cited in Dickie v. Carter is Comstock v. Hadlyne, 8 Conn. 254, erroneously cited as being in 8 Cowen, 263, where it was declared the declarations of a testator, in a contest involving the validity of his will, are admissible to show the testator’s state of mind, but not to prove the facts stated. The distinction between the proofs of alleged facts and of the mental condition of the testator whose will is assailed on account of mental infirmities, is not discussed in Stevens v. Vanclear, 4 Wash. C. C. R. 262, another case cited in Dickie v. Carter.
In Shailer v. Bumstead, 99 Mass. 112, it was said by the court, in discussing this subject: “As before stated, the previous conduct and declarations are admissible, and so, by the weight of authority and upon principle, are subsequent declarations when they denote the mental fact to be proved.”
In McTaggart v. Thompson, 14 Pa. St. R. 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. Many other cases to the same effect might be cited, but it is believed these are sufficient to show that the principle we are endeavoring to' maintain has the support of well considered cases in other courts of the highest authority.
But aside from all authority, on principle, declarations of a testator, in a contest involving the validity of his will, as respects his mental condition at the time of its execution, are and ought to be admissible. Often such declarations may be most satisfactory evidence, and afford a clearer understanding of the testamentary capacity of the testator than any other evidence that could be produced. Naturally, the mind sympathizes with the body in that which debilitates, and such testimony may show a mind weary beyond further endurance by long continued ill-health and incessant and vexatious importunities, and willing to purchase rest and quiet at any price. More than that, it may be proof of that condition of mind readily susceptible of impressions from any source. Nothing is more certain than that the enfeebled and weary mind is, in that condition, most susceptible to any influence calculated to annoy and harrass. It is a proposition that needs no argument in its support, that the feebler the mind, no matter from what cause—from sickness or otherwise—the less evidence will be required to invalidate the will of such a person on the ground of undue influence.
Whether the testimony excluded was true or untrue we express no opinion. It was error to exclude it, and for that reason the order admitting the will and codicil to probate will be reversed, and the cause remanded.
Judgment reversed.