Roberts v. Trawick

13 Ala. 68

• Court: Supreme Court of Alabama
• Decided: January 15, 1848
• Status: Published

Opinion

CHILTON, J.~

This was a proceeding tinder the 9th section of the act of 1821, in the orphans’ court, to try the validity of the will of Nathaniel Davis, late of Tuscaloosa county, deceased. The act under which it was instituted, provides, “ when the validity of any will shall be contested, or doubts shall arise as to its validity, or as to any fact, which, in the opinion of the judge, it may be necessary to have ascertained by a jury, before awarding any order, judgment or decree, such judge, at any stated session, or on any sitting held in vacation, according to the provisions of this act, may forthwith cause a jury to be summoned and impanneled, to try such issues, or inquire of such facts, as under his direction shall be submitted to their decision, and shall cause them to be sworn in such form, as the case may require. Clay’s Dig. 304, § 35. By the first section of the act of 1823, a mode is pointed out for selecting the jury. As no formal pleading was had in the orphans’ court, setting forth the particular grounds upon which said will was contested, we must regard the case as presenting every issue, which, if found for contestants, would render the will invalid, and which the proof conduces to establish. The counsel for the contestants in this court, insist, that although the deceased had sufficient mind to make a will, (and which the bill of exceptions shows, was admitted in argument on the trial in the orphans’ court,) yet the proof offered and received was legitimate as conducing to show, that the deceased, laboring under the physical and mental imbecility which were the result' of his extreme old age, was an easy prey to the artifices of a second wife, by whom he had no children, and that he was induced by her importunity, and the exercise of an undue influence over him, to make a will, excluding from its provisions, the most unfortunate members of his family, and greatly beneficial to her; and to show that the will made an unsuitable and unnatural disposition of his property, and contravened his previously expressed determination.

Without considering each exception to the testimony separately, we propose to deduce the general rules of evidence as applicable to them ; that by refusing the exceptions to the will, we may with less propriety ascertain what testimony the court should have received, and what rejected.

1. What acts and declarations of an executor may be received in evidence to impeach or sustain the will, in a controversy to which he is a party ? The rule contended for by the counsel for the plaintiff, that the declarations of the executor, who is the mere nominal plaintiff, may be given in evidence, although sanctioned by some of the authorities referred to, has been repudiated in this State. In the case of Head, &c. v. Shearer, et al. 9 Ala. Rep. 791, in which this court review its former decisions on this point, it is held “ that an admission of a nominal plaintiff, after he has parted with his interest in the note, cannot be given in evidence to defeat the beneficial plaintiff. Copeland and Lane v. Clarke, 2 Ala. Rep. 388; Chisolm v. Newton & Wyley, 1 Ala. Rep. 371; Brown v. Foster, 4 Ib. 282.

The same doctrine received au examination by this court in the case cf Graham v. Lockhart, 8 Ala. Rep. 26. In that case, it was attempted to give in evidence the declarations of a trustee in a trust deed to impeach the deed; the circuit court rejected the evidence, and this court affirmed the judgment. The contrary rule, recognized by the English courts, that the admissions of the plaintiff on the record are always evidence, although he be but a trustee for another, has, by the uniform decisions of this court, been departed from. It is held both in England and in this country, that he cannot release the action. Payne v. Rogers, 1 Doug. 407; 1 Salk. 260; Isaacs v. Boyd, 5 Por. Rep. 388; Roden v. Murphy, 10 Ala. R. 804. It would seem absurd to say the trustee could by his admissions destroy a right of action which he could not release, and thus effect by indirection what he could not directly accomplish. The executor, having no interest under the will, is but the agent to execute, not to defeat, its provisions, and to allow his admissions to prejudice the rights of the legatees, would not only be unjust, but disastrous in its consequences. It follows that the orphans’ court committed an error in allowing the declarations of Roberts, the executor, to be given in evidence against his objection. Horn v. Whittier, 6. N. Hamp. Rep. 88; 5 Ib. 268.

We might here close this opinion, but as the case will be sent back for another trial, it becomes important for us to declare the law as applicable to the other points raised in the record, as a guide for the orphans’ court in its future action in the cause.

2. The next question presented for our consideration by the bill of exceptions is, whether the orphans’ court properly allowed the declarations of Mrs. Davis, the widow of the supposed testator, and principal devisee in the will, to go to the jury. It is insisted by the counsel for the defendants in error, that her declarations are evidence, because, though she is not a party of record to the suit, yet she is a party really in interest. Upon a careful examination of the authorities referred to by the counsel, we do not think they sustain this position. In Phelps, et al. v. Hartwell, et al. 1 Mass. R. 71, it was proposed to prove that one of the principal devisees, and who was also executor, had expressed his opinion, that the testator, at the time of making his will, was not of sound mind. Dana, C. J., and Strong and Thacher, Justices, were against admitting the evidence offered. The majority of the court seem, however, to lay some stress upon the fact, that the declaration offered amounted only to an opinion, and that the facts upon which it was based, were not declared.

In Miller, et al. v. Miller, 3 Serg. & R. 267, the defendants offered evidence to prove, that one of the plaintiffs in the issue, and who was a devisee under the will, had, after its execution, “ by various discourses, intimated, that he had procured the will to be made, that the same was read to him, and that he had given the reasons why his brothers and sisters had gotten so small a portion.” This evidence was rejected by the register’s court, and the question was presented upon the appeal, whether the declarations of one devisee were evidence against the other devisees. The court declined deciding this question, and sustain the rejection of the proof upon the ground that it was vague, indefinite, and immaterial. The same question arose in Bovard and wife v. Wallace, et al. 4 Sergt. & R. 499. The defendants offered to prove, that one of the devisees had declared, that the testator, at the time of making his will, was incapable of making a valid disposition of his property. The court rejected the proof upon the authority of Miller v. Miller. The question however is again presented to the same court, Nussear v. Arnold, 13 Sergt. & R. 323. In this case one Margaret King was the principal devisee in the will, which gave her the whole estate (except a few legacies to a small amount) for life ; after death one half was to go to her relatives, and the other half to the relatives of the testator. The defendants offered to prove her declarations, “that the testator, at the time of making his will, was incapable of transacting51 business.” The court (Tilghman, C. J.) say, “it is a case, sui generis, where the rights of several persons are tried together, and where, so far as concerns personal estate, the law admits of no other mode of trial. Under these circumstances, it is unsafe and unjust to admit the rights of one to be affected by the declarations of another, and therefore the evidence ought not to have been admitted.”

In Maryland, it is held, that declarations adverse to a will, made by an executor, who was defendant upon the record, and a contingent devisee respecting every interest under the will, are competent evidence to go to the jury. See Davis v. Calvert, 5 Gill & Johns. 270. This decision is founded on the rule, so generally recognized by the English courts, that Mr. Justice Lawrence, (in Bauerman v. Radenius, 7 T. 663,) says he could find no case opposed to it, “ that the admissions of a party on record are always evidence, though he be but a trustee for another” — a doctrine which this court has, for substantial reasons, heretofore repudiated. See Graham v. Lockhart, 8 Ala. R. 9.

I have looked into our reports, and have been unable to find any decision directly upon the point here presented. We have then to make a precedent which will hereafter govern us in our adjudication of similar cases; and in view of the authorities which we have been enabled to examine, and the reasoning upon which they are predicated, we feel safe in declaring the correct rule to be, that when a will is propounded to the orphans’ court for probate, and is there contested,' the admissions, or declarations, by one of several legatees of the unsoundness of the testator’s mind, or that fraud, imposition, or undue influence was practised upon, or exercised over him, shall not be received to invalidate the will to the prejudice of the other legatees. Dan v. Brown, 4 Cow. Rep. 483.

3. We cannot perceive upon what principle the witness, Whitson, was permitted to give evidence of a will executed by the testator some twelve years anterior to the one in controversy, by which it is said the testator made an equal division of his property among his children. Neither party to this controversy claimed the old will as valid; and if it be granted, as it was admitted in the argument, that the testator, at the time of the execution of the last will, was possessed of sufficient mind to make a valid disposition of his property, all former wills are expressly revoked by the execution of this, If a will be made in conformity to a fixed determination entertained and expressed for years, this, it is held, is strong proof of capacity. Conch, et al. v. Couch, 7 Ala. R. 519. But as every sane man has a right to change his opinion, and to disregard the claims of his children, however needy or meritorious, and to will his property even to a stranger, we do not consider the insulated fact of his having twelve years previously made a different disposition of his property, as at all affecting the validity of his last will. See Stephens and wife v. Vancleve, 4 Wash. C. C. Rep. 262. We think the proof was irrelevant, and calculated to mislead the jury, and should therefore have been excluded. But if it were permissible to read the old will in evidence, parol proof of its contents, predicated upon the admissions of one of the legatees of its loss or destruction, is not allowable. Brown v. Betts, 9 Cow. R. 208; 18 Pick. 379; 1 Ala. Rep. 602.

4. As to adniitting the declarations of the testator to defeat his will, we find some conflict of authority. But we think the true rule laid down in the case of Smith v. Fenner, 1 Gal. R. 170, where it is held, that the declarations of the testator, made before and at the time of the execution of the will, or so shortly thereafter as to form a part of the res gestae, and necessarily connected with it,' may be received to prove fraud or undue influence in its execution. See Stephens and wife v. Vancleve, 4 Wash. C. C. Rep. 263; Jackson v. Kniffin, 2 Johns. R. 31; 1 Ves. 440; 2 P. Wms. 136; Rambler v. Tryon, 7 Sergt. & R. 90.

5. The court erred also in refusing to hear proof as to the interest of the witness, Griffin. The interest of a witness, most usually ascertained upon an examination of the witness himself, upon his voire dire, may be shown, or a presumptive interest disproved by proof aliunde. If, in the present ease, the witness, Willingham, would receive a greater share of the estate by defeating the will, than he would under it, he is clearly an interested witness — his interest would preponderate in favor of the. person offering him, and his proof would be rejected. We do not decide whether the witness was or was not interested, as the facts are not before us — we can only assert the proposition of law, that it was the duty of the court to haye heard the proof as to his interest which was offered and rejected. The ground of its rejection was, that the proof could not be allowed, “ unless the party could also show the amount of debt against the estate, or by some other means, show what would be the amount for distribution after settling up the estate.” The proof offered was pertinent to the question of interest, and as the court could not judicially have known that the estate owed debts which were unpaid, the failure to prove a negative, that it did not owe, was not a legitimate ground for its exclusion. Harrel v. Floyd and wife, 3 Ala. R. 16.

6. The proof of the refusal of one of the executors named in the will to take upon him its execution, is wholly foreign from the issues before the jury, and was clearly irrelevant. What influence such proof could have, we cannot easily conceive, but as it was insisted on, and allowed at the risk of an exception by the plaintiff, we are not to presume that it was without its effect.

7. As to the opinions of the witnesses, sought to be elicited on both sides of this controversy, respecting the capacity of the testator, and the influence and control exercised over him by Mrs. Davis, his wife, were the matter res integra, 1 should be inclined, both from the weight of authority, and considerations of sound policy, to exclude the whole of them. It cannot have escaped the observation of the profession, that conclusions of this sort, especially when formed by those whose avocations do not peculiarly fit them for judging, though never so honestly formed, are most unsafe guides for the ascertainment of truth. It is however settled, that where the question of insanity is involved, the general rule which allows witnesses only to relate facts, circumstances, or a series of declarations which evince unsoundness of mind, allows of exceptions “ arising out of some peculiar relation or connection of the witness, with the person whose sanity is questioned.” See the cases collected in Bowling v. Bowling, Ex’r, 8 Ala. R. 538. Also, the State v. Brinyea, 5 Ib. 243 ; 2 Cowen &. Hill’s Notes, Phil, on Ev. 759, note 529. What class of witnesses come within this peculiar relation, so as to make their opinion, founded on the facts, legitimate testimony, is not so well settled. In Rambler v. Tryon, 7 Sergt. & R. 90, the witness, whose opinion was received, had known the testator intimately from childhood until his death. Without, however, entering upon an examination of the authorities, or presuming to lay down a rule as applicable to all cases which may arise, we think, that to render the opinions of witnesses in such cases — those who are not physicians, nor skilled as to the indicia of insanity — legal evidence, such opinions should be preceded by the facts or circumstances upon which they are based, and should only be given by those whose long intimacy, and familiar and frequent intercourse with the deceased, peculiarly pnable them to observe any mental aberration on his part.

8. The only remaining ground of objection to testimony is, that the orphans’ court permitted the contestants to prove the pecuniary condition of testator’s daughters. In Jackson v. Betts, 9 Cow. 208, it was held, that the situation of any of the testator’s children, or grand children, as to property, and the comparative inadequacy or inequality of a provision for them in his will, are inadmissible to show an express or implied revocation. It is often most difficult to determine what connection an isolated fact may have upon the issues until the whole proof is submitted. Standing alone, it may prove nothing, but connected with various other facts and circumstances, it may form a strong link in" the testimony. No competent means of ascertaining the truth ought to be rejected. The court, we think, should have admitted all testimony conducing to show the unnatural character of the will in controversy; that it deprived the most unfortunate of the testator’s family from any participation in his bounty, is a circumstance which, in connection with other circumstances, was proper to go to the jury. One question was, whether the wife of the testator had exercised such undue influence over his mind, as to take away his freedom in the execution of his will. To establish this, it was competent for the contestants, in connection with proof of acts, or efforts on her part to induce its execution in a particular way, to show that the testator was old — was in feeble health:— of weak mind — was unduly prejudiced by his wife against his children, and that his will is not such as a man influenced by the ordinary feelings which prompt us to provide for our offspring, would have made. On the other hand, it was .competent to show, that he had couse for rejecting the claims of his children — or, that the influence exercised by the wife was but the ascendancy which her virtues gained over him. For, to deny the legitimate exercise of such influence, would be to rob virtue of her reward. Small v. Small, 4 Greenl. 220.

9. We are satisfied that the court acted properly in refusing to permit the plaintiff in error to take a non-suit. This is not one of the description of cases contemplated in the statute of 4th Feb. 1846. See paraph. Acts of 1845-6, p. 35. The court, by statute, is required to proceed with the investigation, and to determine the matters put in issue — and if “the executor refuse to produce the will, he is liable to process of attachment. Clay’s Dig. 304, et seq.

Let the judgment of the orphans’ court be reversed and the cause remanded, that a venire de novo may be awarded.