Mallery v. Young

Atkinson, Justice. The Official report states with sufficient accuracy the contentions between the parties in this case. The verdict was for the caveatrix. Her contention was, that she was the next of kin of the testator, that the testator had. been induced by the representations of John E. Mallery and Sarah Welsh, who are the principal legatees under the will, to believe that she was not of kin to him, and that, acting under this belief, he had executed the will whereby his estate passed to them instead of to herself. The en’ors of law complained of go rather to the sufficiency than to the competency of the evidence submitted in the case; and therefore, the real [807] question in the case turning upon the sufficiency of the testimony, it is not material to consider any of the other errors of law alleged to have been committed. It is -shown by the testimony in this case, that Mary A. Young, the caveatrix, was the niece of the testator. Of this fact he was well advised at a date anterior to the execution of the will. It is not claimed that the testator did not have testamentary capacity. It is not claimed that he was ignorant of the relationship between himself and the caveatrix, and the plaintiff in error contends that there is no evidence whatsoever of undue influence upon the part of these legatees exercised over or operating upon the mind of the testator, save only the declarations of the testator himself to the effect that they had persuaded him that the caveatrix was not his niece. The fact that they had so persuaded him is denied on oath by each of the legatees, and no witness swears to the contrary. Evidence is said to be that which demonstrates and makes clear a question of fact at issue. Sufficient evidence is such as is satisfactory to the purpose — satisfactory in its legal sense, — such as satisfies the law as to the existence of a given, fact; and if such evidence of the fact be not submitted, then the evidence may be fairly said to be insufficient to sustain a verdict based thereon. It is a rule of law, well established by a strong and almost unbroken current of authority, — one which has been recognized by this court (see Dennis et al. v. Weekes, 51 Ga. 25, h. n. 6)—one which has been approved by the. courts of last resort in a large majority of the States of the Union, where a similar question has been under review, and one which has been accepted by the best text-writers upon the law of evidence, that the declarations of a testator, where the issue is of fraud or undue influence in the execution of a will, are not admissible to prove the actual fact of fraud or the exercise of an [808] improper influence by another. They may be competent to establish the influence and effect of the external acts upon the testator himself, their operation upon his mind, but not as evidence of the fact itself that the undue influence was exerted. See Wharton on the Law of Evidence, vol. 2, section 1010; Schouler on Wills, section 243. As to the facts themselves, such declarations amount to no more than hearsay evidence; and to permit a person to destroy, annul and revoke a will voluntarily and solemnly executed, by mere oral declaration contrary to the testamentary scheme expressly declared in a written instrument, is to overturn and destroy one of the most salutary of the elementary rules of evidence. We quote from some of the most thoroughly well considered cases the following expressions: In Jackson, Coe et al. v. Kniffen, 2 Johns. Rep., page 31, Thompson, J., says: “To permit wills to be defeated or hr any manner whatever impeachd by the parol declarations of the testator, appears to me repugnant to the very genius and spirit of the statute, and not to be allowed”; and in Stevens v. Vancleve, 4 Wash. C. C. Rep., page 265, Washington, J., says: “The declarations of a party to a deed or will, whether previous or subsequent to its execution, are nothing more than hearsay evidence; and nothing could be more dangerous than the admission of it, to control the construction of the instrument, or to support or destroy its validity.” In Provis v. Rowe, 5 Bingh., page 435, where .written declarations of the devisor, made after his will, were offered in evidence, Best, Ch. J., said: “We shall not, for the first time, establish a doctx’ine which would x’ender useless the precautioxi of making a will. It would be conti’ax*y to the first principles of evidence.” These citations might be multiplied, but are of themselves, we think, sufficient to establish the cox’rectness of the proposition stated. Upon reading this record, we find no evidexxce what [809] ever of any undue influence operating upon the mind of the testator, save that resting for its support upon the declarations of the testator, to the effect that John Mallery and Mrs. Welsh had induced him to believe that the caveatrix was not of kin to him. In the absence of some testimony outside of these declarations which establishes this fact, it cannot be adjudged that this verdict rests .upon any evidence at all. The circuit judge, therefore, should have set it aside and upon that ground awarded a new trial. Let the. judgment, of the court below be Reversed.