Newhard v. Yundt

Opinion, Mr. Chief Justice Paxson : In the first assignment, it is alleged that the court erred in not instructing the jury that “ the testimony of witnesses who depose that the testatrix was of perfect mind and memory is to be preferred to the testimony of those to the contrary.” The learned judge said, in substance, that the rule indicated in the point might be properly applied in some instances, but would not do for the case in hand. In this he was entirely right. The rule invoked is an extract from Swinburne on Wills, and [340] was incorporated into the opinion of Woodward, J., in Stevenson v. Stevenson, 33 Pa. 473. No such point was decided in that case, nor has the extract from Swinburne ever been recognized in this state in the sense now imputed to it. What was meant by it, probably, is that testamentary capacity is always to be presumed, and that such presumption stands until overcome by the weight of the testimony impeaching it. If more than this was intended, it is not law, as it is for the jury to say which witnesses are the more worthy of credit. The rule was thus correctly stated by our Brother Clark, in the recent case of Shaver v. McCarthy, 110 Pa. 339: “ The conflict in the evidence, the contrariety of the opinions expressed, and the veracity of the witnesses, are matters peculiarly within the province of the jury, and with which the court has nothing to do.” The remaining assignments, to the sixth, inclusive, allege error in the charge of the court. The burden of the complaint, however, is embodied in the sixth assignment, in which it is alleged that “ the court erred, throughout the entire charge, in rehearsing and reciting with great particularity the facts and circumstances alleged on the part of the plaintiffs to prove unsoundness of mind of the testatrix, whilst in no part of the charge is particular mention made of the facts proved by the defendant, or the plaintiffs’ witnesses on cross-examination, showing mental capacity sufficient to do business, and to make a valid will.” I have examined the volmninous charge with care, in view of this assignment, and while it is not entirely free from criticism, I do not find in it any such features as existed in the charge in Burke v. Maxwell, 81 Pa. 139. There are no misstatements of the evidence, as there were in that case, nor were deductions and theories drawn unsupported by the evidence, and which should have been left to the jury; nor were there any such expressions of opinion upon the facts as would amount to error, under the authority of Ditmars v. Commonwealth, 47 Pa. 335, where it was held that it is often proper for the court to express an opinion upon the facts, provided care is taken not to infringe the province of the jury. In referring to the testimony, and to the names of the witnesses by whom it is given, much latitude must necessarily be allowed in [341] a charge, and where there is nothing in it that is unfair, or misleading, or that withdraws the facts from the jury, we cannot reverse. We are not prepared to say that either of these defects appears in this charge. If it can be said to lean somewhat towards the plaintiffs, it may be due to the strength of their case. The seventh assignment might well be dismissed for infor.mality. It has no merit, however. The witness, Eli Diehl, had testified to sufficient facts to render him competent to give his opinion of his testator’s testamentary capacity. The value of his testimony was another matter, and of that the jury were the proper judges. The eighth assignment presents a question that is not in the record. Judgment affirmed.