Shailer v. Bumstead

Colt, J. Several questions arising upon the admission and rejection of evidence at the trial are presented by this report. One of the most important, whether we regard its practical consequences, or the apparent, and to some extent real, conflict of authority, relates to the admissibility of the declarations of the testatrix made after the execution of the will. Such declarations-were offered to sustain the allegations of fraud and undue influence, and ignorance of its contents, and were excluded. That the instrument which contains the testamentary disposition of a competent person, executed freely and with all requisite legal formalities, must stand as the only evidence of sucn disposal, is generally conceded. Such a will is not to be controlled in its plain meaning by evidence of verbal statements inconsistent with it; nor impaired in its validity and effect by afterthoughts or changes in the wishes or purposes of the maker, however distinctly asserted. It is to be revoked only by some formal written instrument, some intentional act of destruction or cancellation, or such change of circumstances as amounts in law to a revocation. Any invasion of this rule opens the way to fraud and perjury; promotes controversy; destroys to a greater or less degree that security which should be afforded to the exercise of the power to control the succession to one’s property after death. But the rule assumes that the will sought to be affected has once had a valid existence. It is always liable to be impeached by any competent evidence that it was never executed with the required — 120 — formality, was not the act of one possessed of testamentary capacity, or was obtained by such fraud and undue influence as to subvert the real intentions and will of the maker. The declarations of the testator accompanying the act must always be resorted to as the most satisfactory evidence to sustain or defend the will whenever this issue is presented. So it is uniformly held that the previous declarations of the testator, offered to prove the mental facts involved, are competent. Intention, purpose, mental peculiarity and condition, are mainly ascertainable through the medium afforded by the power of language. Statements and declarations, when the state of the mind is the fact to be shown, are therefore received as mental acts or conduct. The truth or falsity of the statement is of no consequence. As a narration, it is not received as evidence of the fact stated. It is only to bé used as showing what manner of man he is who makes it. If therefore the statement or declaration offered has a tendency to prove a condition not in its nature temporary and transient, then, by the aid of the recognized rule that what is once proved to exist must be presumed to continue till the contrary be shown, the declaration, though prior in time to the act the validity of which is questioned, is admissible. Its weight will depend upon its significance and proximity. It may be so remote in point of time, or so altered in its import by subsequent changes in the circumstances of the maker, as to be wholly immaterial, and wisely to be rejected by the judge. Upon the question of capacity to make a will, evidence of this description is constantly received; and when the issue is one of fraud and undue influence it is equally material. The requisite mental qualification to make a will might exist, and be entirely consistent with such a degree of weakness, or such peculiarity, as would make the party the easy victim of fraud and improper influence. The evidence is here offered only to establish the allegations of ignorance of the will, and of fraud and undue influence. The verdict of the jury at a former trial having established, beyond controversy now, that the will was made by one in possession of the requisite testamentary capacity, its admissibility is to be considered only upon the remaining issue. — 121 — To establish the charge of fraud and undue influence, two points must be sustained: first, the fact of the deception practised, or the influence exercised ; and, next, that this fraud and influence were effectual in producing the alleged result, misleading or overcoming the party in this particular act. The evidence under the first branch embraces all those exterior acts and declarations of others used and contrived to defraud or control the testator; and under the last includes all that may tend to show that the testator was of that peculiar mental structure, was possessed of those intrinsic or accidental qualities, was subject to such passion or prejudice, of such perverse or feeble will, or so mentally infirm in any respect, as to render it probable that the efforts used were successful in producing in the will offered the combined result. The purpose of the evidence in this direction is to establish that liability of the testator to be easily affected by fraud or undue influence, which constitutes the necessary counterpart and complement of the other facts to be proved. Without such proof, the issue can seldom, if ever, be maintained. It is said to be doubtful whether the existence and exercise of undue influence does not necessarily presuppose weakness of mind, and whether the acts of one who was in all respects sound can be set aside on that ground in the absence of proof of fraud or imposition. And it is certain that, however ingenious the fraud or coercive the influence may be, it is of no consequence, if there was intelligence enough to detect and strength enough to resist them. The inquiry is of course directed to the condition at the date of the execution of the will; but the entire moral and intellectual development of the testator at that time is more or less involved; not alone those substantive and inherent qualities which enter into the constitution of the man, but those less permanent features which may be said to belong to and spring from the affections and emotions, as well as those morbid developments which have their origin in some physical disturbance. All that is peculiar in temperament or modes of thought, the idiosyncrasies of the man, so far as susceptibility is thereby shown, present proper considerations for the jury. They must — 122 — be satisfied, by a comparison of the will, in all its provisions and under all the exterior influences which were brought to bear upon its execution, with the maker of it as he then was, that such a will could not be the result of the free and uncontrolled action of such a man so operated upon, before they can by their verdict invalidate it. 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. For, by common observation and experience, the existence of many forms of mental development, especially that of weakness in those faculties which are an essential part of the mind itself, when once proved, imply that the infirmity must have existed for some considerable time. The inference is quite as conclusive that such condition must have had a gradual and progressive development, requiring antecedent lapse of time, as that it will continue, when once proved, for any considerable period thereafter. The decay and loss of vigor which often accompanies old age furnishes the most common illustration of this. It is difficult to say that declarations offered to establish mental facts of this description are of equal weight, whether occurring before or after the act in question. But, if they are equally significant and no more remote in point of time, they are equally competent, and may be quite as influential with the jury. The difficulty in the admission of these subsequent statements of the testator has been, that, while competent for the purpose above indicated, they are not, by the better reason and the most authoritative decisions, admissible to establish the fact of fraud and undue influence as one of the constituent elements of the issue. When used for such purpose, they are mere hearsay, which, by reason of the death of the party whose statements are so offered, can never be explained or contradicted by him. Obtained, it may be, by deception or persuasion, and always liable to the infirmities of human recollection, their admission for such purpose would go far to destroy the security which it is essential to preserve. The declaration is not to be wholly rejected — 123 — however,if admissible on other grounds; and it must be left to the judge carefully to point out how far it is to be rejected or received as evidence by the jury. Ordinarily we should expect more or less evidence of the prior existence of those peculiarities which the subsequent declarations give evidence of; and in the reported cases this will generally be found to be so. It is not necessary to decide whether, in the entire absence of such evidence, subsequent declarations would ever be competent. Where a foundation is laid by evidence tending to show a previous state of mind, and its continued existence past the time of the execution of the will is attempted to be proved by subsequent conduct and declarations, such declarations are admissible, provided they are significant of a condition sufficiently permanent, and are made so near the time as to afford a reasonable inference that such was the state at the time in question. The doctrines thus stated are maintained by the current of English and American authority. In Provis v. Reed, 5 Bing. 435, the statements of the testator which were offered were regarded by the court as offered to prove specific acts of fraud and improper influence. The distinction here suggested does not seem to have been required in the case, and such statements were emphatically declared inadmissible, by Best, C. J., as rendering useless the precaution of making a will. The same doctrine is recognized, and the principle discussed, in Marston v. Roe, 8 Ad. & El. 14, where Tindal, C. J., goes somewhat fully into the matter, although the precise ques tian was upon the revocation of the will. In New York, in the case of Jackson v. Kniffen, 2 Johns. 31, the point was raised and decided; and the statement of the testator, that he had executed the will by force and for fear of being murdered, was rejected. The distinction taken in the more re cent cases between such proof of exterior facts and such proof of mental status is not alluded to. And Spencer, J., in his dissenting opinion, favors the admission of the declarations, on the ground that they were the declarations of the sole party in interest at the time, because no one else could have an interest in a — 124 — will, living the testator. The whole matter is discussed more fully, and the distinctions accurately pointed out, in Waterman v. Whitney, 1 Kernan, 157. Subsequent declarations inconsistent with the will, in connection with other evidence tending to prove want of mental capacity, are held by Selden, J., and a majority of the court, to be competent, upon a full review of the decisions. In Connecticut the same rule prevails, and was stated in Comstock v. Hadlyme Ecclesiastical Society, 8 Conn. 254. In Vermont, in the case of Robinson v. Hutchinson, 26 Verm. 47, where the question is fully considered, Isham, J., says: “ We do not perceive any serious objection to the admission of this testimony, under that limitation, when the declarations were made so near the time of the execution of the will that a reasonable conclusion may be drawn as to the state of mind of the testatrix at the time the will was executed. Weakness of mind arising from advanced age, in connection with causes, suggested in this case, is progressive and permanent in character It exists in the mind itself, and therefore it is that weakness of mind at the time of making the will may be inferred from weakness subsequent, as much so as imbecility of mind under similar circumstances.” In Moritz v. Brough, 16 S. & R. 402, the supreme court of Pennsylvania held declarations admissible to show mental condition. See also McTaggart v. Thompson, 14 Penn. State, 149 154. In the recent case of Boylan v. Meeker, 4 Dutcher, 274, the whole subject is discussed. The issues there were, incapacity forgery of the will, fraud practised by inducing signature to a paper without knowledge that it was a will. The court say that upon a review of the case no doubt can be entertained of the testator’s capacity. The contestants relied on the conduct and declarations of the testator to show that he never knew after-wards of the existence of the will, and therefore could not have knowingly executed the paper. It appears that the declarations were offered on the broad ground that, even if the testator had testamentary capacity, yet he never executed the will, because — 125 — of his declared ignorance of any such paper. In the discussion of the case, the court seem to regard ignorance of a fact existing at any particular time as not evidence of a state of mind in any sense affecting its capacity. But, however this may be, the whole case clearly recognizes the admissibility of subsequent declarations to prove mental condition, and is in harmony with the main current of authority. The declarations were held incompetent in that case, but it was upon the ground that the evidence was offered to support the act of fraud charged, and had no tendency to establish mental condition. Two cases in North Carolina áre apparently in conflict with these authorities. Reel v. Reel, 1 Hawks, 248. Howell v. Barden, 3 Dev. 442. In the first of these, the court follow, and approve of, the dissenting opinion of Spencer, J., in Jackson v. Eniffen, supra; and, in the last case, the court, by Ruffin, J., declare themselves bound by the former decision. It does not appear what were the precise declarations in this case; but in Reel v. Reel, in connection with the evidence that the mind of the testator had been greatly impaired by previous habits of intoxication, and had been weak from his youth, the declarations admitted may be held competent, without overruling Jackson v. Kniffen. See also Cawthorn v. Haynes, 24 Missouri, 236; 3 Lead. Cas. in Eq. (3d Am. ed.) 503, note; 1 Redfield on Wills, 551-561. This discussion, though thus prolonged, may not be dismissed without presenting another view upon which the evidence under consideration may be competent. A will made when fraud or compulsion is used may nevertheless be shown to be the free act of the party, by proof of statements in which the will and its provisions are approved, made when relieved of any improper influence or coercion. It is always open to inquiry whether undue influence in any case operated to produce the will; and, as the will is ambulatory during life, the conduct and declarations of the testator upon that point are entitled to some weight. Indeed, the fact alone that the will, executed with due solemnity by a competent person, is suffered to remain unrevoked for any considerable time after the alleged causes have ceased to oper — 126 — ate, is evidence that it was fairly executed; to meet which, to some extent at least, statements of dissatisfaction with or want of knowledge of its contents are worthy of consideration and clearly competent, however slight their influence in overcoming the fact that there is no revocation. All this evidence, under whatever view it is admitted, is competent only and always to establish the influence and effect of the external acts upon the testator himself; never to prove the actual fact of fraud or improper influence in another. Coming now to the application of these rules to the case here presented, we cannot avoid the conclusion that the report shows that evidence of the subsequent declarations of the testatrix, to the effect that the will so made was contrary to her real intentions, or that she was ignorant of its contents, should have been admitted. The character and habits of the testatrix in her better days, the whole of her later life, with her expressed purposes and wishes up to the time of the will, were exhibited in evidence. With a considerable degree of physical weakness, that loss of vigor and activity in the mind, which indicates in persons of her habits and years the increasing infirmities and decay of old age, was shown to exist at and before the date of the will, for the purpose of increasing the probability that she was the victim of the improper designs of others. The precise statements are not reported, nor does it appear at what precise time they were made, but they were offered to show either ignorance of the contents of the will, or that they were contrary to her real intentions, and that the will was im properly obtained by the fraud and undue influence of the exec utors named. As we have already seen, this evidence was not competent as a declaration or narrative to show the fact of fraud or undue influence at a previous period. But it was admissible not only to show retention or loss of memory, tenacity or vacillation of purpose existing at the date of the will, but also in proof of long cherished purposes, settled convictions, deeply rooted feelings, opinions, affections or prejudices, or other intrinsic or enduring peculiarities of mind, inconsistent with the dispositions made — 127 — in the instrument attempted to be set up as the formal and deliberate expression of the testatrix’s will; as well as to rebut any inference arising from the non-revocation of the instrument. They vere not rejected as too remote in point of time, or as having no tendency in their character to sustain the fact claimed to exist. In connection with the evidence thus offered and rejected, the contestants offered also the declarations and conduct of Hayden and Shailer, named executors, subsequent to the date of the will. And this brings us to another important question in the case. The evidence, for the purpose for which it was offered, was, we think, properly excluded. It was not proposed thereby to contradict their testimony. The admissions of a party to the record against his interest are, as a general rule, competent against him ; and this rule applies to all cases where there is an interest in the suit, although other joint parties in interest may be injuriously affected. But it does not apply to cases where there are other parties to be affected who have not a joint interest, or do not stand in some relation of privity to the party whose admission is relied upon. A mere community of interest is not sufficient. Devisees or legatees have not that joint interest in the will which will make the admissions of one, though he be a party appellant or appellee from the decree of the probate court allowing the will, admissible against the other legatees In modern practice, at law even, the admissions of a party to the record who has no interest in the matter will not be permitted to be given in evidence to the prejudice of the real party in interest. In this case, it does not appear at what time after the ¿ate of' the will these declarations were made, whether before or after the death of the testatrix, or before or after the offer of the will for probate ; and perhaps it is not material. They stand upon the same ground with statements made at any time since the date of the will, by any other devisee or legatee named in the will, or heir at law or legatee under the former will of 1851, whose interests are affected and who is a party to this record. Before the death of the testatrix, the interest of all these parties — 128 — in a will, liable at any time to be revoked, was not such a direct interest as should render their admissions competent against other parties. The separate admissions of each, made after the act, that the will was procured by their joint acts of fraud or undue influence, cannot be permitted to prejudice the other. Such statements are only admissible when they are made during the prosecution of the joint enterprise. Admitting for the present that any interest in a will obtained by undue influence cannot be held by third parties, however innocent of the fraud, and that the gift must be taken tainted with the fraud of the person procuring it, still it by no means follows that the interest of the other innocent legatees should be liable to be divested by the subsequent statements of the parties procuring the will. Such a rule would violate all sense of right, and is not sustained by the decisions. The principal case, most often cited in support of the doctrine that such admissions are competent, is Atkins v. Sanger, 1 Pick. 192. The will was contested on the ground that the testatrix was not of sound mind and had been unduly practised upon. The declarations of one of the executors named, who were the principal legatees, were offered to show the circumstances attending the making of the will. Their admissibility was expressly urged on the ground that the parties to the record could not, as the law then was, be called as witnesses, and there was no way of proving the facts. The chief justice, after a short consultation with his brethren, said the court were inclined to admit the declarations as to facts which took place at the making of the will, but added that the decision did not interfere with Phelps v. Hartwell, 1 Mass. 72. This is the whole of the case. It is to be noted that the case was heard before the full court without a jury. The rule may have been less carefully laid down than it would have been if the question had arisen on the admissibility of the evidence in a jury trial. Under the present law of this Commonwealth making parties to the record witnesses, illustrated in this very case by calling the parties whose admissions were offered and subjecting them to the cross-examination of the contestants, we cannot think — 129 — the rule now contended for would have been adopted, as it seems to have been in Atkins v. Sanger. In Ware v. Ware, 8 Greenl. 42, which was an appeal from the decree allowing probate, of John Ware’s will, the appellee was permitted to prove that Abel Ware, the only appellant, said, two or three weeks before the death of the testator, that he had his senses. This case, so far as it permits the opinions of a party on the question of sanity to be put in evidence against him, is in conflict with Phelps v. Hartwell, supra; but on a closer examination it seems to be in harmony with the law as here stated. It does not appear that the appellant was not the sole party in interest. The fact that be was alone interested is to be inferred; for Mellen, J., in reference to this point, says that by law the confessions of a party may always be given against him and his interest, but not thereby to defeat or impair the rights of others claiming under him. Upon principle, and by the weight of decided cases, we think there was no error at the trial in the present case in this respect. Clark v. Morrison, 25 Penn. State, 453. Titlow v. Titlow, 54 Penn. State, 222. Osgood v. Manhattan Co. 3 Cowen, 612. Dan v. Brown, 4 Cowen, 492. Hauberger v. Root, 6 W. & S. 431. Thompson v. Thompson, 13 Ohio State, 358. Blakey v. Blakey, 33 Alab. 616. The conduct of Shailer and Hayden in relation to the property and business of the testatrix stands on the same footing with their admissions. It had no legal tendency to establish the issue on the part of the contestants. The act could not be invalidated, so far as others at least were concerned, by their subsequent conduct. The codicil of 1857, if freely and intelligently executed, would of itself fully establish the will of 1853. But the conduct of either in procuring it was clearly incompetent on these issues. All the other specific subsequent conduct offered seems to have consisted of independent and disconnected acts, not in any way related to the" making of the will of 1653. Any subsequent acts of theirs, or of any one else, by which the testatrix was in any way prevented from revoking or making any shange in her will if she desired, or by which her relatives and — 130 — friends were prevented or debarred in any way from free access to and communication with her, were expressly allowed to be shown. The deed of 1857 to Hayden, the consideration for which was inquired of in his cross-examination, was properly excluded as not tending to contradict his testimony. The facts inquired of were not material to the issue, and were not open to contradiction. The auditing of Hayden’s accounts by Shailer in 1855, her dissatisfaction with and continued employment of Hayden, proposed to be proved in cross-examination of Shailer, were circumstances too remote in point of time to have any bearing upon the mental status at the date of the will. It was further objected that Hayden and Shailer were not competent witnesses under the statute. But this is not a case where one of the original parties to the contract or cause of action in issue and on trial is dead. They are not parties in a representative capacity. There was no cause of action in existence till the death of the testatrix. The controversy is between living parties. The testatrix is in no sense a party to the original cause of action. Her act was only the subject matter of the investigation. The rule contended for would exclude parties on both sides in all cases where litigation should arise, growing out of the act of another during life. We cannot construe the proviso of the statute so as to exclude as witnesses all those who may be parties on one side or the other in all probate appeals like this; and we find no error in the ruling. Gen. Sts. c. 131, 14. Baxter v. Knowles, 12 Allen, 114. Facts showing the mental and moral condition of the testatrix in July 1854, and at various periods subsequent to that time, were offered, and excluded as being too long after the date of the will. To a great extent, it must be left to the presiding judge to determine upon the facts before him how far evidence of this description may have a tendency to throw light on the fact to be found, namely, the actual condition at the date of the will. Some limit must of course be bad in applying practical!y the rules which govern the admission of this evidence. We do not perceive any reason to differ from the judge in the limit here applied. After July 1854 her mental condition must have — 131 — greatly changed. Her advanced age and the paralysis with which she was at that time seized seem to make that period a proper limit for the evidence offered ; and we see no reason for sustaining this exception. In regard to the offer to show that several of the family of the testatrix had been, in advanced age, affected by paralysis, accompanied by an enfeebling of the mental and moral powers, and that it was a family tendency, we are of opinion that no sufficient foundation was laid for the admission of such evidence. In questions of sanity, proof of hereditary tendency is competent in support of evidence of the existence of insanity in any given case. Here the sanity of the testatrix is not to be called in question. Her complaints of numbness in 1851, her physical weakness and mental inactivity prior to the attack of paralysis in 1854, do not justify the admission of the proof offered of hereditary tendency. No case is cited in which such evidence has been admitted in aid of the proof showing mere weakness of mind or eccentricity. 1 Redfield on Wills, 156, 157. Baxter v. Abbott, 7 Gray, 75. The only remaining point arises upon the manner in which the issues as framed were submitted to the jury by the presiding judge. It is claimed to be the duty of this court now to revise the order, upon exceptions or appeal taken in the usual way. In the matter of framing issues, proceedings in probate appeals are conducted in accordance with the rules and practice in equity. The findings of the jury in such cases are availed of to inform the court in matters of controverted facts which may become material in settling the final decree. They may be disregarded, in whole or in part, if on the final hearing they are not deemed important or relevant; or such new issues may from time to time be framed and submitted as a just regard to the rights of all may seem to require. Three testamentary papers were here produced, purporting to have been executed in three different years. The like four issues were presented as to each. The court, having regard to the fact alleged, that the mental capacity of the testatrix had been seri ously affected by severe illness between the years last named — 132 — ordered the issues tried separately; and those relating to the will of 1853 have been accordingly twice tried. Two of the issues at the first and two at the last trial were found in favor of the will. We cannot see that any injustice has been or is likely to be done by submitting the issues in this way to the jury or that the trial of the issues upon the will of 1853 ought not now to be completed. The exceptions having been sustained in the single respect above stated, the last verdict of the jury upon the issues relating to the will of 1853 is therefore set aside, and a new trial ordered upon the second and third issues relating to that will.