Comstock v. Hadlyme Ecclesiastical Society

Williams, J. A new trial is moved for, first, because the court permitted the appellees to open and close the argument. — 261 — The real question to be tried, was, whether there was a valid will; and this question was to be decided in the same manner as if it had not been decided in the court of probate. Those who claimed under the will, must, therefore, take upon themselves the burthen of proof; and they must not only prove, that the will was formally executed, but that the testator was of sound and disposing mind. And the rule is, that where there is a necessity for any proof, on the part of the plaintiff, he ought to begin. Hodges v. Holder, 3 Campb. 366. Jackson v. Hesketh, 2 Stark. Rep. 518. And although where the defendant sets up a new case, he has been allowed to go forward; (Doe d. Corbett v. Corbett, 2 Stark. Rep. 368. Goodtitle d. Revett v. Braham, 4 Term Rep. 496.) yet where a deed or note is to be proved by the plaintiff, duress, or fraud or mistake is not such a case as will entitle the defendant to open and close. So if the defendant pleads non assumpsit to a note, and gives payment in evidence, as the plaintiff goes forward to prove the note, though the case is to turn upon payment, the defendant does not gain the right. Brooks v. Barret, 7 Pick. 100. But the question has arisen, in Massachusetts, upon a will; and it has been repeatedly decided, that those who were to prove the will, went forward. Buckminster & al. v. Perry, 4 Mass. Rep. 593. Phelps & al. v. Hartwell & al. 1 Mass. Rep. 71. Brooks v. Barret, 7 Pick. 94. I cannot doubt, therefore, that this point was rightly decided. But were it otherwise, it seems not to be a ground for a new trial. It is a matter of practice, founded indeed upon the principle, that he who takes the affirmative assumes the burthen of of proof; yet where there are several issues, or the burthen of proof changes, as it frequently does, in the course of the trial, I think as much discretion must be allowed to the judge, as in case of a motion for a continuance, or for a new trial; and that a mistake here is no more a ground for a new trial, than in those cases. And no case is recollected, in which a new trial was granted, except that in the case cited of Brooks v. Barret, it is said to have been so adjudged in Massachusetts. However it may be in that state, I know of no rule here requiring the court to grant a new trial on that account; and I am not disposed to establish such a rule. 2. It is objected to the decision below, that as the executors had accepted the trust and proved the will, they could not testify; because they are parties, and because they are interested. — 262 — As to the first objection; the rule at law is, that the parties on the record cannot be witnesses. But, are the executors parties? They have, indeed, been cited in, to shew cause, if any have; but it is merely that they may come, not that they must. But they do not appear nor plead: they have left the defence to those particularly interested in establishing the will, the society of Hadlyme. Besides, the proceedings in cases of this kind, resemble the proceedings in chancery rather than those in a court of law; particularly, in this process calling upon all interested to come in and defend. And in chancery, it is well settled, that persons who are defendants on the record, if they have no interest, may be witnesses. Neilson v. McDonald, 6 Johns. Chan. Rep. 204. And so at common law, an executor having no interest, or a mere trustee, may be a witness. Sears v. Dillingham, 12 Mass. Rep. 360. It is said, however, that they are liable to costs. If they are not parties, they are, certainly, not liable. But if they are technically parties, I do not see how they should be liable to costs. In Massachusetts, it seems, they are made liable by statute; and therefore, they are not witnesses. But in this state, in the first place, the general practice has been not to tax costs against appellees, in probate cases, where the judgment is reversed. Aside, however, from that practice; these executors being merely trustees, having no personal interest, can, upon no principle of law or equity, be answerable for costs, because they were called upon to come in and defend the will, if they saw cause, when they have seen no cause, and when they did not choose to come in and defend. The executors have adopted the course, which seems, after the case of Curtis v. Northup, Swift’s Ev. 357. to be the only safe one. They have left the heirs and devisees, the real parties in interest, to carry on the controversy, in which they alone were interested. And surely, they cannot carry it on, at the expense of those who have no manner of interest in it. It is said, again, that they have an interest in establishing the trust fund; otherwise, they never can be paid for their services; and, the above-mentioned case of Curtis v. Northup is cited. It is believed, that that case does not establish the proposition it is brought to establish. The court do, indeed, there say, that if a testator gives all his estate to one, and makes another his executor, and an heir appeals, as in this case, the executor is not bound to defend, and if he does, and the will — 263 — is adjudged void, he must lose the whole, us there is no estate, which he could charge. But a reason is given: it is unjust that he should defend at the expense of the devisee, who had no interest in it. But it does not follow, that the expenses he has incurred, or the services which he has rendered, while in the due performance of his duty, under a will legally proved, shall not be allowed him, as well as the debts he has actually paid. While he acts bona fide, under a judgment of the court of probate, he acts legally, and must be entitled to payment of his expenses and a compensation for his services. Bradford v. Boudinot, 3 Wash. C. C. Rep. 122. In the case of Hayden & ux. v. Loomis, 2 Root 350. the executor was excluded; but the case is so briefly reported that the precise point does not appear. In Hawley v. Brown, 1 Root 494. the executor declined the trust, and his wife was admitted as a witness. These are decisions of the superior court. In England, it has been settled, ever since the time of Lord Hale, that the executor, not being interested, may be a witness. Anon. 1 Mod. 107. Lowe v. Jolliffe, 1 Bla. Rep. 365. Goodtitle v. Welford, Doug. 141. Bettison & al. v. Bromley, 12 East 250. And although the question here arises in a different form from what it does in those cases, the principle is the same; and in my opinion, the executors had no interest, and ought not to have been excluded from testifying. 3. The next general question is, whether the declarations of the devisor, made about the time of executing her will, tending to shew that she was unduly influenced, ought to have been admitted in evidence. If it was claimed, that those declarations were part of the res gesta, the time when made should have been precisely stated: about the time is quite too indefinite. It should have been stated to be at the time. And if her declarations were not a part of the res gesta, I know not upon what principle they can be introduced as evidence of facts. Is a will or deed, valid upon the face of it, to be destroyed, or in any way affected, by the declarations of the devisor or grantor? Some strong authority is necessary to support such a proposition. In the case of a deed, it would not be claimed. A will, to be sure, is ambulatory; and nothing vests, during the life of the devisor. Still, however, it can be altered or revoked only in a legal manner. In Nelson v. Oldfield, 2 Vern. 76. evidence of what the testator said, to prove duress, was admitted; but no objection appears to have been made: — 264 — and the court said, the legatee had her probate, and might make what use she could of it, but a court of chancery would not aid her. In Jackson d. Coe & al. v. Kniffen, 2 Johns. Rep. 31. 34. Thompson, J. says: “To permit wills to be defeated, or in any manner whatever impeached, 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 Smith v. Fenner, 1 Gal. 172. it was held, that the declarations before and at the execution of the will, were admissible, but none made after, unless so near the time of the execution as to be a part of the res gesta, or necessarily connected with it. And in Stevens v. Vancleve, 4 Wash. C. C. Rep. 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 controul the construction of the instrument, or to support or destroy its validity.” And in Provis v. Rowe, 5 Bing. 435. (15 Serg. & Lowb. 490.) 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 doctrine, which would render useless the precaution of making a will. It would be contrary to the first principles of evidence.” In the case on trial, it does not appear, whether the declarations were before or after the execution of the will. Of course it is not necessary to determine, whether there is any real difference in the principle. It is sufficient to say, that if there is any, the fact ought to be shewn to the court, that the declarations were made before the execution of the will, or the party who asks for a new trial, can gain no benefit from that fact. 4. Another objection is to the charge of the court. The jury were instructed, that if the devisor knew what she was about,—knew the consequences of what she was doing,—if she had sufficient capacity to make any contract,—she might make a valid will. Upon this subject there may be some difficulty in fixing a standard. The question for the jury was, whether the devisor had a sound and disposing mind. Although the charge may not add much to what would occur to the minds of discreet men, on that subject; yet if no improper direction has been given, I think there should be no new trial. In Rambler v. Tryon, 7 Serg. & Rawle, 95. and in the case — 265 — cited above of Stevens v. Vancleve, the court say, that the testator may not have sufficient strength of mind and vigour of intellect to make and digest all the parts of a contract, and yet be competent to direct the distribution of his property by will. The question, says Judge Washington, resolves itself into this; were bis mind and memory sufficiently sound to enable him to know and understand the business in which he was engaged, at the time when he executed his will. 4 Wash. C. C. Rep. 466,7. And in Hathorn v. King, 8 Mass. Rep. 371. the court said, that if at the time of executing the will, the testratrix had sufficient discretion for that purpose, and was able to recollect the particulars which she had dictated, the jury might find her of sound and disposing mind. I think, therefore, that there is no ground for a new trial, as it regards the charge. 5. But the most important objection is the omission to insert the legacy to her grand-children of 100 dollars each. That the testatrix directed this ; that she supposed it was done, and that it was not done,—are to be considered as proved, for the purposes of this motion. It is said, that this omission makes the will void ; that it shews it was not her will—not the will she meant to make. Now, if a mistake in drafting a will, makes it void, it is certainly very surprising that no case has been produced from an English or American book, in support of the proposition, although the various decisions relative to the construction of the statute of frauds, would fill volumes. It cannot be believed but that similar mistakes have been often made. The statute, when it required all wills to be in writing, signed by the testator and attested by witnesses, certainly intended, that the evidence, and the whole evidence, of the disposition of property by will, should be the will itself; that the evidence of the intent of the devisor should be derived from the writing, signed by him and solemnly attested; otherwise, innumerable would be the cases, where evidence of mistake would be claimed and proved. To use the language of Ch. J. Best, in the case before cited, some witness would constantly be brought forward to set aside the most solemn instrument. 5 Bing. 435. How often is it, that the words used by the scrivener convey a different estate from what the testator designed! Yet it has always been decided, that parol testimony could not be admitted to prove, that the devisor meant to give a different estate from what the will expressed. Chappel v. Avery, 6 Conn. Rep. 34. Farrer v. Ayres, 5 Pick. 407. It is, says Lord Kenyon, — 266 — a sapred rule of property not to be departed from. Goodtitle d. Richardson v. Edmonds, 7 Term Rep. 635. 640. Richards v. Dutch & al. 8 Mass. Rep. 506. 515. And if it is settled, that you cannot, by parol proof, alter the legal import of the terms used by the scrivener, such a will must either be void, or convey a different estate from the one intended. That such a will is not void, is proved, by repeated declarations of judges, that by the legal construction, they knew that the intent of the testator was frequently violated. Doug. 763. 1 Brod. & Bing. 261. n. Cowp. 660. If by the construction given to the words used, the intent may be defeated, and yet the will remain valid, why shall not the same effect follow where it arises from an omission to insert certain words which were intended? In neither case, is the effect of the will exactly what the testator intended; but in neither case, can the fact be ascertained, without, the aid of parol testimony; and if such testimony is to be admitted, we do away part at least of the beneficial effect of the statute of frauds, and leave every will exposed to litigation, on a claim of a different intent. In contracts, mistakes have, indeed, been rectified, in a court of chancery; but no case is recollected, where they have been holden void, on account of a mistake. In Philips v. Chamberlaine, 4 Ves. jun. 51. 57. where an intention was expressed to give a legacy to the Humane Society, but no sum was inserted, the will was not held to be void. And it would seem, that in this case, if any remedy existed, it would be one that would not destroy the wdiole will, but one which would correct the mistake, and make it what it ought to be. That has been attempted, in a recent case ; and it was decided, that parol testimony could not be admitted to prove the mistake. It would be to make a will by witnesses, and not by writing; to make a will any thing, Avery & ux. v. Chappel & al. 6 Conn. Rep. 270. 275. And if such evidence cannot be admitted, in chancery, to prove a mistake in a will, where is the principle, or where the authority, that such evidence can be admitted to render the will void? Can courts of law dispense with rules of evidence more readily than courts of chancery? Or, is the obligation imposed upon them, by statute, less imperative? The general rule is, that courts of law and chancery proceed upon the same principle as to admitting parol testimony; and it is certainly a novel idea, that courts of chancery are less liberal, on that subject, than courts of law. I think, then, it follows, — 267 — that if courts of chancery cannot admit such evidence to prove a mistake, which they might correct, courts of law cannot admit it to prove a mistake to set aside the will. The danger arising from the nature of the proof, is the same in both cases; and if the rules of law would allow that proof, it would be more congenial to principle, and more likely to effectuate the intent of the devisor, to correct the mistake, than to make void the whole instrument. And if the former cannot be done, much less can the latter. The only authority cited is Downhall v. Catesby, Moore 356. referred to in 1 Swift’s Dig. 141. and in Powell. In that case, it appears, that the testator directed the scrivener to give an estate to one of his sons for life, and he gave it in fee. The court agreed, that the will was entirely void, it not being the will of the testator; though Fenner, J. held, that it might convey an estate for life. That decision was made under the statute of Hen. vni,, when a laxity was allowed with respect to wills, which produced evils, that gave rise to the statute of frauds. Under the first statute, a letter was held to be a writing within the statute. West’s case, Moore 177. So a will made by a lawyer from notes taken by him from the mouth of the deceased, was held good, though never read to him. Brown v. Sackville, 1 Dyer 72. a. And a scrap of writing, though not signed, sealed or written, by the devisor, if established by one witness, and he a legatee who had released his interest, has been held good. Stephens v. Gerrard, 1 Sid. 315. But this solitary case is said to be contradicted in Co. Ent. 252. If, however, it is admitted, that it was once law, it will no more prove, that such ought to be the construction of our statute regarding devises, than the rules of the feudal system would prove the doctrine of primogeniture now to exist in Connecticut. And the fact that no case is found since the statute of 29 Car. n. is strong, if not conclusive evidence, that such has not been the construction. I am, therefore, of opinion, that there ought not to be a new trial. The other Judges were of the same opinion. New trial not to be granted.