Saunders's Appeal from Probate

Loomis, J. The object of this appeal was to set aside the decree of the probate court approving the will of Boxanna Saunders, deceased, upon the ground of. undue influence on the part of Clark Cook and Fanny Cook, two of the legatees named in the will. Upon the trial the appellant in his testimony in chief, without specifying his object, and without any objection, offered in evidence the declarations of said Clark Cook, made soon after the date of the will,- to the effect “ that he and Aunt Fanny had got the will fixed as they wanted it; that John had got enough already; that they had got it fixed now with a man put in as executor who was not afraid of John [113] Saunders.” The appellant was the person referred to as “ John ” and as “ John Saunders.” Afterwards the appellees introduced said Clark Cook and Fanny Cook as witnesses, who testified that they never exercised any influence over the testatrix, relative to the matters in controversy. Upon the final argument of the cause the counsel for the' appellees claimed, and requested the court to instruct the jury, that the evidence of the declarations made by Clark Cook was not admissible for any purpose. The court charged the jury as follows:—“ Now a word as to the admissions of Mr. Cook, that were put in evidence, and about which comment has been made. This evidence was admitted without objection. It was, as I understood and supposed at the time, offered for the purpose of contradicting the party who had been a witness, testifying that there was not any undue influence. It was offered for the purpose of affecting Ms testimony, and for that purpose I charge you it was admissible. The point made, as I understand it, is this: If offered for the purpose of showing or proving as evidence that undue influence was in fact used, it is claimed to be inadmissible as against other parties, legatees and beneficiaries under the will, as an admission made by a party who had no right to make an admission for them— whose admission is not evidence against them. And I understand that the adimssion of a third party, a stranger, cannot affect the rights of another party, and for the purpose of affecting the rights of the other beneficiaries under the will this testimony is not admissible. But I do not understand, as I said before, that it was offered for that purpose, and I charge you that it is evidence for the purpose for wMch it was offered, and, so far as I know, the only purpose for which it was offered, namely, to contradict the witnesses who were charged with having used undue influence, and who said that no undue influence was used, by showing that they admitted, so far as that was an admission, that undue influence had been used, and for that purpose you may consider it as evidence in the case.” [114] The question raised by the objection is, whether the evidence was admissible for any purpose; if so there was no error, unless the admission was accompanied with instructions which allowed the jury to make an illegitimate use of the evidence. The evidence was admissible for two purposes:—as an admission of a fact in issue by Clark Cook, a party to the controversy, to affect him; and also to affect Ms credibility as a witness, being a statement out of court inconsistent with his testimony in court. The court ruled that the evidence was admissible for the last named purpose only, and in so ruling erred in favor of the party now claiming to be aggrieved. But it is now claimed that the evidence was not admissible for the purpose allowed by the court, because it was actually received (though without objection) before Clark Cook had testified. We think, however, that after the evidence was all in it was too late to object merely on account of the order of its admission. The order of proof had then become wholly immaterial. The foundation for the evidence had then been completely laid, and the only possible reason for its rejection no longer existed. Suppose a case to depend on the question whether the act of one person is binding upon another who is represented to be the principal, and evidence as to the act of the agent is first received, either without objection or as a matter of discretion with the court, will not the subsequent proof of authority for the act on the part of the principal have precisely the same effect as it would have had if the order had been reversed ? Or suppose the declarations in question had been first distinctly offered and received simply as an admission by a party of a relevant fact, could not the same evidence, after the party had testified and deMed the fact, be used to discredit Mm as a witness ? Or is the law so unreasonable as to require the useless repetition, of the same testimony after the party shall have testified as a witness ? The mere statement of such a proposition involves its own refutation, and we forbear further answer. [115] But the appellees further claim that the instructions as given might lead the jury to think that the declarations of Clark Cook could he used also to impair the credit of Fanny Cook, another witness. If we take the whole charge together, and consider it in reference to the claims of the parties as understood by the court at the time, we do not think it fairly admits of any such construction. The language of the charge as first used can by no possibility be misunderstood. Referring in terms to the admissions of Mr. Cook, and no one else, the judge says:—“ It was, as I understood and supposed at the time, offered for the purpose of contradicting the party who had been a witness, testifying that there was not any undue influence. It was offered for the purpose of affecting his testimony, and for that purpose I charge you it was admissible.” The question is then referred to in a more general and abstract form as to the effect of an admission by one party on the rights of other parties, legatees and beneficiaries under the will, and again the rule is clearly stated that such an admission cannot affect the rights of another party—“ and for the purpose of affecting the rights of the other beneficiaries under the will this testimony is not admissible.” So far the meaning is very clear, that Fanny Cook cannot in any way be affected by the declarations of Clark Cook or any other party. The only color given for the appellees’ claim is in what follows, where the judge, having just stated the rule as to plural parties, unconsciously uses the plural when he attempts to repeat, as he says he does, his first proposition—that the evidence was offered “ to contradict the witnesses who were charged with using undue influence,” &c. If this language is broad enough to include Fanny Cook, the sentence which immediately follows, in connection with the conceded facts, shows that she cannot be so included, for such witnesses were to be contradicted “ by showing that they admitted, so far as that was an admission, that undue influence had been used.” Now there was no evidence, and no claim or pretense, that Fanny Cook admitted that she had used undue [116] influence, and therefore she ought not to be included even in the last statement, and as she had been twice clearly excluded we do not think the jury could have been misled by the merely obscure language of the closing part of the charge. The other part of the charge complained of, stating in substance that the existence and exercise of the undue influence relied upon might be found as a fact from all the facts and circumstances, even if there was no direct and positive evidence, provided the facts and circumstances were such as to lead justly and reasonably to such an inference, was unexceptionable. There was no error in the rulings complained of. In this opinion the other judges concurred.