Dickie v. Carter

Mr. Justice Breese delivered the opinion of the Court: This cause originated before the court of probate of Alexander county, in which Carter, the defendant in error, produced an instrument in writing, which he claimed to be the last will and testament of Elizabeth Burnett, deceased, and moved the court that it might be recorded as such. The probate court heard the testimony of the subscribing and other witnesses, and decided that the instrument was not sufficiently attested, and that the testatrix was not of sound mind and disposing memory and competent to make a will. From this decision Carter appealed to the Circuit Court, and the cause was tried there by a jury, who found a verdict establishing the instrument as the will of Elizabeth Burnett. A motion was made for a new trial which was denied, and a bill of exceptions signed, and the cause brought here by writ of error. The following errors are assigned, upon which we will pass: “The court erred in giving improper instructions for the plaintiff; in modifying the instructions of the defendant; in excluding the evidence of Dr. Taggart from the jury; in admitting improper evidence for the plaintiff; in rejecting proper evidence for the defendant; in overruling defendant’s motion for new trial; in rendering the judgment in manner and form as rendered.” It is insisted by the plaintiffs in error, who, it appears, are the nearest blood relatives of the deceased, that the paper offered for probate is not the will of Elizabeth Burnett, for the reason that the requirements of the statute have not been complied with, so as to entitle the instrument to be proved as such will; and further, that there is no proof that the testatrix was of sound mind and memory at the time of executing the same. It is also objected that the will is void, as having been made at the instance of the defendant in error, the principal devisee under the will, and that the instructions given by the court, on behalf of the defendant in error, were erroneous, and those asked on behalf of plaintiffs in error were improperly refused. TJpon the first point made, that the will is not executed in conformity with the statute, it is only necessary to consider what the statute requires, and then the facts attending the execution of this will. It is conceded by plaintiffs in error, and such is the statute, that to entitle a will to probate four things must concur—it must be in writing, and signed by the testator or testatrix, or in his or her presence by some one under his or her direction; it must be attested by two or more credible witnesses; two witnesses must prove that they saw the testator or testatrix sign the will in their presence, or that he or she acknowledged the same to be his or her act and deed; they must swear that they believed the testator or testatrix to be of sound mind and memory at the time of signing and acknowledging the same. What are the facts on this point ? The witness who wrote the will, George S. Pidgeon, testified, that he was requested to draw up the paper as the will of Elizabeth Burnett, and saw her sign it on the 5th day of May, 1845, at the office of Esquire Bross, and, from all he saw and heard at the time, he took her to be of sound mind, but knows nothing of her general condition of mind — believes she was of sound mind and memory; he was one of the subscribing witnesses to the will; testatrix was not robust and did not seem in very good health; saw her only about half an hour when making the will; Mr. Bross, Mr. Fitzgerald, the defendant in error, and perhaps others were present in the police office at the time she signed the will; formed his opinion of her sanity from her conversation, and seeing nothing to the contrary. Fitzgerald, the other subscribing witness, testified, that he signed the paper purporting to be the will of Elizabeth Burnett, but did not see her sign it; saw a lady in the room, and Mr. Pidgeon asked him to witness the paper, whereupon he asked the lady “ is this your signature ? ” and she answered “ yes,” and then he signed it as a witness. She acknowledged the signature to the instrument in his presence, when he attested it, and she was in the room with him. He further testified, he saw nothing different in her from other persons, and supposed her to be of sound mind. She looked like a delicate woman; did not hear her converse with any one; she was in the same room sitting in a chair; his impression is there were two women in the room; whether the woman he addressed was Mrs. Burnett or not, he did not know; never saw the woman before or since; did not know at the time that he was witnessing a will, supposed it was a common agreement or contract; the will was not read over as he recollects, and cannot state whether she was of sound mind or not. F. Bross, Esq., testified, without objection, that Carter, the plaintiff, and Mrs. Burnett came to his office and wished him to draw a will; he was busy and recommended them to Mr. Pidgeon; it was on the 5th of May, 1865 ; Mr. Pidgeon drew the will; it was read over to Mrs. Burnett; Fitzgerald and witness, and perhaps others were in the room; that.plaintiff, Carter, Mrs. Burnett and witness were near Mr. Pidgeon when the will was read, and Fitzgerald off about eight feet; saw Fitzgerald sign the instrument at the time; does not remember whether- Carter or Mrs. Burnett applied to him to write the will; both came together and he was with her all the time. Mr. Pidgeon was then recalled by the defendants, the plaintiffs in error, and testified that he could not say whether Carter or Mrs. Burnett spoke to him to draw the will; both were there; thinks Carter paid him for writing it; does not recollect to whom he delivered the will, but thinks it was delivered to the woman. This is all the evidence as to the execution of the will, and we are at a loss to perceive wherein it is variant from the requirements of the statute. A point is made by counsel for plaintiffs in error, that Mrs. Burnett did not declare the instrument to be her will, nor did Fitzgerald know he was attesting the execution of a will. It will be observed, our statute of wills nowhere makes the publishing of a will necessary, or any declaration of the party executing it that it is his will. It requires only that wills shall be reduced to writing and signed by the testator, or by some person in his presence and by his direction, and attested in the presence of the testator by two or more credible witnesses, two of whom declaring on oath or affirmation before the court of probate for the proper county, that they were present and saw the testator sign said will, testament or codicil in their presence, or acknowledged the same to be his act or deed. Scates’ Comp. 1180. It is manifest, therefore, no publication by the testator, that the instrument is his will, is necessary. Although Fitzgerald did not know Mrs. Burnett, or actually see her sign her name, her identity with that of the person whose will he attested is clearly shown by his own testimony and that of Mr. Pidgeon and Esq. Bross, and she acknowledged it as her signature, which signature made the instrument her act and deed. The first point is fully established for the defendant in error, that the instrument was the act and deed of Mrs. Burnett, made in strict compliance with the statute. As to the question of sanity, or rather, of sound mind and memory at the time of its execution, we think the proof makes out a strong prima facie case at least. We look in vain into the record for proof of the contrary. There is not a particle of evidence the testatrix was not of sound and disposing mind and memory. The witnesses, physicians and others, examined on this point, testified to nothing from which the inference of want of soundness of mind could be properly drawn. As to the testimony of Doctor Taggart, which the court rejected, it had reference to the condition of mind of the testatrix long after she had made the will, and it did not tend to show such unsoundness of mind as would invalidate the writing as her will. The most that can be inferred from all the testimony is, that the testatrix was a weakly woman afflicted with a distressing disease which had become chronic. There is nothing in the evidence to show, that her physical condition affected, in any perceptible degree, her mental faculties. Upon the point, that the will was made at the instance of the defendant in error, who was made the principal devisee under it, we have searched the record for proof of it, and can find none; and, if it was so made, the will would be no less entitled to record in the absence of all proof of fraud, compulsion or improper conduct or of improper means used by him to induce the testatrix to act at his instance and according to his wishes. There must be no fraud or contrivance shown to induce a party to make a will in a particular way. If all is fair, and the result of honest argument and persuasion or of such influence as one may properly obtain over another, the will must stand, on the principle, that a person can dispose of his property by will as he may choose, if he be of sound mind and memory. The books are full of cases of this description, and not one can be found, we think, of a contrary bearing. Floyd v. Floyd, 3 Strobhart, 44; Potts v. House, 6 Geo. 324; Miller v. Miller, 3 Serg. & Rawle, 267; Sevewith v. Carlisle, 19 Ala. 80; Gardner v. Gardner, 22 Wend. 516; Trumbull v. Gibbons, 3 Zab. 117. Though the defendant in error may have had improper intercourse with the testatrix, that of itself, however immoral such a relation may be, is not sufficient to invalidate a will made in favor of the wrong-doer, if no improper influences are shown to have been exerted to induce the will. Fare v. Thompson, Cheves (S. C.) 37. We have examined the instructions, and find nothing in those given for the defendant in error so objectionable as to justify a reversal of the judgment. Some of them may be liable to verbal criticism, and the seventh puts the proposition too strong perhaps by the use of the word “ entirely,” yet the jury could not, with the evidence before them, have been misled, no part of it showing any illegal interference, improper conduct, or undue influence by the defendant in error operating on the testatrix, or by any other person in this behalf. The instructions on the part of plaintiffs in error were properly modified. Upon another point raised by plaintiffs in error, that the court excluded declarations of the testatrix made after the execution of the will, this was proper, for, as with deeds, so with wills, — the parties making them cannot invalidate them by their own parol declarations made previously or subsequently. Jackson ex dem. v. Kniffer, 2 Johns. 31; Stevens v. Vanclear, 3 Wash. C. C. 465 ; Provis v. Rowe, 13 Sug. C. L. 490 ; Comstock v. Hadlyne, 8 Cowen, 263, cited by defendant in error, and to which others might be added. There being no error in the record, the judgment must be affirmed. Judgment affirmed.