Kultz v. Jaeger

Mr. Justice McComas delivered the opinion of the Court: There was no evidence which would have justified the jury in returning a negative answer to the first issue; indeed, there was no evidence that Hannah Jaeger lacked testamentary capacity. The evidence was all the other way, and the declarations of the testatrix were excluded by the court because they were offered upon the issue relating to undue influence only. The second issue was properly answered in the affirmative. That Hannah Jaeger executed this will was undisputed. We have substantially stated the testimony which relates to the third issue, — the inquiry whether or not the will was procured by the undue influence of Frank Jaeger. When a wife, as in this instance, makes a will devising all of her estate to her husband, there is no inference of undue influence merely from that fact. These parties had lived together as husband and wife for about ten years, and the testimony shows that often during that period they quarreled, and that the husband had been abusive and threatening toward his wife; but it appears that they lived together, and did not separate. The court below remarked that the witnesses to the will bore strong testimony as to — 307 — the capacity of the testatrix and to her knowledge of what she was doing. There is nothing in the record to indicate that the testatrix was incapable of making a will, and there is an absence of any testimony to show that Frank was present at the making of the will. His quarreling and threats of personal injury would tend to dissuade a wife of good sense, a business woman as the testatrix was, from giving her property to her husband. But the testimony does not indicate that she was unforgiving. Tears before she had conveyed half of her property to him, and there is some evidence that the former conveyance resulted from his importunity. Apart from the quarrels and disagreements during the last years of her life, there is no evidence that the husband was urging the wife to make the will, or that she yielded to any such importunity. It does appear that Frank told his brother Carl he was anxious she should make such will, and that he went after Boyer, the notary public, who prepared the will, and, with another, witnessed it. It appears that he was anxious for such a will as the testatrix made. The age of the testatrix does not appear. The evidence indicates that she was in the prime of life; that she had considerable business capacity, and had attended to business until the day Avhen she executed the will; and the evidence shows that she had been and was then of sound and disposing mind and capable of executing this will; and the Supreme Court has announced the rule that the will of a person found to be possessed of sound mind and memory is not to be set aside on eAÚdence tending to show only a possibility or suspicion of undue influence. Beyer v. Le Fevre, 186 U. S. 126, 46 L. ed. 1085, 22 Sup. Ct. Rep. 765. There is no presumption of law that a devise to the husband by his wife is fraudulent. That a wife should devise her property, or some of it, to her husband, is not unnatural, nor is it suggestive of undue influence. Montgomery v. Craig, 128 Ind. 48, 27 N. E. 427; Orth v. Orth, 145 Ind. 184, 32 L.R.A. 309, 57 Am. St. Rep. 185, 42 N. E. 277, 44 N. E. 17. Her personal estate was principally $4,000 or $5,000 in money in a building association. Her real estate was an undiA'ided half of íavo houses and lots worth about $5,000, and an — 308 — undivided half interest in another house of small value. Her husband owned the other undivided half of the two houses and lots first mentioned. The evidence admitted in this case is that there were repeated quarrels and disputes between the pair during a series of years, and of ill treatment of the wife by the husband. It appears that Frank went for Boyer, the real estate man, who prepared the will, and soon thereafter, on the same day, Frank said to his brother, a witness for the caveators, “I am all right now; I have got it fixed up now.” There is other evidence that Frank wanted Hannah to make a will, that he was selfish and unfeeling, and anxious that she should make a will before she went to the hospital. Mary, the wife of Carl Jaeger, says she heard Frank tell Carl that he was all right now, and Hannah was fixed all right; she had made a will and could go to the hospital. The will was not an unnatural will, and that a wife should have a quarrelsome husband, and on the eve of her death be ready to forgive and forget, is not uncommon. This couple were childless; her mother and sister, the caveators, were in no wise dependent upon the testatrix. At most, we cannot say that this evidence amounted to more than a suspicion of undue influence, — a possibility of threats approaching duress. .The court below heard all of the witnesses, saw them all, and determined to instruct the jury to find for the caveatee upon all these issues; that his instruction in respect to two of these issues was right is not disputed. Under all the circumstances, we cannot reverse his conclusion in respect of the third issue of undue influence. The declarations of the testatrix, made before and after the execution of this paper, were excluded because they could only relate to this last issue. It is assigned as error that the court erred in excluding all the testimony concerning the relations between Hannah and Frank Jaeger prior to the execution of this paper. The evidence we have recited shows that the court very liberally admitted evidence of frequent quarrels and disputes between them. There is no reversible error here. It is claimed that the court erred in excluding the declarations of his wife concerning her relations with her husband before and — 309 — after the execution of this paper, and also in excluding her declarations as to her testamentary intentions. We have already stated the instances in which the court excluded such declarations. In our opinion the court carefully followed the rule in Throckmorton v. Holt, 180 U. S. 552, 45 L. ed. 663, 21 Sup. Ct. Rep. 474. In that case the issues were forgery and revocation. In this the issues were the execution of the will, mental capacity, and undue influence; but the execution of the will was undisputed, and the mental capacity of the testatrix was clearly shown by the caveator’s testimony. The disputed issue was that concerning undue influence. The court correctly applied the rule so clearly stated by Mr. Justice Peckham: “After much reflection upon the subject, we are inclined to the opinion that not only is the weight of authority with the cases which exclude the evidence both before and after the execution, but the principles upon which our law of evidence is founded necessitate that exclusion. The declarations are purely hearsay, being merely unsworn declarations, and, when no part of the res gestee, are not within any of the recognized exceptions admitting evidence of that kind. Although in some of the cases the remark is made that declarations are admissible which tend to show the state of the affections of the deceased as a mental condition, yet they are'generally stated in cases where the mental capacity of the deceased is the subject of the inquiry, and in those cases his declarations on that subject are just as likely to aid in answering the question as to mental capacity as those upon any other subject. But if the matter in issue be not the mental capacity of the deceased, then such unsworn declarations as indicative of the state of his affections are no more admissible than would be his unsworn declarations as to any other fact. “When they are not a part of the res gestae, declarations of this nature are excluded because they are unsworn, being hearsay only; and where they are claimed to be admissible on the ground that they are said to indicate the condition of mind of the deceased with regard to his affections, they are still unsworn declarations, and they cannot be admitted if other unsworn declarations are excluded. In other words, there is no ground for — 310 — an exception in favor of the admissibility of declarations of a deceased person as to the state of his affections, when the mental or testamentary capacity of the deceased is not in issue.” Pp. 573, 574, L. ed. pp. 673, 674, Sup. Ct. Rep. pp. 482, 483. We therefore hold that the court below committed no error in excluding proof of the declarations of Hannah Jaeger, before and after the execution of this paper, concerning her testamentary intentions, or concerning her relations with her husband, her mother, and her sister prior to its execution. The fourth assignment of error insists the court erred in excluding testimony tending to show that the testatrix was ignorant of the fact that she had executed the alleged will. Prom the record we cannot find that such testimony was offered. The court did not err in excluding from the jury the statement of Christina McGuigan that about 1898 she found her sister Hannah lying panting in the vestibule of Christina’s house, and that thereafter Prank Jaeger made the remarks which we have before mentioned; nor did the court err in excluding the testimony of Mrs. Carl Jaeger that, eight years before her death, Hannah Jaeger ran into her house, saying that Prank Jaeger had threatened to kill her. This evidence of quarrels between the husband and wife occurring five years and eight years before the death of Hannah Jaeger was followed by long intervals wherein this couple lived together amicably. They never separated, and during the last few months of Hannah Jaeger’s life they dwelt together in comparative quiet and peace. The court properly rejected the testimony of the witness Turner that three and a half years before the death of Hannah Jaeger, when he was making repairs upon the house of Mrs. Kultz, he saw Mrs. Jaeger in tears, and in his opinion her manner toward Prank Jaeger was that of a woman who was cowed and intimidated, and she was very humble before her husband. Such an opinion was not admissible. We have thus disposed of all the exceptions to testimony we need consider. Appellants’ counsel insist that the alleged will should be held to be an incomplete-testamentary paper because as it is written — 311 — it is meaningless, and because tbe names of tbe residuary devisees and legatees were never inserted in the blank spaces intended for such names; that on its face it shows that this was never a final and complete testamentary paper. A paper may not operate as a will disposing of property, and yet it may be good as a testamentary appointment of an executor, and therefore be admitted to probate if, looking at the entire paper, it is clear the paper was executed animo testandi. Lungren v. Swartzwelder, 44 Md. 491. The appellants applied for a writ of error to the Supreme Court of the United States, on May 15, 1907, and the same was allowed on the same day. This paper not only appoints an executor, but intends to devise and bequeath real and personal property, in language which we do not here need to interpret, and also contains a residuary clause with two blanks for names, the effect of which we need not here consider. It suffices upon these issues to say that the whole papei’, taken together, shows on its face that it was executed animo testandi; that the person who executed it did so intending to dispose of all her estate and to name her executor; and it was witnessed properly as a will conveying real estate. The contents and execution of the paper conclusively prove it to be in that sense a complete paper, — a testamentary disposition of property which should be admitted to probate. Whether the devises and bequests, or any of them, be invalid or in part ineffective, we may not upon these issues inquire. The formal paper contains the blanks where the names of the residuary beneficiaries should appear, but the omissions do not determine that the testatrix did not intend the paper, as it stood, to be her will. On the contrary, it is a complete and finished paper, executed and published animo testandi, without anything further to be done in order to perfect it. These omissions alone do not make it an invalid will. The judgment of the Court below must be affirmed, with costs, and it is so ordered.