Harvey v. Anderson

By the Court.

Warner, J.

delivering the opinion.

[1.] The plaintiffs in error insist that the Court below erred in granting a new tria? in this case. First, on the ground that the testimony of John M. Barksdale, was improperly admitted. Second, on the ground that the admissions of Anderson, who was the propounder of the will, the executor thereof, and legatee *74 under it, were improperly admitted in evidence to the Jury at the trial; and third, that conceding there was error in the admission of the evidence specified in the first and second grounds taken for a new7 trial, still the verdict was right under the law, for the reason, that the will was not sufficiently proved, the testatrix being of doubtful capacity at the time the will w7as executed, which was written by Anderson, who takes a beneficial interest under it, and who was her confidential friend, agent, and family physician. Does the record show that John M. Barksdale, whose testimony was received at the trial, on the part of the caveators, was so directly interested in the event of the suit, as to render his testimony inadmissible? In our judgment, he was not such an interested witness, in the event of that suit, as would exclude him; and therefore, the Court erred in granting a new trial on that ground. The witness wras a legatee under the will of the testatrix, which his testimony was offered to set aside; but the argument is, that he was also a legatee under a prior will of the testatrix to a much larger amount, and that the direct effect of his evidence would be, to set up the old will, and confirm his legacy under that. On the trial, a paper was exhibited, purporting to be a prior will of the testatrix, dated in 1848, but without any month or day specified, her signature to which was admitted to be genuine. The judgment in this case, would not be evidence for the witness, or others claiming under the old will, in an attempt to set up and establish that old will. Each instrument is wholly independent of the other in that respect, and must stand or fall, by independent evidence. The record in this case will be evidence that a judgment wras rendered against the validity of the paper now propounded as the will of the testatrix ; but that record will afford no evidence whatever as to the validity of the old will, nor can the same be received in evidence to establish that fact, in favor of the witness.

It is to be recollected, that the interest of the witness in any legacy, to which he might be entitled under (he instrument purporting to be the old will, does not become certain and fixed, until that instrument shall be established and admitted to probate, as the last will and testament of the testatrix; non constat, *75 that there is not an intermediate will, or that the testatrix, from want of capacity, or other cause, died intestate. The interest of the^ witness is not therefore direct, and immediate in the event of this suit; neither will he gain any thing, by the direct legal operation of the judgment vacating the will in _ question, under which he takes a legacy ; but on the contrary sustains a direct loss, to the extent of his legacy, under it. The testimony of this witness was admissible, according to the rule established by this Court, in Adams vs. Barrett, 3 Kelly, 277 , and in Matthews vs. Poythress, 4 Geo. R. 297. The objection went to his credit, and not to his competency.

Were the admissions of Anderson, who was the propounder of the paper offered for probate, the nominated executor therein, and legatee under the same, competent evidence for the consideration of the Jury at the trial ? The general rule is, that the declarations of a party to the record, or of one identified in interest with him, are, as against such party, admissible in evidence ; and this general rule admitting the declarations of a party to the record in evidence, applies to all cases where the party has any interest in the suit, whether others are joint parties on the same side with him, or not, and howsoever that interest may appear, and whatever may be its relative amount. 1 Greenleafs Ev. sections 171, 172. Spargo vs. Brown, 17 Eng. Com. Law Rep. 526. The argument against the admission of this testimony is, that it will have the effect to enable a party to the record, who has a small legacy under a will, by fraud and corruption to make admissions which may destroy other legacies under it, ten times greater than his own. However true this abstract proposition might be, when applied to such a case as is supposed, it is a sufficient answer to say, that no such a state of facts is presented by this record. The facts of this case are such as required a practical application of the general rule of evidence. The party to the record in this case was not a mere naked trustee, without any interest in the subject-matter of the litigation; but on the contrary, was deeply interested in it. In fact, the main ground of attack made on the instrument offered for probate, is on account of the manner which it was procured by *76 him from the testatrix. He was interested to sustain the fairness of the transaction in procuring the instrument, not only on account of the legacy which he would receive under it, as well as the commissions to which he would be entitled as the nominated executor of this large estate, but on account of what should be considered a much higher motive, his character as a man in the community in which he lived.

Although the other legatees, under the paper offered for probate, might have a larger interest under it than the propounder of it, who is a party to the record, seeking to establish it, not only for his own benefit, but for theirs also — still they are identified in interest with him, and the general rule of evidence is applicable, both to him and them.

In Davis vs. Calvert et al. (5 Gill, and Johns. Rep. 269,) it was held that declarations adverse to the will, made by the executor, who was a party to the record, and a contingent devisee representing every interest under the will, were competent evidence to go to the Jury on the trial of a caveat to the will. This case appears to have been well considered by the Court, and is directly upon the point. The Court below, on the trial of this cause, took the true and legal view of these questions, when it admitted the evidence; but erred in reversing its own judgment, and granting the new trial, on the ground of its improper admission.

[2.] In relation to the third position taken against the granting of a new trial in this case, by the counsel for the plaintiff in error, and which was so elaborately and satisfactorily argued by them, we have to say, that had we found it necessary to have affirmed the judgment of the Court below, on the two first grounds taken; yet, we should not have been disposed to have disturbed the verdict of the Jury even then, on the facts presented by this record. The rule of law undoubtedly is, that whenever the capacity of the testator, or testatrix, at the time of the execution of the will, is in any degree doubtful, there must be proof of instructions given, or of reading it over; the more especially, when the will is drawn by one who takes a beneficial interest under it.

In Billinghurst vs. Vickers, (1 English Ecclesiastical Rep. 70,) *77 Sir John Nicholl held, that it was an established principle, that where capacity is doubtful at the time of execution, there must be proof of instructions, or of reading over. Tompkins vs. Tompkins, 1 Bailey’s Rep. 92. Sankey vs. Lilly, 6 Ecclesiastical Rep. 350. In Beall vs. Mann, (5 Geo. Rep. 456,) this Court held that the presumption is strong against a party preparing a will, who takes a benefit under it, and although it will not be declared void on that account, strong evidence of intention in such a case will be required. The capacity of the testator in that case, was not shown to have been doubtful, by the evidence at the trial. In this case, there is much conflict of evidence as to the capacity of the testatrix, and we should have had great difficulty in coming to the conclusion that there is sufficient evidence in the record to establish the paper propounded as her last will and testament. Let the judgment of the Court below, granting a new trial, be reversed.