Egbert v. Egbert

1. The signature of a subscribing witness to an ordinary instrument implies only that it was signed by the party purporting to have signed it; but subscribing as a witness to a will is an assertion that the testator was of sound mind when he executed it. 2. The condition of the testator’s mind at the time of executing the will is part of the res gestae. 3. On the trial of an issue devisavit vel non, it is competent for the defendant to cross-examine a subscribing witness as to the condition of the testator’s mind at the time the paper was executed. 4. All occurring at the execution of a will, including the testator’s mental and physical condition, is proper for cross-examination. 5. The presumption is in favor of sanity, and the burden of proving unsoundness in a testator is upon the party impeaching the will.

Error to the Court of Common Pleas of Montgomery county: No. 28, to July Term 1874. This was a feigned issue, made up August 23d 1873, to try the validity of a paper writing purporting to be the last will of David N. Egbert. George T. Egbert and Horace P. Egbert were plaintiffs, and Hamilton Egbert and William Davis were defendants. The case was tried March 2d 1874, before Ross, P. J. For the plaintiffs John Baltz, one of the subscribing witnesses, testified : that he saw the testator “ put his name to it as his will.” Witness further testified, on cross-examination, as to the circumstances, &c., under which the will was executed. The defendants then proposed to ask witness, on cross-examination, a number of questions, for the purpose of showing testator’s condition of mind ; these were objected to by the plaintiffs, rejected by the court and several bills of exceptions sealed. The questions appear in the specifications of error given hereafter. The other subscribing witness testified that the testator signed the will; the will was read in evidence. The court charged:— “ This ease, in consequence of the action of the defendants, has resolved itself into very harrow limits. Under the testimony the only question which is open for your consideration is, whether the alleged testator executed the paper writing, as to which this issue was framed, as and for his last will and testament. If you believe the testimony, he was a man of full age, and when one of full age executes a testamentary paper, in accordance with the statutory requisites, he is presumed to have been, at the time of its execution, of sound mind and memory, and uncontrolled by undue influence. [It rests upon those who dispute an alleged will upon these grounds, to establish their existence either by direct proof or by facts which tend to prove unsoundness of mind, or a mind unduly influenced, in the act of testation. I charge you, therefore, that if you believe, from the evidence, that this alleged testator was of full age and that he executed this paper writing as and for his last will and testament, in the manner described by the witnesses, the law, in the absence of proof to the contrary, presumes he was of sound, disposing mind and memory, and not controlled by undue influence.] ” The verdict was for the plaintiffs. The "defendants took a writ of error, and assigned for error that the court rejected the following questions:— 1. Have not some of the legatees under this will said to you that if the will is set aside you will lose your property, or words to that effect ? 2. Was David N. Egbert of unsound mind at any time before this will was executed ? 3. What was the condition of the mind of David N. Egbert, the alleged testator, as to soundness or unsoundness, at the time he signed this paper ? 4. Did you not know at the time David N. Egbert signed this paper, and you witnessed it, that he was not of sound mind ? 5. Did you not say more than once before Mr. Egbert signed this paper that he was crazy ? 6. Before you signed this paper as a witness did not Mr. Egbert ask you to bring your scythe and mow in his yard, saying that his knee caps had dropped off, and he wanted to look for them, or words to that effect ? 7. Before you signed this will as a witness did you not several times say in the presence of Samuel Metzter, that David N. Egbert was crazy and out of his head? 8. Did you not say to Samuel Metzter or in his presence, before this will was signed, that David N. Egbert was crazy, that he bad had eight poles cut to throw the church over, and had appointed eight men to do it, and that you were one of those eight men ? They assigned for error also the part of the charge in brackets.