Frew v. Clarke

1. The following paper was held to he testamentary: u Know all men by these presents, that I, James McCully * * * do order and direct my administrators or executors, in case of my death, to pay to Robert I). Clarke, the sum of $75,000, as a token of my regard for him and to commemorate the long friendship existing between us. Witness my hand and seal this 17th day of April a. d. 1872, James McCully [seal].” 2. An instrument in any form, if the obvious purpose is not to take place till after the death of the person making it, operates as a will. 3. In an issue devisamt vel non, Clarke was a competent witness, under the Act of April 15th 1869, to prove the execution of the paper. 4. Clarke testified that he saw McCully sign the paper; many other witnesses testified that in their opinion the signature was McCulIy’s: Held, sufficiently proved under the Wills Act, April 8th 1833, sect._6. 5. After such proof the burden of proving fraud or imposition was upon the person alleging it. 6. If McCully signed the instrument, the presumption was that he did so voluntarily and with full knowledge of its contents. 7. As relevant to the question of imposition, evidence might be given by the plaintiff that the decedent was worth $1,500,000, had neither wife nor child and that his relations with plaintiff were intimate. 8. When a witness is called to prove a signature from his knowledge of the signer’s writing, the better rule is that he should be cross-examined as to his means of knowledge before testifying to the genuineness of the signature. 9. Bowen v. Goranflo, 23 P. F. Smith 357, adhered to; Boyd v. Boyd, 16 P. F. Smith 283, distinguished.

Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1875. This was a feigned issue under a precept directed by the Register of Wills of Allegheny county to the Court of Common Pleas, to try whether a certain paper presented to him for probate, was the will of James McCully, deceased. The precept was filed in the Common Pleas, April 6th 1874, and the issue was framed with Robert D. Clarke as plaintiff and William Erew and others, heirs and next of kin of James McCully, defendants. The decedent died March 26th 1878, having been killed by the overturning of a carriage in which he was riding. He left collateral relatives only. The following is the paper :— “Know all men by these presents, that I, James McCully, of Pittsburg, Pa., do hereby order and direct my administrators or executors, in case of my death, to pay Robert D. Clarke the sum of $75,000, as a token of my regard for him, and to commemorate the long friendship existing between us. “ Witness my hand and seal this 17th day of April, A. D. 1872. James McCully. [l. s.]” “$75,000. The issue was tried April 19th 1875,- before Stowe, J. For the plaintiff J. F. McEnulty testified:— That he was teller in the American Bank ; that McCully did business at that bank ; that witness had seen him write and was acquainted with his handwriting. The paper in controversy was then shown to the witness and plaintiff proposed to ask him “ Whether in his opinion this signature, ‘James McCully,’ is or is not the signature of McCully, from his (the witness’) knowledge of _ his handwriting.” Defendants objected for the reason that the defendants claim to cross-examine the witness as to the means of his knowledge, when acquired, how long he has been acquainted with the handwriting of James McCully, and this for the purpose of having the court pass upon the question as to the knowledge that the witness has upon the question in relation to which he is about to give an opinion. The objection was overruled and a bill of exceptions sealed for defendants. Witness was then asked, from his knowledge of James MeCully’s handwriting, to state whether or not that is his, in witness’ opinion ? He answered, “Well, I believe it is.” On cross-examination witness said, that he had seen decedent signing his name in a dividend book at the American Bank two or three times ; he never saw him write anything but his name ; besides this, witness had handled his checks ; he could not say that his opinion was founded on seeing him write just those three times ; he believed he would be able to say it was decedent’s signature from those three times; seeing any waiting three times, he believed he could say of any signature whether it was genuine or not; decedent had paid the checks that witness handled at the bank. . The plaintiff was then offered to testify. The .defendants objected to his competency on the ground that he was the plaintiff and a party in interest. The court admitted him to testify and sealed a bill of exceptions for the defendants. He then testified that he saw the decedent sign the paper on the day of its date, about nine or ten o’clock in the morning. On cross-examination he said that the body of the paper was in his own writing ; he made the seal on the paper ; it was signed in the Diamond Savings Bank ; there were clerks in the bank when it was signed ; witness had gone by appointment to meet decedent that morning to sign the paper; the appointment had been made three days before ; he gave the paper to decedent that morning to read, and decedent read it. Witness had copied the paper from one furnished him which had been prepared under legal advice; at the time the paper from -which he copied was prepared, he was advised by counsel that it would operate as a will; decedent was about seventy-one years old when he signed the paper; the paper had been in plaintiff’s possession from that time up to the time it was presented to the register for the probate. The plaintiff then offered the paper in evidence. Defendants objected to the offer for the following reasons :— 1. The said paper being in the handwriting of Robert D. Clarke, who is the plaintiff and sole legatee and only person alleged to have seen James McCully sign his name thereto, the same has not been proved as required by law, by the oaths of two witnesses. 2. The said paper being under seal, and delivered to the plaintiff by James McCully when signed by him, the same was by reason of said delivery irrevocable and is not in law a testamentary paper. 3. The said paper is not on its face, as matter of law, more than an attempt to make a gift and is invalid. 4. The evidence shows that it is in law an imperfect paper, and the burden is upon the plaintiff to show by clear and convincing evidence that James McCully intended it to operate as a testamentary paper, and all the facts connected with it, the plaintiff must show affirmatively before giving it in evidence. The objections were overruled and a bill of exceptions sealed for the defendants. The paper was read to the jury and the plaintiff rested. For defendants, Robert Woods, Esq., testified, that he had for a long time been counsel for McCully, had seen him sign very many papers and knew his signature well; in the opinion of witness the signature to the paper was not decedent’s. A number of witnesses testified, that in their opinion the signature to the paper was not that of the decedent. There was evidence also that the decedent frequently before, signing an instrument wrote his name on other pieces of paper and let them lie about without destroying them ; there was some evidence also that the faculties of decedent were not as bright as they had been formerly ; that the plaintiff was not a relation to him and was not particularly intimate with him ; and that decedent was under no obligation to plaintiff. In rebuttal a large number of witnesses testified that in their judgment the signature to the paper was in the handwriting of the decedent. The plaintiff testified, that he resided in Pittsburg; that decedent took much interest in plaintiff’s business and had for a number of years endorsed notes to a large amount for his accommodation. Four or five months before the date of the paper, the plaintiff and decedent casually met; decedent inquired how he was getting on with his business, and voluntarily said that he was getting old and could not live long; that he was on a good deal of plaintiff’s paper and wished to make such provision for plaintiff that in case of decedent’s death plaintiff would not need to have another endorser. About a month afterwards at another interview decedent asked plaintiff if he “had got that paper ready,” plaintiff said he did not understand about getting any paper ready ; and said he would get one ready ; decedent at that time repeated the conversation they had previously had. Plaintiff went to Edgar Cowan, Esq., at Greensburg, Westmoreland county; Mr. Cowan had been his counsel previously; plaintiff told him his conversation with decedent; after he had so done, Mr. Cowan prepared a paper for him, the one propounded for probate being copied from it, except the amount; a few days afterwards he saw decedent, who again referred to the matter ; he showed him the paper drawn by Mr. Cowan, which had the names cut out for fear he might lose it and the names be exposed ; decedent told him to have it ready on the succeeding Wednesday, four days afterwards, and told witness to put in $75,000. On the Wednesday appointed they met; decedent read it, signed it, and handed it to plaintiff. Plaintiff proposed to show the value of the estate left by James McCully, and that the estate at the time of his death, was of the value of about a million and a half of dollars, the purpose of the offer being to rebut the allegations of fraud and imposition practised upon Mr. McCully in the matter of the testamentary paper in controversy, and for the purpose of showing the relation that the testamentary gift to Robert I). Clarke bears to his entire estate. This was objected to by defendants as incompetent and irrelevant. The objection was overruled and a bill of exceptions sealed for defendants. There was evidence that the decedent was a shrewd man, that his health and mind had been sound till the time of the accident; that he was a man of strong attachments and dislikes. There was very much additional evidence on each side; relating principally to the questions of fraud and imposition on the decedent in the execution of the paper. The following are points of the plaintiff with their answers :— 1. The writing of April 17th 1872, in controversy in this case, is a testamentary writing. 2. Subscribing witnesses to a testamentary writing are not necessary to its validity. These points were affirmed. 4. There is no evidence in this case to warrant the jury in finding that the signature of James McCully to the paper in controversy was procured by fraud or imposition; and there is no evidence in the case of want of testamentary capacity in James Mc-Cully. Answer: “ This point is double and involves two distinct propositions. The first is refused. The second is affirmed.” The defendants’ fourth point and its answer were :— It being shown by the evidence clearly, and not controverted by the defendants, that the body of the alleged testamentary paper is in the handwriting of the plaintiff; that he was not related by blood to James McCully ; that it is without subscribing witnesses ; that he is the sole person to be benefited thereby; that it was produced by the plaintiff after Mr.Cully’s death, and that no witnesses other than the said plaintiff are claimed to have seen said McCully sign said paper, Such admitted facts raise a strong legal presumption against the genuineness of the signature of James McCully to said paper, arid that the alleged testamentary paper was not the voluntary act of said McCully, it lies upon the plaintiff to show by clear and satisfactory evidence that the said James McCully signed said paper, and at the time of so doing had knowledge of its contents, and intended it to be valid' and operative as a will. Answer: “ This point is refused as it stands. The facts alleged do not raise a strong legal presumption, nor any legal presumption against the genuineness of the instrument in suit, but they do present such a case as is calculated to excite suspicion, and makes it the duty of the jury to be vigilant and careful in examining the evidence in support of the genuineness of the instrument. “ Where a party writes or prepares a will under which he takes a benefit, that is a circumstance which ought generally, arid in connection with the other facts stated in this point, in this case, undoubtedly calls upon the jury to be vigilant and jealous in examining the evidence in support of this paper. This, however, is a mere circumstance of suspicion demanding vigilant care and circumspection in investigating the case, so that they may not recognise the instrument as the will of James McCully, without the same has been fairly and satisfactorily established by the evidence.” The court charged:— [“ The first question that arises in this case is : is the signature to this paper the actual writing of James McCully ? Did he write the name James McCully on this paper, or did some one else write it ? Upon this question the burden of proof is upon the plaintiff. That is to say — the plaintiff must satisfy you that such is the case. Otherwise he cannot recover in this suit. No will is valid in Pennsylvania (except in certain cases of which it is not pretended this is one), unless in writing, signed at the end thereof and proved by at least two witnesses. It is not necessary, as we have already stated to you, that those two or more witnesses should have seen the deceased write his name or heard him acknowledge that he had written it. It may be proven by parties who are able to swear that the signature is in their opinion the genuine writing of the testator, as has been done in this case.] u It is urged, however, by counsel for plaintiff, that he having called two witnesses (the plaintiff, who says he saw McCully write the name, and another who swears that in his opinion the signature is genuine), who have testified to the signature as that of James McCully, this alone makes out a primá facie case, which casts the burden of proof to the contrary on the defendants and makes it their duty to overcome it by their testimony, otherwise it is your duty to find in favor of the validity of the paper in question. “ This we do not recognise as law. It is true that the evidence of those two witnesses made a case under which it was our duty to submit the alleged will to the jury, and under which, if the defendants had offered no proof, the jury should find for plaintiff in this action. But where the defendants, as they did here, offer evidence tending to show that the signature is not genuine, and rebutting the allegations of plaintiff upon that question, the cause goes to the jury upon all the evidence submitted to it, and it is incumbent upon the plaintiff, under all the evidence upon the genuineness of the signature, to satisfy you reasonably and fairly that the signature is genuine. “ The burden of the proof as to this, is upon the plaintiff from first to last, and if he has failed thus to satisfy you under all the evidence, your verdict should be for the defendants. [“ But in case you should be satisfied that James McCully did actually sign his name to the paper set up here as his will, then the rule changes and the burden of proof is cast upon the defendants, and it is their duty to satisfy you that fraud or imposition was practised upon McCully, and that he signed the paper in ignorance of its contents, or that somebody wrote the body of the instrument above the name of McCully without his knowledge and consent. “ The law will not presume this. Indeed the law under this state of facts presumes the other way, in favor of honesty and fair dealing, where an instrument, deed or will, is shown to have been signed by a person, and no other proof is adduced. The law presumes without more, that it was signed voluntarily and with knowledge of its contents. And so where a paper bears no sufficient evidence of fraud upon its face, but presents just such an appearance as it would naturally have, if everything were done just as it is alleged by a party that it was done, and the fact of the signature being genuine is established, the legal presumption of the genuineness and validity of the whole paper as set out arises, and before a jury can properly find the other way the evidence in the cause must fairly lead it to that conclusion, and if it fails to do so, their verdict should be in favor of the validity of the instrument. “ To conclude, then, the first question is, did James McCully actually write the name James McCully on the paper which is now claimed to be his will ? “ As to this, the law casts the b„urden of proof upon the plaintiff, who must satisfy the conscience of the jury that such is the fact under all the evidence in the case. “ If you are not fairly satisfied as to this, then your verdict should be for defendants, but if you are, the question arises, did James McCully sign the paper after it was written out in ignorance of its contents, or was the instrument written over the signature of McCully by some one without his knowledge or consent, as alleged by defendants ? “ Upon the second question the law requires the defendants to adduce evidence which shall fairly satisfy you that their allegations in this respect are true, otherwise your verdict should be for plaintiff.”] The verdict was for the plaintiff. The defendants took a writ of error: they assigned twenty errors. I, 2. The admission of J. McEnulty to testify as to decedent’s signature without permitting defendants first to cross-examine him as to his means of knowledge. 8. Allowing Clarke the plaintiff to testify. 5. Admitting the paper in dispute in evidence. 10. Admitting evidence of the value of decedent’s estate. 13, 14, 16. The answers to the plaintiff’s first, second and third points. 17. The answer to the defendants’ point. 18, 19. The parts of the charge in brackets. 20. Submitting to the jury to find whether, under all the evidence, Mr. McCully executed the paper in suit as a testamentary paper, there being in law no sufficient proof of it as required by the Wills Act of 1833, and no sufficient evidence upon which the jury could find for the plaintiff.