Canada's Appeal from Probate

Pardee, J.

This is an appeal from the decision of a court of probate refusing probate of an instrument presented as the will of Erastus Canada, deceased. The jury having rendered a verdict for the appellees, the appellant filed a motion for a new trial.

Upon the trial the appellees, in support of their claim that the instrument was not legally executed as a will, offered evidence that Thomas Baldwin, whose name appeared on the instrument as a witness, was at the time when it was executed very much intoxicated; that the testator did not publish and declare the instrument to be his will; that Baldwin was not informed by any one that the paper was a will, and that he did not know that it was, but was wholly ignorant of its character. Upon the request of the appellees the court charged the jury that if Baldwin, from the effects of intoxication, or from any other cause, was ignorant of the nature and character of the instrument he was signing, and was not informed and did not know that it was intended as a will, but ignorantly put his name to it merely because he was told to *460 do so, without comprehending the nature and character of the transaction, the document was not legally executed as a will. To this charge the appellant took exception.

The statute (Gen. Statutes, p. 369, sec. 2,) requires a will to be “in writing, subscribed by the testator, and attested by three witnesses, all of them subscribing in his presence and in the presence of each other.”

The charge declares the law to be that the signature of a testator to a will is not duly attested unless at the time of attestation the attesting witness knows that the instrument is a will. This attributes too much meaning to the word “attestation;” more than has been given to it by courts which have been called upon to define it where used in similar statutes.

The English statute, prior to its modification by 1st Victoria, sec. 9, chap. 26, required wills to be attested and subscribed in the presence of the devisor by three or four witnesses. In Wyndham v. Chetwynd, 1 Burr., 421, Lord Mansfield said: “ Suppose the witnesses honest, how little need they know ? They do not know the contents; they need not be together;they need not see the testator sign; if he acknowledges his hand it is sufficient; they néed not know that it is a will.-” In Bond v. Seawell, 3 Burr., 1775, he had previously said that “it is not necessary that the testator should declare the instrument he executed to be his will.” In Wright v. Wright, 7 Bing., 457, the marginal note is as follows: “A will of lands subscribed by three witnesses in the presence and at the request of the testator is sufficiently attested although none of the witnesses saw the testator’s signature, and only one of them knew what the paper was.” To the same effect is White v. Trustees of the British Museum, 6 Bing., 310. Perhaps the principle attained to its highest development in Trimmer v. Jachson, a case in King’s Bench, reported in 4 Burn’s Eccl. Law, 3d ed., 102, in which the attestation was held sufficient although the devisor,'not content with withholding the truth from the witnesses concerning the contents or nature of the instrument executed, intentionally misled them by stating it to be a deed. A similar statute has *461 received the same interpretation in Massachusetts. Dewey v. Dewey, 1 Met., 349 ; Hogan v. Grosvenor, 10 Met., 54 ; Osborn v. Cook, 11 Cush., 532 ; Nickerson v. Buck, 12 Cush., 332 ; Tilden v. Tilden , 13 Gray, 110 . And we believe that the same principle has been recognized in other states where the statutory requirement is attestation only, with no suggestion as to publication.

The primary reason for the presence of the witness is not that he has known the testator long or intimately; not that he is required to use or have any skill in detecting the presence of insanity or other forms of mental disease or weakness ; not that he is to have any opportunity for discovering the fraudulent scheme which has culminated in the act of the testator. If the presence of one or three witnesses provides any degree of "security against the procurement of a will from a competent testator by fraud, or against the procurement of one from a testator without mental capacity, it is an incidental benefit; it was not in the mind of the law; that only intended that the witness should be able, with a great degree of certainty at all times, possibly at a great length of time after his attestation, to testify that the testator put his name upon the identical piece of paper upon which he placed his own. He identifies the paper by the conjunction of the two signatures, not the character of the contents; only the paper, whatever the contents may prove to be.

The appellees, claiming that the will was the product of fraud practiced and undue influence brought to bear upon the testator by the appellant, Harlan Canada, his son and sole legatee named therein, introduced as a witness Lester Bill, who had been named as executor in a previous will executed by the testator on February 8th, 1878, which will would become operative upon the non-approval of the one in question. He testified that four days prior to the execution of the last will the appellant endeavored to induce the testator to order him, Bill, then present with the first will, to return it to him, the testator, and that the testator refused so to do and directed Bill to” retain it. He also testified that on June 13th, 1879, being about a month subsequent to the execution *462 of the last will, the testator, in a conversation with him concerning the provisions of the first one, said that he did not know bnt that they had been putting something upon the records against him and requested the witness to examine the town records; and that the testator then told him that he had become surety for the appellant upon a note which he feared remained unpaid and would be presented and allowed as a claim against his estate; that if so presented and allowed he feared that the will of February, 1878, was not so drawn as to deduct the amount from the appellant’s share; and that he requested the witness to inquire concerning the nofe. The witness testified that upon inquiry he found the note unpaid and so informed the testator. He also testified that on June 16th, 1879, after a discussion between himself and the testator as to the construction to be put upon the first will so far forth as the note was concerned, the testator instructed .him to prepare a codicil, and that he did prepare one which failed of execution by reason of the feebleness of the testator. The witness also testified that four days later, on the day of the testator’s death, he informed the latter that his pension papers had come; that the testator replied to him—“ They will do me no good now; you will have to settle my estate;” and informed the witness where he would find his, the testator’s, bank book and valuable papers.

The appellant objected to the admission of these declarations of the testator. The court received them solely for the purpose of showing the condition of his mind and the state of feeling existing between himself and the appellant, and so restricted the evidence in the charge to the jury.

Of course the declaration that he did not “ know but they had been putting something upon the records against him,” and the request of the witness that lie should examine the town records, are not to be considered unless it is proven that the appellant is one of the persons therein referred to.

One of the admitted declarations was made four days prior, the others within forty days subsequent to the execution of the last will, the one in question. If the jury believe that in the first he expressed a desire that the first will should con *463 tinue a living instrument and become operative at his death, and in the others repeated both a belief that it would and a desire that it should be so, with accompanying suggestions as, to the necessity of a codicil thereto, that it might speak his mind with precision; or that he expressed a belief that by virtue of an appointment therein the witness would be the executor upon his estate, and as such pointed him to his bank book and other valuable papers; or that he manifested a degree of anxiety lest his estate should be made to pay the endorsed note, and the appellant thereby obtain a larger share thereof than he desired him to have; or that in the matter of the town records he gave evidence of a degree of distrust or dislike towards him—they may be led to infer that the testator had not knowingly put his name to an instrument which would utterly destroy the one to which he was striving to make an addition; or that he had not knowingly given the whole to a devisee whom he was striving to limit to a part; or that it is improbable that, in behalf of the appellant, he had knowingly excluded grandchildren and other claimants upon his bounty from any share in his estate.

In determining the question as to the mental capacity of a testator at the time of executing a will the law admits proof of his words and acts prior and subsequent to that point of time. Presumably the mind neither passes from light into darkness nor emerges from darkness into light instantly; presumably neither capacity nor incapacity is the condition of a moment only. The acts and words at and nearest to the time of execution may have the greater weight as evidence; diminishing in weight as time lengthens in each direction; the jury to determine when they cease to have any. The same rule obtains in determining the question as to like or dislike. There is no error in the reception and application of the declarations.

The appellees offered evidence tending to prove, and claimed to have proved, that on sundry occasions the testator made declarations to the effect that he had loaned money to the amount of $6,000 to the appellant; that the latter had turned him out of doors, and had compelled him to sleep in *464 outbuildings; that he had refused to assist him in the care of his cattle in severe winter weather, he, the testator, being more than ninety years of age; and that he had in various other ways treated him unkindly. The court rejected evidence offered by the appellant for the purpose of proving that the declarations were false.

The court received and applied this evidence in part for the purpose of proving the testator’s feelings towards Ms son. Of course, for this purpose they must be assumed tó be the declarations of a person in possession of all his mental faculties. This being so, proof that they were false was proof that the testator knew them to be so when he uttered them; and to whatever motive the jury might attribute them, they would very properly fail to find that back of the spoken falsehood there was really existing in the heart of the testator that degree of hatred towards the son which the wrongs and insults, actually suffered, would have engendered. As the appellees left the testimony the words went to the jury with the point and sting of truth. We think the appellant had the right to show that they were words only, intentionally false, and represented no more certainly than hatred of a slight degree—the question being simply as to like or dislike upon the part of the father.

Moreover, in another aspect, it was the right of the appellant to prove that the testator did not make the declarations; and if he proves that he did not borrow the money, never turned Ms father out of doors, and never refused him assistance, he has done much to render it improbable that the father said what is imputed to him. Presumably a sane father will not falsely charge such conduct upon a son.

The appellees offered in evidence the files and record of a bill in chancery brought by the testator against the appellant and Ms wife in 1872. The testator signed the petition with Ms own hand; in it he alleged that the appellant had procured from the testator a deed of certain real estate in favor of Ms, the appellant’s, wife at a time when he, the testator, was sick and unable to transact business, the appellant deceitfully and fraudulently representing to the testator that he was executing *465 a will. The record showed that the court found this allegation to be true and passed a decree in favor of the testator. The petition and decree were offered and received for the purpose of showing that there had been litigation between the parties and the feelings of the testator towards the appellant, and not for the purpose of proving the truth of the allegations, nor for the purpose of proving that the court found them to be true. The petition was read to the jury; the finding and decree of the court were not read, although formally laid in as evidence for the purpose stated. The court stated to the counsel and instructed the jury that the record was not received for the purpose of proving the truth of the charges contained in the petition, and that neither the finding nor decree were in this cause evidence proving or tending to prove that the appellant procured the deed by fraud. Thus limited, the appellant has no occasion for objection to the reception of the record.

A new trial is advised.

In this opinion the other judges concurred.