Perkins v. Perkins

Bell, C. J.

The question presented by this case was considered by the Superior Court about twenty years since, in the case of Pettis v. Bingham, 10 N. H. 514; and so long as the decision then made stands unreversed, it is to be regarded as the law of this State. "We are not precluded, however, from reexamining such a question where serious doubts are entertained of the correctness of the decision, and the ingenious argument and extended examination of authorities by the counsel for the defendant would properly lead to such reexamination, if we entertained any doubt upon the point; — but that decision approves itself to our judgment.

The object of the proceeding is to prove the due execution of a written instrument. In most cases such proof is offered in order to the admission of the instrument in evidence, but in the case of the proof of a will, the evidence is offered to lay the foundation of a decree that the will has been proved, which may supersede the necessity of proving it again. The substance of the proof is the same in both cases. The instrument itself must be produced, unless, in a few excepted eases, where secondary evidence is admitted; and the attesting witnesses must be produced and examined, if they are living and within reach of the process of the court. They are to be produced by the party who offers the instrument in evidence, or who seeks a decree that it has been proved.

The witness usually testifies that he was present, and *168 saw the grantor sign, seal and deliver the instrument, or the like, and there, ordinarily, the proof closes. It is not required that the witness should he asked if the party was of sound mind, or that he was free from intoxication, duress, or any of the disabilities which invalidate the execution of a deed. The usual formal proof being offered, the law comes in with, its presumption that the party is sane, and free from disability; that the instrument was properly read, and the like ; and this presumption stands until evidence is offered tending to raise a different belief. Being presumptions of fact only, they are open to be repelled by proof of the contrary. Evidence being introduced, the issue is to be determined by the preponderance of the whole evidence, as in other cases, though the party offering the proof of execution continues to have the legal presumption of sanity and capacity in his favor till the end.

Though ordinarily no question need be asked of the witness who testifies to the execution of an instrument, relative to the capacity of the grantor, yet, owing to the nature of the proceedings in the case of wills, that the probate of the will is the foundation of the grant of power to the executor to take possession of the estate and the charge of administration, it is, in that case, the long settled practice of courts of probate to require that the witnesses to wills should be examined as to the fact of the sanity of the testator, before the will is established. Its object is, that if it appears that there is either doubt or suspicion on the question, that doubt may be removed before the estate is placed in the hands of a man who may prove to have no title to it. This practice is equally binding as the law in such cases, upon the Supreme Court, as on the ordinary courts of probate.

The attesting witnesses being produced and examined, it is not essential that they should sustain the legal presumption of sanity. They may all deny the sanity of a *169 testator, and yet, if the proof of a sound condition of mind is shown by the whole evidence, the will must be established. LeBulon v. Fletcher, 2 Hagg 558; Lowe v. Jolliffe, 1 W. Bl. 365; Austin v. Willis, Bull. N. P. 264; Pike v. Badmering, 2 Str. 1096; 1 Wms. Ex’rs 290, note; 2 Cow. & Hill, note 392; Butler v. Benson, 1 Barb. 533 ; Jauncey v. Thome, 2 Barb. Ch. 40 ; Whitaker v. Salisbury, 15 Pick. 544 ; Peebles v. Case, 2 Bradf. 226 ; Howard’s Will, 5 Mon. 199 .

That every man is presumed to be sane, is abundantly proved by the authorities cited for the appellant, to which may be added The People v. McCann, 16 N. Y. 58 ; McNaughten’s Case, 10 C. & F. 200; Dean v. Dean’s Heirs, 27 Vt. 746 ; Zimmerman v. Zimmerman, 23 Penn. St. 375; United States v. McGare, 1 Curt. C. C. 1; The People v. Robinson, 1 Parker C. R. 649; Shelf. on Lun. 36; Achy v. Stevens, 8 Ind. 411 ; Menkins v. Lightner, 18 Ill. 282 ; Hawkins v. Grimes, 13 B. Mon. 257 .

That the rule of law, requiring that the attesting witnesses to a will shall be examined in relation to the sanity of the testator, is not founded on the absence of a presumption that the testator is sane, nor on a necessity that the propounder of the will should offer further evidence of the fact of the testator’s sanity, is, we think, apparent from the state of the law as to cases, where, from their death, or absence from the jurisdiction, the witnesses cannot be produced, or where, from loss of recollection, they are unable to testify. As to these cases, it is held that proof of the hand-writing of the witnesses, and, in some jurisdictions, of the hand-writing of the testator, is competent proof to be submitted to the jury of the due execution of the. will. Hands v. James, 2 Comy. 530; Craft v. Powlett, 2 Str. 1109; Brice v. Smith, Willes 1; Roucliffe v. Parkyns, 6 Dow 202; 3 Phill. Ev., Appx., 451; Jackson v. Luquiere, 6 Cow. 224 ; Butler v. Benson, 1 Barb. 538 ; Scribner v. Crane, 2 Paige 149 ; Brinkerhoff v. Remsen, 8 *170 Paige 499 ; Chaffee v. Bap. Miss. Con., 10 Paine 91 ; Jauncey v. Thorn, 2 Barb. Ch. 40 ; Vernon v. Kirk, 30 Penn. St. 218; Verdin v. Verdin, 8 Rich. S. C. 38; Fry's Will, 2 R. I. 88; Sampson v. Bradley; 1 McCord 74 ; Pearson v. Wightman, 1 Rep. Con. Ct. 336.

In such cases there can of course be no examination of the witnesses as to the sanity of the testator, and it is no where laid down that the party is under any obligation to produce any other evidence upon that point, except the testimony of the attesting witnesses.

Prom the rule of law thus stated, we think that, although the subscribing witnesses, if they can be produced, must be examined in relation to the soundness of the testator’s mind, yet the party propounding a will for probate is under no general duty to offer any evidence of the testator’s sanity, but may safely rely upon the presumption of the law that all men are sane until some evidence to the contrary is offered.

If the attesting witnesses answer unfavorably or doubtfully upon this point, so that it may be doubtful whether a jury will not consider the evidence as outweighing the presumption, he puts at hazard his verdict, if he does not introduce fui’ther evidence.

If, as in the case where the attesting witnesses cannot be had, there is no evidence on the subject; or if the witnesses have no knowledge or no recollection upon the subject; or if their testimony on the whole does hot impeach the capacity of the testator; or if their unfavorable evidence is entirely overbalanced by other proof offered by the party setting up the will — the party opposing the probate is driven to the necessity of introducing evidence to disprove the fact of sanity, (or, as it is more usually expressed, to take upon himself the burden of proving the insanity; for there is no mode of disproving sanity but by proof of insanity;) when he has introduced such evidence sufficient to outweigh the proof of the adverse *171 party, if he offered any, or to outweigh the legal presumption, if he relies on that, the executor must take upon himself the task of proving the fact of sanity by disproving the alleged insanity.

It is, therefore, proper to say that the burden of proving the sanity of the testator, and all the other requirements of the law to make a valid will, is upon the party who asserts its validity. This burden remains upon him till the close of the trial, though he need introduce no proof upon this point until something appears to the contrary.

In some sense it is not improper to say that the burden of proving the insanity of the testator is on the party opposing the will. If he relies on that fact, he must, of course, lay evidence before the jury sufficient to outweigh the presumption of law and the proof on the other side, and to convince the jury, or he must have a verdict against him.

This question has been discussed elsewhere with much diligence and keenness, but it is, after all, a question merely verbal; a question of the propriety of certain forms of expression; for we apprehend that whatever may be the terms used, the course of practice is every where the same.

Judgment on the verdict.