Yardley v. Cuthbertson , 108 Pa. 395 ( 1885 )

Mr. Justice Green

delivered the opinion of the court, October 15th, 1885.

The first assignment of error relates to the form of the issue. The precept from the Orphans’ Court directed an issue to be-formed to determine- — ■

“First. Whether the said certain writing dated December 2d, a. d. 1876, is a codicil to the will of said John L. Neill deceased.

Second. Whether at the time of the maldng of said alleged codicil the said John L. Neill was of sound disposing mind, memory and understanding.

Third. Whether the alleged codicil was produced by undue influence, fraud, imposition or duress.”

Under this order pleadings were filed consisting of a narr. with three counts, each one charging a conversation and a wager upon one of the three foregoing several matters covered by the precept, a plea denying each of the assertions contained in the narr. and tendering issue upon all, and a similiter joining issue as to all. The executors were made plaintiffs in the issue and certain of the legatees whose legacies were changed by the codidil were made defendants. It is the executors who object to.the form of the issue and not-the legatees. They do not complain that they were made parties and plaintiffs, nor do they indicate how they were harmed by the character of the pleading. They contend that the pleadings should have been so framed that the defendants should have alleged the undue influence as a defence, and thus relieved the plaintiffs from the necessity of alleging and proving a negative, and they also argue that the question whether the paper in controversy was a codicil. is a mixed question of law and fact, which should not have been left to a jury. Whatever might' be our views abstractly upon these matter, it would not be proper for us to reverse the case on these grounds, because the original petition in the Orphans’ Court prayed for an issue in this very form, and that court having refused the issue, We reversed the decree and directed “ that the issue prayed for in the court below be granted.” Having done this the court below declined to change the form of the issue which the Orphans’ Court, in obedience to our order had sent -over to the Common Pleas for trial, and it would certainly not be correct for us now to reverse the Common Pleas for doing precisely what we directed to be done by the Orphans’ Court. In Dotts v. Fetzer, 9 Barr, 88, we said, “ It is the business of the court which awards a feigned issue, to name the parties to it and prescribe the form of it; and as this was done by the Register’s Court, the Common Pleas had no power to dispute it.” When the case was first before us (1 Out., 163,) on appeal from the Orphans’ Court, no question was raised as to the form of the issue, and our attention was not called to the subject. Even if we would have made a different order, had the matter been discussed' before us, yet as we did in fact make the order awarding the very issue which has been-tried, and the parties have rrpon the faith of it incurred the very great expense and trouble involved in so protracted a trial, we could not with any propriety reverse the proceedings and order another trial upon such a ground. Application was made to us, after the second decision of the Orphans’ Court in which the issue was ordered, asking us to change the issue but we declined to entertain it.

But if the question were an open one, so long as the executors are plaintiffs in the issue it is difficult to see how they are injured by the form adopted in this case. It is in substance the issue devisavit vel non which has almost universally prevailed in this Commonwealth during the whole period of our jurisprudence. That kind of issue is founded upon the idea that the executors assert and uphold the will, and that it is their business to establish it if it is questioned, and, being charged with this duty, they should be made parties and plaintiffs in the contest. We have never yet formally decided that an issue devisavit vel non is illegal, and in view of the long continued and unquestioned practice regarding them we could not do so now. We are, however, of opinion that they are altogether erroneous and ought to be abrogated. They are in our judgment contrary to the principles of pleading and not warranted by the law which authorizes them when they emanate from the Register’s Court formerly, or .the Orphans’ Court now. That law, Act of 15th. March, 1832, § 41, Purd. Dig., 1256, pi., 22, permits only the granting of issues to try disputed questions of fact. We have many times held that issues for such purposes must designate specific facts, and mere consistency requires that we should adhere to the same rule when the disputed facts affect the validity of a will. 'We deny to executors the right to employ and pay counsel out of the estate iii their hands for the trial of such issues, and yet we sustain their right to be parties to them. The issue devisavit vel non is not an issue to try any fact. The question is one of mixed law and fact, proper only to be determined by a. court after the pure facts have all been found. It belonged to the Register’s Court formerly and the Orphans’ Court now, after the certificate from the Common Pleas has come back showing how the .disputed facts have been found. The law presumes sanity and freedom from undue influence as to all wills, and that presumption prevails until the contrary is alleged and proven. He who makes such allegations must prove them, and therefore the real burden of proof is on him. Strictly, therefore, he should be the plaintiff in the issue. As the executors, as such, have no interest in the estate to be distributed, they have no business in the issue and ought not to be parties to it. The parties actually interested in sustaining the will ought to be defendants in the issue. With the contestant as plaintiff and the legatees as defendants and an issue to try specific disputed facts only, a properly constituted litigation will be established consistent in, and with, itself, conforming to the rules of pleading and evidence, in proper subservience to the statute under sanction, and by force of which it is conducted, and in all tilings satisfactory to the requirements of the legal and judicial mind. These views, however, are obiter dicta only, the question is not distinctly before us, and they are expressed because the occasion has suggested them, and in order that the attention of the profession may be attracted to the subject. In some parts of the state the issues in will cases have been framed and tried in the manner here suggested for many years and with entire satisfaction to the bench and bar as we understand. We said in Bitner v. Bitner, 15 P. F. S., 347: ‘‘ The looseness with which feigned issues are so often formed is* a source of frequent regret, winch we had occasion to notice last year ini a case from Lu zerne County. This case is another instance. The only issue presented by the pleadings is whether the writing was the last will and testament of Christian Bitner. But this presented no issue of fact. It might not have been his last will for various reasons of law and fact, as want of due execution, revocation, duress, insanity, &c. Such an issue withdraws the will from the exclusive jurisdiction of the Register, or Register’s Court, and commits it to the Common Pleas,- which has no jurisdiction except to try issues of fact only sent to it for a trial by jury.” But these remarks also were obiter dicta only, as no assignment of error raised the question, and the form of the issue was not before us. It is satisfactory to notice that in framing the issue in the present case some progress is made in the right direction. It does distinctly set forth two specific facts upon which issue is joined and the cause tried. It is to be hoped the time may yet come when these issues Avill be. ordered, framed and tried upon sound principles of pleading, and in accordance with the numerous decisions xof this court, which determine the character of issues in other cases.

The objection that this issue required the plaintiffs to prove a negative in respect of the allegation of undue influence Avould not be serious if it were well taken, but it is not well* taken. In substance it is an allegation that the codicil was made by the testator of his OAvn free will and is no more negative in tits character than the averment of sanity. The anomaly comes from making the wrong persons plaintiffs. If the plaintiffs are the persons who contest the codicil they, properly and affirmatively, allege insanity and undue influence and must prove whatever they allege. But if the persons who support the codicil are made plaintiffs and undertake to describe the issues, they do so by two affirmative allegations of sanity and free will, or two negative ones denying insanity and denying undue influence.' In this respect the two averments are essentially alike. The first assignment of error is not sustained.

Second, third and fourth assignments. — There is a slight difference between the first of these three questions and the other two. But it is a difference apparent only and not real. The last two of the questions, covered by the third and fourth assignments, expressly assume the -truth of the facts upon Avhich the expert opinion is asked, Avhile the first assumes it tacitly. The latter propounds a question upon the sufficiency of the whole of the plaintiffs’ testimony as presented in the evidence, to enable the witness to determine the question of mental capacity. The truthfulness of the testimony is necessarily assumed, its sufficiency only being inquired of. Any other theory makes it meaningless and ridiculous. Of course it could not be. sufficient if there is the slightest question as to its truth.

The discussion of these three assignments is therefore practically the same. The question common to all, when succinctly stated is, can the opinion of an expert witness be ashed and taken upon a mass of facts, actually proved on the trial of a case, upon the assumption that the whole is true. There is no question that if all of the same facts are grouped together in a hypothetical question the opinion may be taken. There is some contrariety of decision, though not much; on this subject, but our own cases and the weight of other authority appear to establish the admissibility of the evidence. In Pidcock v. Potter, 18 P. F. S. 342, the rule is thus stated — “Subscribing witnesses of course testify to the state of the testator’s mind, and in addition to the facts give their -opinion. The same is the case with medical men who, as experts may give them opinion upon hypothetical cases or upon the facts proved : 1 Greenleaf’s Ev. § 440. In Pennsylvania it has ahvays been the rule that after a non-professional witness has stated the facts upon which his opinion is founded he is permitted to state his opinion as to the sanity or insanity of the testator.” In Forbes v. Caruthers, 3 Yeates, 527, we said — “ Thus a physician who has not seen the particular patient may, after hearing the evidence of others, be called to prove on his oath, the general effects of a particular disease, and its probable consequences in the particular case.”

In Detweiler v. Groff, 10 Barr, 376, we said — “In questions of science, skill and trade or others of the like kind, persons of skill, sometimes called experts, may not only testify to facts, but are permitted to give them opinions in evidence: 1 Green. Ev. § 440, their opinions are confined to their judgment on the facts proved.”

In Olmsted & Bailey v. Gere, 4 Out., 127, which was an action of case for malpractice we reversed the court below for rejecting the following question put to a physician as an expert. Q. From the testimony you have heard as to the mode in which this limb was treated by Dr. Bailey, and from the results you find upon the limb was there any unskillful management on his part? ” and held that an opinion derived from both sources rvas competent.

None of these cases presents the very question we are considering, but they proceed upon the idea, and affirm the doctrine, that an expert witness may be asked his opinion upon facts proved on the trial and heard by, or known to the witness. In Dexter v. Hall, 15 Wall., 9 however a decision was made which seems to cover every aspect of the question now before us. The matter involved was the sanity of one Avho had executed a power of attorney. Depositions had been taken on both sides some tending to show sanity and others insanity. All of the depositions were read in evidence and were also read by a physician who was examined as an expert. He was then asked the following question — “ From the facts' stated in these depositions and the symptoms stated, what in your opinion was the state of Hall’s mind Dec. 27th, 1852, as to sanity or insanity.” The plaintiffs objected to the witness expressing any opinion founded on the testimony adduced on both sides and the court sustained the objection permitting the witness however, to give his opinion upon the testimony adduced by the plaintiffs. The Supreme Court said that the only assignment “ which has any plausibility, and which' needs particular notice is that which complains of the refusal of the court to permit a medical witness to give his opinion respecting the sanity of John Hall at the time when he signed the power of attorney basing his opinion upon the facts and symptoms stated in the depositions read at the trial. The witness was however allowed to give Ms opinion upon the testimony adduced by the plaintiffs. The record does not show fully what were the facts stated in the deposition, nor whether they were established by uncontradicted evidence. It may be therefore that, by the form in which the question was put the witness was required to give Ms opinion upon facts, but to ascertain and determine what the facts were. TMs of course was inadmissible. The rule is as laid down in Greenleaf’s Evidence (§ 440), “If the facts are doubtful and remain to be found by the jury it has been held improper to ask an expert who has heard the evidence what is his opinion upon .the case on trial; though he may be asked Ms opinion upon a similiar case hypothetically “ stated.” The court proceeded to say that as the answer was favorable to the defendant he was not injured by the decision' of the court refusing permission to let the witness answer upon all the testimony, and he could not complain, but it is plainly to be implied and the case is so reported, that the action of the court below was approved. •

It seems to us that tMs is the true distinction upon which the question should be determined. The witness can not be asked to state Ms opinion upon the whole case, because that necessarily includes the determination of what are the facts, and this can only be done by the jury. But if either the facts are stated hypothetically in one question, or if the whole of the testimony delivered by one of the'parties or By certain of the witnesses for one party is made known to the expert either by his reading it or hearing it, and he is then asked his opinion upon it assuming it to be true, in either case the opinion is sought upon an assumed state of facts, and may therefore be given. We can see no difference between the two modes of putting the -question to the expert, except in the manner in which the facts upon which he is to give his opinion are made known to him. In the one mode they are all repeated to him-in the question and in the other he reads them or hears them testified to, but in both the essential requirements of assuming them to be true is enjoined. Thus the witness in either case determines none of the facts himself, and in both his opinion is based upon the assumption of their truth. The source of his information is different, but the information itself is the same, generically in both cases. Many cases have been ruled upon this distinction.

Thus in a very elaborate opinion in the case of Gilman v. Town of Strafford, 50 Verm., 723, where the questions proT pounded were upon the facts stated in depositions,- the court said: “ Where an expert hears or reads the evidence, there is no reason why he may not form as correct a judgment upon such evidence, assuming it to be true, as if the. same evidence was submitted to him in the form of hypothetical questions, and it would seem to be an idle and useless ceremony to require evidence with which he is already familiar to be repeated to him in that form.”

. In Negroes, Jerry et al. v. Jeremiah Townshend, 9Md., 145, the court said: “ The question propounded, to the witness was not his opinion upon the evidence submitted. By such a question it would be left to the witness to determine what testimony he would believe and what he would reject, and the degree of weight to be attached to each item of testimony submitted. But the question was ‘ upon the hypothesis that the testimony given by the witness in this ease is all true,’ then, what would be the witness’ opinion ? By this interrogatory as thus put the witness is not permitted to weigh the testimony, but is required to assume it all to be true as stated. If is virtually, as we have said, putting a hypothetical state of the case to the witness upon which his opinion is to be given.”

In Wright v. Hardy, 22 Wisc., 348, the action was for negligently performing the amputation of a limb, an expert witness was asked, • “ Suppose lus (a witness whose testimony the expert had heard) statement relative to the amputation and his subsequent treatment to be truthful, was or was not the amputation well performed?” The court below rejected the question. The Supreme Court said: “ For ourselves we can see no reasonable objection to it. The sole object of all rulés upon the subject is that the questions shall be so framed as not to require the expert to give an opinion upon the credibility of the testimony and the truth of the facts, which are purely questions for the jury. The questions asked required no. expression of opinion as to credibility of the testimony or truth ■of the facts deposed to-by witness Knapp......It follows therefore that the court erred in rejecting thé questions'.”

In Getchell v. Hill, 21 Minn., 464, the issue was as to the treatment of a broken arm. The question was: “ Having heard the testimony in this case and assuming it to be true, what in your opinion as a surgeon was the necessity..... of the treatment ? ” The court said: “ This form of question is not obnoxious to the objection that it calls on the witness to decide any question of fact for the purpose of basing the opinion upon it. It is in effect putting to the witness a hypothetical case which is admitted to be proper. In strictness the question should state the hypothetical case. Wé think, however, that the trial court may in its discretion, as a matter of convenience, permit the hypothesis to be put to the witness by referring him to the testimony if he has heard it instead of requiring the counsel to recapitulate it.”

In Fenwick v. Bell, 1 Car. & Kir. 312, it was held that in an action of case for running down the plaintiff’s ship a nautical witness may be asked whether, having heard the evidence and admitting the facts proved by the plaintiff to be true, he is of opinion that the collision could have been avoided by proper care on the part of defendant’s servants.

A similar form of question was permitted by Lord Elhenbouough in Beckwith v. Sydebotham, 1 Campb., 116.

In Commonwealth v. Rogers, 7 Metc., 500, Chief Justice Shaw, charging a jury in a homicide case where the defence Avas insanity, after defining the subject of expert testimony, said: “ One caution in regard to this point is proper to give. Even where the medical or other professional witnesses have attended the whole trial and heard the testimony of the other Avitnesses as to the facts and circumstances of the case, they are not to judge of the credit of the witnesses, or of the truth of the facts testified by others. It is for the jury to decide whether such facts are satisfactorily proved. And the proper question to be put to the professional Avitnesses is this: If the symptoms and indications testified to by the other Avitnesses are proved, and if the jury are satisfied of the truth of them, whether in their opinion the party Avas insane, and Avhat was the nature and character of that insanity; what state of mind did they indicate.” In Hunt v. Lowell Gas Light Co., 8 Allen, 170, the plaintiffs called three physicians who had heard tbe testimony on the part of the plaintiffs which was not conflicting, and asked each of them this question: “ Having heard the evidence and assuming the statements made by the plaintiffs to be true, what in your opinion Avas their sickness, and do you see any adequate cause for the same ? ” The defendants objected to the question, but it was allowed, and on error, the court, Chapman, J., said: “ The object of all questions to experts should be to obtain their opinion as to the matter of skill or science which is in controversy, and at the same time to exclude their opinion as to the effect of the evidence in establishing controverted facts. Questions adapted to this end may be in great variety of forms. If they require the witness to draw a conclusion of fact, they should be excluded. The question put in Sills v. Brown, 9 C. & P., 601, was of this character and was rightly excluded. But where the facts stated are not complicated, and the evidence is not contradictory, and the terms of the question require the witness to assume that the facts stated are true, he is not required to draw a conclusion of the fact. In the present case the question allowed to be put does not seem to us to require of the witnesses anything more than a scientific opinion, and we do not understand the answer to include anything more than this.” Without enlarging tins opinion by further extended citations it is sufficient to say that similar rulings were made in Fairchild v. Bascomb, 35 Verm., 398; People v. Thurston, 2 Parker’s Crim. Rep., 133; Kempsey v. McGinnis, 21 Mich., 139; State v. Lautenschlager, 22 Minn., 521; Rex v. Searle, 1 M. & Rob., 75; Heald v. Thing, 45 Maine, 396; McNaghten’s Case, 10 Clark & Finelly, 198; and in Ray’s Medical Jurisprudence of Insanity, (5th ed.) §§ 638 to 650, the same doctrine is stated and defended with elaborate argument and numerous citations. We have carefully examined the cases cited by the learned counsel for the plaintiffs in error and do not find that they materially conflict with the cases above referred ■ to, or the doctrine they announce. Those of them which hold that an expert witness properly qualified can not be asked whether in his opinion the alleged testator was mentally competent to make a will can not be regarded as of any authority in this state where the opposite doctrine has always prevailed, and it is no longer an open question.

Those of them which relate to the question we are considering were in the main, decided upon some special reason not in hostility with the cases above cited, as for instance because the question required the witness to pass upon all the testimony in the ease, or to infer the facts or some of them, or the assumption of the truth of the facts to be considered was omitted, or the question was so framed as to require the witness to determine the credibility of the testimony or some part of it, or the testimony upon which he was to pronounce was in itself contradictory.

After a careful review of the whole subject we have reached the conclusion that the questions we are considering, not asking the witness to express an opinion upon the whole of the testimony, but only upon a defined portion of it, that testimony not being contradictory in itself and its truthfulness being-expressly" assumed, the witness being first made acquainted with the whole of it upon which he was to pronounce, were competent questions which might be lawfully put and answered. It is scarcely necessary 'to say that there is nothing •in' the case of Coyle v. The Commonwealth, 8 Out., 117, iii conflict with these views. The second, third and fourth assignments are not sustained.

Fifth, sixth, seventh, eighth and, ninth assignments. — An examination of the record shows that the witnesses had been examined and fully testified in chief upon the subjects covered by the questions whose rejection is complained of in these assignments. ■ At the very best their admission was subject to the discretion of the court below which we would not review: Young v. Edwards, 22 P. F. S., 264; Gaines v. Com., 14 Wr., 329; Aiken v. Stewart, 13 P. F. S., 33.

-. Tenth assignment. — We could not possibly sustain this assignment without reversing all that we have decided in Boyd 1>; Boyd; Frew v. Clarke; Cuthbertson’s Appeal and kindred cases on the subject of confidential advisers writing wills under which they take large benefits.

■ Eleventh assignment. — The fourth point of the plaintiffs was as follows: “ If the jury believe from the evidence that Mr. Neill was of sound mind when the codicil was made,-and himself suggested or directed the alterations in his will winch are -contained in the codicil and the residuary clause contained therein, no presumption arises against the validity of the codi.cil because of the relation in which Mr. Yardley stood to Mr. Neill in the drawing and execution of the codicil.” The answer of the court was as follows: “ This point is affirmed, with this qualification, that it is always ground for suspicion where one holding confidential relations to a testator prepares for and directs the execution of á will under which- he takes a considerable interest, and that the .obligation-rests on such confidential agent to show by clear and satisfactory proof that the testator fully understood the f estamentary disposition of his property as it may be, expressed .in the will or codicil.”

■ The error assigned is that the point should have been but w?„s not affirmed absolutely and without the qualification.

There is no doubt that the point as expressed is sound and might have been affirmed without any qualification. But the question with which we have to deal is,'was it error 'to add the qualification. The point was stated hypothetically, which wa-s the proper way of stating it, but there was highly controverted evidence as to the truth of the facts expressed in the hypothesis'. The jury has found that. Mr. Neill was not of ¡sound mind when the codicil was made, and the only evidence of express direction was flatly contradicted by a witness having no interest in the disputed clause.

In the light of such a verdict we must assume there was evidence of mental unsoundness given to the jury and the record shows such to be the fact. It was entirely undisputed that the person who wrote the codicil was by its provisions made the legatee of almost four fifths of the estate, when the will, -written by the testator himself when he was thoroughly master of his faculties, contained no such provision nor anything at all approaching it, or similar to it. It was also the fact that the codicil reduced certain legacies given by the will from $175,000 to $35,000, and that nothing was said to the testator indicating what proportion of his estate would go' to the scrivener under the codicil which the latter prepared. In these circumstances it can not be said that there was any impropriety or unseemliness on the part of the learned judge who tried the cause, in annexing to the affirmative answer which he gave to the point, a suitable cautionary qualification.

It is common practice to do so, and in many eases it is desirable, and in some, necessary. Of course it is essential that the qualification shall, itself, be free of error. In the present ease the only material inquiry is, was the matter stated in the qualification erroneous or sound in a legal sense. The weight of the argument for the plaintiffs in error is that the court charged in the qualification that although the facts supposed by the point created no presumption against the validity of the codicil yet “Mr. Yardley must show by clear and satisfactory proof that the testator fully understood the testamentary disposition of his property, because it is ground for suspicion when Mr. Yardley prepared the codicil for Mr. Neill which gave him a considerable interest and directed its execution. Why a suspicion if under such circumstances there was no presumption against the validity of the codicil. Why must Mr. Yardley prove by clear and satisfactory evidence that this entirely sound-minded man who ‘ suggested and directed the alterations’ which gave Mr. Yardley ‘the considerable interest ’ really understood the testamentary disposition he suggested or. directed, if there was no presumption against the validity of the codicil made under such circumstances. The very foundation of the qualification thus made is the thought that the presumption is that the codicil is the will of Mr: Yardley and not the will of Mr. Neill and he must, therefore, by clear proof overcome this presumption and show that Mr. Neill understood the whole thing and meant to give Mr. Yardley the considerable interest. Why must Mr. Yardley show all this? Because the law under the circumstances stated presumes that Mr. Yardley as the confidential. agent of Mr. Neill controlled Ms mind. The law presumes the codicil Mvalid until Mr. Yardley by due proof rebuts this presumption. This is what the learned judge meant and told the jury. If the learned judge had really told the jury all this in answering the point, his language would have been amenable to the criticism made upon it. But he did not so tell them. The fallacy of the argument lies in overlooking the fact that wlhle the point and the answer affirming it were in the concrete, the qualification was in the abstract only. The point applied a particular hypothesis directly to Mr. Neill and Mr. Yardley by name and this the court affirmed. It said that if Mr. Neill was of sound mind and himself suggested or directed the alterations in the will, no presumption arose against Yardley on account of his relation to Néill. This was what the court affirmed. What the court added was a purely abstract proposition not applied to the individuals named or either of them. The point and answer were personal, the qualification was impersonal. Unless therefore the impersonal and abstract proposition contained in the qualification was erroneous there was no error in its utterance. What was that proposition ? This — “ That it is always a ground for suspicion where one holding confidential relations to a testator prepares and directs the execution of a will under which he takes a considerable interest.” Is not this sound law ? If it is not the writer has strangely misread the cases. The learned judge must be treated with fairness. He had most abundantly presented the entire subject in his elaborate and exhaustive charge, and with so much satisfaction to counsel that not a single assignment of error is- made to any part of the general charge. Here he must be judged by the very words he uttered and by nothing else; Arguments that he said what he did not say or that he meant what his words clo not necessarily import are not sufficient, they can not persuade. The one fact' declared in this sentence of the qualification, is, tñat one holding confidential relations to a testator prepares and directs the execution of a will under which he takes a considerable interest, and the one inference from' that fact which is expressed, is “ that it is always a ground for suspicion.”

These words do not say that the fact stated created a presumption of invalidity against the will, they do not say even that it shifts the burden of proof. They say only that it is a ground of suspicion. Surely tMs is not error. If it is not a ground of suspicion it must be an indifferent fact, of no consequence in, and of, itself. But all the -cases and text writers so pronounce it. The innate sense of morality and of right which underlies all law so declares it.. Whether it is suspicious when associated with other facts depends upon what those facts are. But this particular language we are considering treats it by itself, without any association with other facts, and so regarded, it certainly expresses a legal truth. The remainder of the qualification declares “that the obligation rests upon such confidential agent to show by clear and satisfactory proof that the testator fully understood the testamentary disposition of Ms property as it may be expressed in the will or codicil.”

Undoubtedly this is correct. The confidential agent who wrote the will may discharge this obligation by showing that the testator was of sound, mind, and. himself directed the terms of the will, as was said in the plaintiff’s fourth point, or he may show that the precise meaning and import of the gift to the scrivener, were explained to the testator so that he thoroughly understood it, and that he knew and understood the condition of his estate and the proportion which would be taken by the scrivener. With all this the language of the qualification did not deal. It was not considering or discussing that subject, it merely asserted the existence of the obligation M question as a result of the one fact previously stated. What effect would result if the testator’s mind was weak and no explanation was made, had been fully discussed in the general charge, and of that no complaint is made. Generally the rule is announced in connection with the facts winch gave occasion for its utterance, and as' ordinarily stated, the fact that the scrivener took a large interest under the will if the testator was of weak mind, and no explanation of the condition of the estate or the amount of the gift was made, is much more than a suspicious circumstance. It is a controlling fact and determines the case against the scrivener.

If we turn to the authorities it will be apparent that the court below did not transcend them in using the language we are now considering. Thus in Redfield on Wills, 515, the writer says: “ Where the party to be benefited by the will has a controlling agency in procuring its formal execution, it is universally regarded as a very suspicious circumstance, and one requiring the fullest explanation. Thus where a will was written by an attorney or solicitor who is to be benefited by its provisions it was considered that this circumstance should excite stricter scrutiny and required clearer proof of capacity, and the free exercise of voluntary choice.” The whole of this language was embodied and adopted in the opinion of this court in the case of Boyd v. Boyd, 16 P. F. S., 283.

In Dean v. Negly, 5 Wr., on p. 317, Lowrie O. J. spealdng of the relations of attorney, guardian, and trustee, and of persons using them for their own advantage, says : “ In their legitimate operation, those positions of influence are respected; but where apparently used to obtain selfish advantages they are regarded with deep suspicion.”

In the case of Harrison’s Appeal, 4 Out., 458, the very able opinion of Judge Elwell was adopted as the opinion of this court. That learned Judge discussing this very question of the effect of the fact we are considering, upon the .validity of a disputed testamentary writing says: “On this branch of the case then it only remains to inquire whether the will is rendered invalid by the fact that thu scrivener is himself a legatee in trust for others, and -that his wife, the daughter of the testator, is a legatee of the larger portion of the estate. It would be profitless in this connection, to trace the law on this subject from the civil law down through the varying decisions of the courts to the present'time. The rule in England at the present day is, that when a person prepares a will with a legacy to himself, it is at most a suspicious circumstance of more or less weight according to the facts of each particular, case, in some of no weight at all, varying according to the circumstance's, such as the quantum of the legacy, and the proportion it bears to property disposed of, bu.t in no case amounting to more than a circumstance of suspicion, demanding the vigilant care and circumspection of the court investigating the case. If there is no proof beyond the fact that the will was drawn by the legatee, the suspicion in ordinary cases would bo removed by the fact of execution with knowledge of, and assent to the contents of the instrument: Barry v. Butlin, 1 Curt., 637; Hurling v. Loveland, 2 Id., 225.”

■ In Butlin v Barry, 1 Curt., 614, the court said: “Now the principles applicable to such a case are to be collected from a variety of cases in this court sanctioned by other courts: (Paske v. Ollatt, 2 Phil., 323; Ingram v. Wyatt, 4 Hagg. Eccl. Rep., 384), and other cases founded upon precedents in the earliest times, the result of which is, that where a paper .has been drawn up by a person for his own benefit, or when he takes a considerable benefit under it, the presumption lies strongly against the act, and it requires to be proved by satisfactory evidence dehors the instrument that it was the free and voluntary act of a capable testator and executed with a full knowledge of its contents.and effect.”

When this case came up on appeal as Barry v. Butlin, 1 Curt., 637, the Court, Mr. Baron Park delivering the opinion, said, “ The rules of law according to which cases of this nature are to be decided do not admit of any dispute so far as they are necessary to the determination of the present appeal...... The second (rule)' is that if a party writes or' prepares a will under which he takes a benefit, that is a circumstance which ought generally to excite the suspicion of the court and calls upon it to be vigilant and jealous in examining tbe evidence: in support of the instrument, in favor of which it ought not. to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.”

In Billinghurst v. Vickers, 1 Phill., 187, the court said: “ The presumption also is strong against an act done by the agency of the party benefited. The act is not actually defeated as it was by the civil law, provided the intention can be fairly deduced from other circumstances. Though the court will not presume fraud it will require strong proofs of intention.”

In Paske v. Ollatt, 2 Phill., 323, it was said: “The court is always1 extremely jealous of a circumstance of this nature.; By the Roman law qui se soripsit heredem could take no benefit under a will. By the law of England, this is not the case, but the law of England requires in all instances of the sort that the proof should be clear and decisive. The balance must not be left in equilibrio; the proof must go not merely to the act of signing but to the knowledge of the contents of the paper. In ordinary cases this is not necessary, but where the person who prepares the instrument and conducts the execution of it, is- himself an interested person his conduct must be watched as that of an interested person; propriety and delicacy would infer that he should not conduct the transaction.”

In Drake’s Appeal, 45 Conn., 21, it was said: '“ The amount of proof required varies with the circumstances. If the interest is small in proportion to the whole estate and the decedent at the time of making the will was in health and in the possession of his faculties, slight proof will suffice. On the other hand, if his mind is feeble and the party drawing the will takes a considerable portion of the estate to the exclusion of heirs, proof of the most conclusive nature will be required.”

There is nothing in any of these utterances at all-in conflict with the decisions of this court. On the contrary they aré quite in harmony with all we have said upon the general subject. Because we have said in cases where the facts were present, that where, a “testator is shown by evidence to be weak in mind, whether arising from age, bodily infirmity, great sorrow, or other cause tending to produce such weakness, though not sufficient to create testamentary incapacity, and the person whose advice has -been sought and taken, receives ■ a large benefit under the instrument propounded as a will, it must be shown affirmatively that the alleged testator had full understanding of the nature of the disposition contained in it,” it must not be inferred that we either said or implied that where a confidential agent acting as scrivener for a testator prepares, and superintends-the execution of a w-ill-under which he receives a large benefit, that fa ct is not to be regarded as even a circumstance of suspicion against the scrivener unless all the other facts stated accompany the transaction. It undoubtedly is a circumstance of suspicion in any case standing by itself alone, and the question how far it is to be efficacious in deters mining the validity of the testament, depends upon how far the other facts stated were present, and upon the character and the sufficiency of the explanation furnished by the scrivener. If these are not satisfactory to the judicial mind the fact which was a circumstance of suspicion becomes the basis of an adverse judgment.

It is almost unnecessary to add that this rule is a rule of general application to all kinds of instruments, the procurers of which are large beneficiaries by virtue of their operation. It is a rule of equity and is of very ancient origin. In its ordinary statement the fact of mental weakness in the grantor does not appear, and is not at all necessary to the application of the rule in a given case. Many if not most of the judicial illustrations of its application are' devoid of this element: Huguenin v. Baseley, 14 Ves., 273, is a noted instance of this class, and it has been many times recognized and followed as authority by tins court. In the admirable and exhaustive notes of Hare & Wallace to that case, appearing in 2 Lead. Cas. in Equity, Part 2, p. *430, numerous instances of a similar character are cited and discussed, in which the fiduciary relation of the beneficiary was the chief basis for equitable intervention, mental weakness being quite subordinate. Of course where mental weakness is present the burden of the confidential beneficiary is vastly increased, and it may determine the case against him when the other facts might not be sufficient. After a very extendéd reading of the cases the writer feels justified in saying that in all of them the confidential relation of the beneficiary to the benefactor is a most important element of the inquiry and in none of them is it regarded as less than a circumstance of suspicion requiring explanation. The eleventh assignment is not sustained.

The same considerations apply to the fifteenth assignment and require its dismissal.

Twelfth Assignment. — The plaintiffs’ fifth point asked a binding instruction to the jury to find in their favor absolutely if they believed Mr. Neill was of sound mind and knew the contents of the codicil when he executed it. The court'could not do this without ignoring entirely the issue of undue influence, which was granted by the Orphans’ Court after this court had declared that there was evidence enough in the case to carry that question to the jury. It was the positive duty of the court below if the point was affirmed, to qualify it so as to leave tbe question of the free will of the testator still with the' jury. It would have been clear error if this had not been done. It is quite too narrow a view of the language of the qualification to say that it presented to the jury a question of actual coercion or constraint. It left to them the whole question of the free execution of the codicil without any species of coercion or constraint from any source. This of course includes the kind of coercion which results from the use of undue influence. As a legal proposition the answer to the point is undoubtedly correct. The only objection made to it is that it suggested or rather referred to the jury a question of which there was no evidence, to wit, actual coercion. We do not so understand it. The kind of coercion which consists of undue influence was most fully and correctly explained to the jury in the general charge, and there was no danger of their being misled upon this subject by the language used in the qualification of the answer. The twelfth assignment is not sustained.

Thirteenth assignment. — -The eighth point of the plaintiffs asked the court to say that if the will and codicil were read to Mr. Neill by his direction after they were executed and he was in a condition of mind to fully comprehend the meaning and effect of the codicil, and after hearing them read he said in substance it was what he wanted, and allowed the codicil to remain unaltered for a month or two while he was competent to direct a change therein, the jury might find for the plaintiffs on all the issues. The court declined to affirm the point, saying that although Mr Neill’s mind may have been in a condition to fully comprehend the meaning and effect of the codicil, yet if his mind had become impaired it must be clearly shown, either that it was explained to him what the value of his estate was, arid how much he was giving to Yardley, or that he fully understood the same without such explanation. We can not possibly see any error in this. The attempt of the point was to substitute a general knowledge of the meaning and effect of the codicil, for that precise and definite knowledge of the condition and amount of the estate, and the proportion of it which the confidential beneficiary was to take, which the courts have said, many times over, the testator must have in order that the testament may stand. As we understand and have repeatedly declared the law, a capacity to understand the meaning and effect of a will may co-exist with its invalidity, if the testator was of weak mind, and the principal object of his bounty was his confidential agent who wrote it. This consideration fully justified the court below in the answer given to the point. The thirteenth assignment is not sustained.

Fourteenth assignment — The first point of' the defendants expresses in substance, and almost in words,'the ruling-of this court in Cuthbertson’s Appeal and therefore it was not error to affirm it. The concluding sentence is not drawn with perfect accuracy, as it seemingly asks for a peremptory instruction to find for the defendants on one of the issues; But this sentence is preceded by a hypothesis as to the mental condition of the testator at the execution of the codicil, and we assume as counsel on both sides and the court below did, that the conclusion was based upon the truth of the hypothesis. In this view the affirmance was correct as it is entirely without question that Yardley gave no explanation to Neill when the codicil was executed or at the previous interview, either of the condition or value of Neill’s estate, or of the proportion of it which the codicil gave to Yardley. The assignment is not sustained.

Sixteenth assignment — Complaint is made of the answer given by the court to the question asked by the jury, partly because the court did not define more precisely the degree of mental weakness on the part of the testator which would cast the duty of explanation. upon Yardley, and partly because of the concluding sentence of the answer as to whether Neill was the man he was when the will was made. If the court had said to the jury that they should find for the defendants if they found that the testator was not the same man physically and mentally when he made the codicil as when he made the will, such direction would have been open to serious objection. But the court did not say this. The question was, “ If Mr. Neill’s mind was at all impaired on the 2d of December 1876, was Yardley in that event obliged to acquaint Neill as to the probable amount which he, Yardley, would take under the residuary clause in the codicil ? If such is the law in this case would Yardley’s failure to so acquaint Neill render the codicil null and void ? ” The answer was: “ The Supreme Court has said that if the mind has become weak or impaired it is the duty of the scrivener to acquaint the testator with the value of his property, and with the amount the scrivener would take under the will. I can not undertake to draw a rule by which the degree to which a mind has weakened must be measured. If Mr. Neill’s mind has become weak such explanation must be shown, to authorize the jury to find a verdict in favor of the codicil, or, as the Supreme Court has stated it, the jury must say whether the testator was physically and intellectually the same man when he executed the codicil as when he made the original will.” This question was asked with reference.to the facts of this case.and we think the correctness of the answer must be determined by a eonsideration of those facts. If the legacy to Yardley had been a few hundred, or even a few thousand, dollars, and the amount was expressly stated, it is apparent that a low degree of mental power on the part of the testator would have sufficed to understand and comprehend it, and to estimate the proportion it bore to the rest of the estate.- If Yardley had really rendered valuable services to Neill, and Neill had expressed a sense of obligation for them, and a desire to reward him in his will, it would be still more apparent that a low grade of intellectual force would have been sufficient for the appreciation of a gift in his favor especially if the amount of it were named. If Yardley had been interested in the residue under the will, which undoubtedly, expressed Mr. Neill’s intelligent consciousness, of the disposition of his estate, it could at least have been said that the testator certainly intended he should have some, part of the residue, and it would then only have been necessary that he should be mentally able to understand the difference between the part given by the will and that given by the codicil. But none of these facts existed. The change made by the codicil was vital in all respects. It created a new and entirely different distribution of the testator’s estate from that established by the will. Legacies given to friends and to charities, upon the most deliberate and thoughtful purpose, when his affections, his instincts of philanthropy, his well informed conscience, his personal desire dominated his intelligent action, were stricken down without any assigned, indeed without a conceivable, reason. Gifts which he certainly did desire to make to the extent of $175,000, when he knew his own mind, were reduced to one fifth part of that sum without a word of explanation, without the slightest intimation that he was in the least degree dissatisfied with his former purpose. But over and above and beyond all these considerations, the vast residuum of the estate constituting nearly four fifths of its bulk, was given by the codicil to one who would not have received a dollar of it by the will. And that one was the adviser, the confidential agent, the selected and trusted scrivener who wrote the codicil, and who wrote himself into it in such a fashion as to take almost the entire substance of the estate. It was neither a small nor an ordinary estate. It consisted of many items of personalty and of realty. In its aggregate it represented a very large sum of money, more than $400,000. Did Mr. Neill know and understand when he executed the codicil, that he was giving to Mr. Yardley nearly the whole of this great estate, that he was taking away from his former legatees four fifths' of the sums which he gave them when he well knew his own desire ? If he did, he had the undoubted right to do just as he pleased and no man oonld gainsay Ms action. But if he did not, the law protects him though he did not protect himself. In such circumstances as these the law is very jealous indeed. In conducting its inquiries it increases its precautions and the severity of its tests, in proportion to the increased gravity of the facts and the magnitude of the interests involved. Such is the teaching of all the cases. In this case the question we are considering is how much mental impairment was required to cast upon the scrivener, who toolc the bulk of the estate under a codicil, written by liimself, when that codicil totally changed the provisions of a previous will in this respect, the duty of explaining to the testator the meaning and effect of the codicil, and the proportion of the estate which he would probably take under its provisions. The learned judge answered the question by saying he could not draw a rule by which the degree to wMch the mind was weakened must be measured in such circumstances. He repeated the rule so often stated by this and other courts that if the mind has become weak or impaired, it is the duty of the scrivener to acquaint the testator with the value of his property, and with the amount the scrivener would take under the will. Clearly there was no error in this. ' Who can fix by a defined rule the amount of the mental weakness which shall impose the duty of explanation in such a case ? It is not possible to state a rule wMch would be applicable to all cases alike, and the circumstances of this case are of so very peculiar a character, that if the learned judge had said that any mental impairment which was appreciable would cast the duty of explanation upon the scrivener he would scarcely have been in error. In Wilson v. Mitchell, 5 Out., on p. 505, we said, “ in the case of an old, infirm and mentally weak man, disposing of his estate in favor of his confidential adviser, the general rule that testamentary capacity and knowledge of the •disposition made are presumed, does not apply. There should be very clear evidence of mental capacity, and proof independent of the execution of the will that Mr. Dougal’s mind was free, and unbiased by the counsel, advice or influence of Mr. Mitchell in so executing it. The beneficiary himself is a com-' petent witness and can not complain that the rule is hard or unjust, which requires him to make it clearly appear, that the gift to him was the free intelligent act of the testator.” The learned judge in the court below went no further than this. It is not necessary to go beyond the testimony of Mr. Yardley himself to learn that no word of explanation was offered by him to Mr. Neill upon this most important subject. And it is not easy to understand the facts attending the preparation of the codicil, just as they were stated by Yardley, except upon the theory of very considerable mental impairment on the part of Mr. Neill from the time he made his will. It is incredible that he would have made such extraordinary changes in his will without the slightest comment or explanatory remark unless Ins mental faculties had become considerably impaired. Upon Miss Lambert’s account of the transaction such a conclusion cannot be resisted.

What the learned judge said in conclusion about the jury finding whether the testator was physically and intellectually the same man when he executed the codicil as when he made the original will, was preceded in the same sentence by the hypothesis that he had become of weak mind. It was a mere repetition of the very same expression used by him in the general charge, and used in such ’a manner and with such precise and definite explanations that no assignment of error has been made to it, or could be, with any hope of success. It is but fair to the court below to consider what he there said on the same subject in connection with what was said in answer to the question of the jury. The defendants’ second point asked the court to say that if the jury believed that Neill was not the same man physically and intellectually when he executed the codicil as when he made the will, the burden of proof was thrown upon Yardley to prove that Neill fully understood the value of his property and the probable residue after paying all his legacies. This the court declmed to do, saying, “ I decline to affirm this point as it is stated. It is a. question of fact for the jury to say whether the mental faculties of John L. Neill had. failed: his physical condition is comparatively unimportant except as connected with, or causing a failure of mental powers.” In the general charge the court, after explaining most carefully and correctly the effects of the possible weakening of the testator’s mental powers and the duty which in that event was cast upon YarcUey, proceeds thus, “ TMs case you will therefore see Mnges to • a great extent on the posr session by the testator of a mind that had not weakened or become impaired on the 2d of December, 1876; this implies, the retention of memory, understanding and will, and is therefore to be decided mainly by the evidence in the cause which bears directly or indirectly on this question. If you believe it has been shown that the testator’s mind had not become’ impaired, that his memory and understanding retained their full powers, that his will was as resolute and unyielding: as before he was stricken with what Dr. Drysdale characterizes as an incurable malady, your way would seem to be clear in rendering a verdict in favor of the plaintiffs on all the issues. .....On the other hand, if the evidence satisfies you that testator’s mind w;as weakened, that he had gone down both physically and mentally under the afflictions which fell upon him, or, as the Supreme Court say, if this inquiry leads you to' the belief that mentally and physically he was not the John L. Neill as when he wrote the original will of 1874, then you are to say whether all that the law in such a ease requires has been made to appear......Is there any other evidence in the cause that shows clearly that though ’his mind had weakened, his memory and understanding was sufficiently strong and clear to have enabled him to understand the nature of his testamentary dispositions and that he did in fact fully and beyond question understand them.” It is difficult to understand how the court could have defined more minutely or intelligently the limitations of the subject, than was done in the foregoing language. That it was correctly done is intrinsically evident, and the very able counsel for the plaintiffs in error haye shown their appreciation of this by taking no exception and filing no specification of error to 'it. And yet in substance the answer given to the question of the jury is the same. The question did not relate to the issue of sanity on which the verdict for the defendants was rendered, and on the other issue it related only to the question of Yardley’s duty, which was apparent upon almost any view of the testimony it is possible to take consistently with the extraordinary facts which are quite undisputed. The sixteenth assignment is not sustained.

Judgment affirmed.

Mercur O. J.- and Clark, J. dissented.