Frew v. Clarke , 80 Pa. 170 ( 1876 )

Mr. Justice Mercur

delivered the opinion of the court,

This was a feigned issue to try the genuineness and testamentary character of a written instrument, of which the following is a copy, to wit:—

“ Know all men by these presents, that I, James McCully, of Pittsburg, Pa., do order and direct my administrators or executors; in case of my death, to pay Robert D. Clarke, the sum of seventy-five thousand dollars, 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.

$75,000.

James McCully. [l. s.]”

Twenty errors have been assigned, yet all the substantial matters may be considered in answering the following questions:—

1. Is the instrument of a testamentary character ?

2. Is the signature thereto in the handwriting of James McCully ?

3. Was his signature obtained through fraud or imposition, or in his ignorance of the contents of the instrument ?

The first is a question of law, the others questions of facts.

1. A will is defined to be the legal declaration of a man’s intentions, which he wills to be performed after his death: 2 Black. Com. 500; Bouv. Law Dic.; 1 Jarman on Wills 11. An instrument in any form, whether a deed poll or indenture, if the obvious purpose is not to take place till after the death of the person making it, shall operate as a will: Habergham v. Vincent, 2 Ves. Jr. 204. It may be by an endorsement on a note: Hunt v. Hunt, 4 N. H. 434; or by letter: Morell v. Dickey, 1 Johns. Ch. 153. Whatever be the form of the instrument, if it vests no present interest, but only directs what is to be done after the death of the maker, it is testamentary: Turner et al. v. Scott, 1 P. F. Smith 126. The essence of the definition is, that it is a disposition to take effect after death: Redfield on Wills 5; Turner v. Scott, supra. Nor does it matter that the person intended to make a note instead of a will. If he used language which the law holds to be testamentary, his intention is to be gathered from the legal import of the words he employed: Id. Ño form of words is necessary to make a valid will. The form of the instrument is immaterial, if its substance is testamentary: Patterson v. English, 21 P. F. Smith 458; see also Rose v. Quick, 6 Casey 225; Frederick’s Appeal, 2 P. F. Smith 338.

This instrument is in writing. It is signed at the end thereof. It contains no admission of indebtedness. It furnishes no evidence of a debt. It contains no promise to pay. It vested no present interest. It was not to take effect until after the death of McCully. In the meantime he could revoke it at his pleasure. It therefore possessed all the essential characteristics of a will, and was undoubtedly testamentary in its character.

2. The 6th section of the Act of 8th April 1833, requires that a will “ in all cases shall be proved by the oaths or affirmations of two or more competent witnesses.” The act does not require them to be subscribing witnesses: Jones v. Murphy, 8 W. & S. 295; Carson’s Appeal, 9 P. F. Smith 498. Although the body of the will be not in the handwriting of the testator: Weigel v. Weigel, 5 Watts 486; Hinder v. Farnum, 10 Barr 98: Derr v. Greenwalt, 26 P. F. Smith 254. It may be proved then by competent witnesses, two or more in number. In this case, some fifteen witnesses testified to the authenticity of McCully’s signature. Among the number was Robert D. Clarke,the defendant in error. It is claimed that he was incompetent. If so, it must be on the ground of either interest or policy. The first section of the Act of 15th April 1869, declares “ no interest or policy of law shall exclude a party or person from being a witness in any civil proceeding.” The proviso to the section, after wholly excluding from the operation of the act several classes of cases, declares, inter alia, the act shall apply in “issues and inquiries devisavit vel non.” This was an issue devisavit vel non. It was the very question in controversy. It is then just the case in which the Act of Assembly says Clarke is a competent witness, although a party and interested. To deny this, is to disregard the specific terms of the act, and to refuse to give effect to the language cited. It was, therefore, held in Bowen v. Goranflo, 28 P. F. Smith 357, that one who was a party to the issue and both executor and devisee under the will in controversy, was a competent witness.

A careful review of the act confirms us in the correctness of the conclusion at which we then arrived. We do not see how effect can otherwise be given to the clause in question. It is claimed, however, that this construction of the statute will open the door to fraud and perjury. It may be so. It is possible that permitting .parties to testify in any case has caused much perjury. The good and the bad in this world are very much blended. Many an act of the legislature may not produce unalloyed good, yet we must give effect to its provisions. If the evil preponderates in obeying its mandates, the corrective power is lodged in the legislature to modify or repeal what they have enacted. We therefore see no error in permitting Clarke to testify. The evidence in favor of the signature being McCuliy’s, was most ample to submit to the jury. On that testimony they had a right to find, as they did; find, the signature to be genuine.

3. The learned judge said to the jury there was no evidence in the case of want of testamentary capacity in James McCully. A careful examination of the testimony leads us to the same conclusion. He appears to have been a man of plain tastes and of economical habits. He was intelligent, careful and sagacious. Industrious and self-controlling, he had the ability to retain, as well as to make property. .No foolish bargains characterized his conduct. He had a vigorous and well-balanced mind. His testamentary capacity was very clear.

The question whether any fraud or imposition was practised on McCully, or that he signed the paper in ignorance of its contents, or that some one wrote the body of the instrument over his signature and without his knowledge and consent, were all fairly submitted to the jury. The burden of proving these allegations rested on the party alleging them. If he signed the instrument, the presumption is that he did so voluntarily with a full knowledge of its contents. It is claimed, however, that when the principal beneficiary under a will is a stranger, having no claims from relationship, direct proof is not required of undue influence in procuring the making of the will. In support of this view, Boyd v. Boyd, 16 P. F. Smith 283, is cited. That case, however, is predicated of general evidence of power exercised over a testator of comparatively weak mind. If the mental capacity of McCully had been impaired ; if he had become weak from age or bodily infirmity, although not to 'such an extent as to destroy his testamentary capacity, it might have shifted the burden of proof, and required the defendant in error to negative, by evidence, a 'presumption of undue influence. It is shown, however, that McCully’s mental capacity was not impaired. He had not become weak through age, bodily infirmity or otherwise. His mind was clear, strong and discriminating. His judgment was good and self-reliant.

It is further urged that Clarke occupied a semi-confidential relation to the testator, growing out of the fact that the body of ¹ the will is in the handwriting of Clarke; that this is a suspicious circumstance requiring the fullest explanation. Granted. Yet if Clarke is believed, a full explanation was given. He gave a minute statement of all the circumstances under which the will was prepared.

The court said, substantially, to the jury, that while the facts proved did not create any legal presumption against the genuineness of the instrument, yet they were calculated to excite suspicion, and made it their duty to be vigilant and careful in examining the evidence in support of the genuineness of the instrument, and not to recognise it as McCully’s will, unless it had been fairly and satisfactorily established by the evidence. The jury were thus cautioned and . warned. Cautioned to examine carefully all the evidence casting any suspicion on the will, and warned against disregarding those facts on insufficient evidence. As bearing on the .question of the absence of imposition on the testator, it was relevant to show that he possessed a large estate, and died worth from one and a quarter to one and a half millions of dollars ; that he had neither wife nor child, and that his relations with Clarke were of an intimate, business and social character. In the absence of persons having strong natural claims on McCully’s bounty, he might more reasonably have donated a small portion of- his large estate ■“ to commemorate the long friendship existing between them.”

When a witness is called to prove a signature from his knowledge of the handwriting of the alleged signer, and not from having seen the particular signature written, we think the better rule is to permit the witness to be cross-examined as to his means of knowledge before he testifies as to the genuineness of the signature in question. The court departed from this rule in the case covered by the first assignment, but the plaintiffs in error sustained no injury thereby. The subsequent cross-examination showed the witness to be fully qualified by his previous knowledge to state his belief in the authenticity of the signature.

We think the learned judge ruled all the legal questions substantially correctly, and we discover no good reason for disturbing the judgment, therefore Judgment affirmed.¹

Askew, C. J.

— I doubt as to the question of interpretation of the Act of 1869, as decided in the case of Goranflo.

Mr. Justice Paxson dissented and filed a dissenting opinion, in which Mr. Justice Sharswood concurred.

1 This case was re-affirmed by a divided court after re-argument at Pitts-burg at October Term 1876; Mr. Justice Williams being sick and absent.