Opinion
(December Term, 1860.)
Where an alleged testator, in a paper-writing propounded as his will, devised and bequeathed certain property to the child of his housekeeper, a white woman, which child was proven to be a mulatto, but which the mother had induced him to believe was his, it was Held, that this furnished no evidence to support the allegation that the will was obtained by fraud and undue influence.
DEVISAVIT VEL NON, tried before Osborne, J., at Spring Term, 1860, of ROWAN.
Boyden for propounders.
Love for caveator.
The paper-writing purporting to be the last will and testament of Jacob Troutman, deceased, contained the following bequests and devises:
"Item 3. I will and bequeath to Ann Allmond $250, provided the said Ann shall live with my wife, Polly, and assist her in health and in sickness; and if the said Ann shall faithfully perform her duty to my said wife during the life of my wife or widowhood, then at the death of my said wife I will bequeath to the said Ann $5 more.
"Item 4. All the balance of my estate and property of every kind and description, including my gold mine and everything else, I will and bequeath to Lucy, the infant child of the said Ann Allmond, and if the said Lucy should die without lawful children or child, then it is my will that all I have willed to the said Lucy shall be divided between the children of my brothers, David Troutman, John Troutman, and my sister, Sarah Earnhart's children."
The propounders of the alleged will are Ann Allmond and the children of David Troutman, John Troutman, and Sarah Earnhart, mentioned in the will. The caveator is a brother, and one of the (305) heirs at law and next of kin of Jacob Troutman, the decedent.
The formal execution of the paper-writing by the said Jacob Troutman was duly proved by the three subscribing witness, who also testified that in their opinion he was of sound mind, in which opinion all of the witnesses concurred on the trial.
It was in proof that Jacob Troutman and his wife were childless, and that the legatee, Ann Allmond, had lived in his house from 1849 to 1859, in the fall of which year she died.
One of the subscribing witnesses testified that Lucy, the child of Ann, died during the life of Jacob Troutman; that, in his opinion, she was a mulatto; that Allmond, the mother, is a white woman; that Jacob Troutman told him that the child was his, both before and since her death, and accounted for the color from a fright which Ann Allmond had received while enciente; that she was about three years old when she died; that he had done much business for Jacob Troutman, and drafted this paper-writing; that when it was done, Jacob Troutman sent her, Ann, out of the room; that he urged upon him to leave Henry, the present caveator, something, which he declined doing, for the reason that Henry would spend it in litigation. The witness stated that Jacob had become displeased with Henry because of some lawsuit they had had.
James Montgomery, also one of the subscribing witnesses, swore that he had no doubt the child was a half-blood mulatto; that he judged from its color; that he was a neighbor, and had frequent opportunities of seeing the child; that Jacob Troutman believed the child was his, said he knew it was, and that he intended to make a lady of it.
Dr. J. P. Cunningham testified that he was a practicing physician in the vicinity of Jacob Troutman's residence; that on one occasion he was called upon by Troutman to visit the child spoken of; that when he arrived, he found her in his arms; that he called her (306) "daddy's baby," and that the child was unquestionably a negro.
Dr. John R. Wilson, a practicing physician of the same vicinity, testified that the child was, in his opinion, a mulatto, and that Jacob Troutman had once remarked to him that he loved the child as much as if it was his own; that Ann had gone out and picked it up somewhere.
J. C. Barnhart swore that when Ann Allmond was pregnant with the child, he was a justice of the peace in the county, and issued a warrant for her to make her swear to the father, or give bond as prescribed by law; that she gave the bond, and Jacob Troutman either became her surety or procured some one to do so, he did not remember which; he also said that Jacob Troutman was a man of sound mind, though very illiterate.
J. M. Long, Esq., the draftsman of the will, proved that after the death of the child the testator applied to him to know whether another will was necessary to dispose of the part he had left for the child; that he advised him that it was not, but that the property would go over to his relations under the provisions of the existing will.
The counsel for the caveator insisted that there was testimony to be submitted to the jury that the will was procured by the false representations and undue influence of Ann Allmond.
The court charged the jury that there was no evidence of such influence as would invalidate the will, and if they believed the testimony, the decedent was of sound mind; also, that the paper-writing was properly attested and executed. Caveator's counsel excepted.
Verdict for propounders. Appeal by caveator.
We concur in the opinion of his Honor who tried this cause that there was no evidence of the will having been procured (307) by the fraud and undue influence of Ann Allmond or any other person. It was abundantly proved, and is conceded, that the alleged testator was of sound and disposing mind and memory when he executed the script which is propounded for probate as his will. The only circumstance from which it is sought to be inferred that he executed it under the effect of fraud, or under the exercise of undue influence, is that Ann Allmond, his housekeeper, a white woman, induced him to believe that he was the father of her mulatto child. Supposing that he did believe the child was his, and that the mother of it told him so, there is not the slightest testimony to show that she ever even asked him to make a will in favor of her and the child, or that she knew, before the will was made that he intended to make one, or, afterwards, that he had made it. An eminent judge in the ecclesiastical courts in England (Sir John Nichol) said in Williams v. Gaude, 1 Hagg., 581, "That the influence to vitiate an act must amount to force or coercion, destroying free agency; it must not be the influence of affection or attachment; it must not be the mere desire of gratifying the wishes of another; for that would be a very strong ground of support of a testamentary act." In the present case, what influence is it shown that Ann Allmond had over the alleged testator, amounting to force or coercion, and destroying his free agency? None whatever. At most, it is said that she made him believe that he had begotten a child by her which everybody but himself could see was a mulatto. Surely, that alone cannot destroy a will which the mother is not shown to have had the slightest agency in procuring. It has been said by a satirical writer that many a married man fondles children as his own which his wiser wife knows to belong to another. Would a will in favor of such children be set aside upon the ground that the trusting husband had been imposed upon, and had, on that account, acted under undue influence? Certainly not; and yet, to set aside the present will for the cause assigned would be almost as bad. The truth is, that the old man, being childless by his wife, took a strange fancy to the child of his housekeeper, and whether it were his or not, he had a father's love for it, and our law imposes (308) no prohibition upon a man to prevent him from bestowing his property upon the object of his affection. Affection or attachment, as Sir John Nichol said, "would be a very strong ground of support of a testamentary act."
PER CURIAM. No error.