Opinion
June Term, 1821.
Evidence is admissible of the declarations of a testator made at any time subsequent to the execution of the will, which goes to show that the testator believed the contents of the will to be different from what they really are, or declarations by testator of any other circumstances which show that it is not his will, are admissible.
FROM PITT. The following is the case as it appeared reported to this Court in the statement made by the court below:
This was a case of a contested probate of a will between the executors and one of the heirs and next of kin, the paper-writing purporting to have been published and declared as the testator's last will and testament in the presence of two witnesses; they declared on examination that the will was executed at the house of William Blackledge, in New Bern, between sunrise and breakfast time on some day in August, 1815; that they were called to the house by William Blackledge for the purpose of attesting a paper, where they found Blackledge and James Reel alone; that they either saw James Reel write or heard him acknowledge his signature; that they did not at the time know what was the nature of the instrument, but subscribed it as witnesses in James Reel's presence. They believed that James Reel was not drunk but sober; that they had no conversation with him; (249) remained but a few minutes, and left Reel and Blackledge together. One of the subscribing witnesses stated that he believed on his entering Blackledge's house Reel met him at the door and asked him to witness the paper; that the witness, from a fear that he might be signing some obligation or instrument whereby he might incur liability, attempted to look over the instrument before fixing his signature, when Reel intimated to him not to do so, and said that it was nothing that could hurt him. It appeared further in evidence that Reel left Blackledge's house that morning before breakfast; that the will was left with Blackledge, and after Reel's death was produced by Blackledge, enclosed in an envelope with three seals. The will was in the following words:
"In the name of God; Amen:
"I, James Reel, of Craven County, being of sound and disposing mind and memory, do make and ordain this my last will and testament, in manner and form following:
"Imprimis — I direct that all my just debts be paid.
"Item. — I give the sum of two hundred dollars to the children of my brother, John Reel, to them, their executors, administrators and assigns forever.
"Item. — I give to my brother, Levi Reel, one hundred dollars, to him, his heirs and assigns, forever.
"Item. — I give to my sister, Sally Wintly, fifty dollars, to her, her heirs and assigns forever.
"Item. — I give to my sister, Alicia Willis, in Georgia, one hundred dollars forever.
"Item. — I give to my sister, Polly Ernull, one hundred dollars forever.
"Item. — I give to my nephew, Aaron Ernull, the debt he owes me and one hundred dollars, besides a reasonable reward for his trouble in superintending my business to him and his heirs forever.
"Item. — I give to my nephew, Robert Reel, and my niece. Susanna Pringle, each five dollars, forever.
"Item. — My friends William Blackledge and Vine Allen, having heretofore borne the greatest burden of the expenses and labor in supporting the Republican cause in the county of Craven, and being myself of the same political principles and very desirous of having them supported, I, the better to enable them to continue their support of these principles, do give to them, their heirs, executors, administrators and assigns (250) forever, the whole of the residue of my estate, both real and personal, except so much as shall be necessary to pay two-thirds of the expenses of building a Baptist meeting house, at such place in the neighborhood as a majority of the Baptists of the same sect of which my parents were, shall appoint or pitch upon, and to be paid as soon as the other third of the cost of the building shall be properly secured by the members of such Baptist church. My desire is that no sale be made of any of the property, but that the legacies be paid out of the debts due as they are collected, and if there be not enough due, then that such as my executors cannot pay out of that fund be postponed payment till the income of my estate shall pay them, and my executors to have choice in paying whatever legacy first they please.
"Lastly. — I constitute William Blackledge and Vine Allen, sole executors of this my last will and testament, and revoke all other or former wills by me heretofore made.
"In witness whereof, I have hereunto set my hand and seal.
"This 23 August, 1815, at New Bern.
"JAMES REEL. (L. S.)
"Signed, sealed, published and declared by the testator as his last will and testament in presence of us:
"Thomas C. Masters.
"David Lewis.
"As a part of this my will I further give to my nephew, Radford Ernull, the debt he owes me and fifty dollars to him, his heirs and assigns forever.
"As witness my hand and seal, this 23 August, 1815.
"JAMES REEL. (L. S.)
"Acknowledged by the testator at the same time, with the foregoing as a part of this his will.
"THOMAS C. MASTERS.
"DAVID LEWIS.
"As a further part of this will I give to my nephews, Moses and Allen Ernull, each twenty-five dollars, and to Stephen Ernull I give the amount he owes.
"As witness my hand and seal, this 23 August, 1815.
"JAMES REEL. (L. S.)
"Acknowledged, etc., as before:
"Thomas C. Masters.
"David Lewis."
On the part of the defendant many witnesses were brought forward who swore that James Reel lived in the county of Craven, some miles from the town of New Bern; some of them (251) stated that he had always been a man of a very weak understanding, and from his youth up addicted to intoxication; that his habits of intemperance had exceedingly impaired the little understanding he had from nature; that a short time before the date of the will he had been confined with a severe fit of sickness, after his recovery from which his habit of drunkenness became, if possible, more inveterate; that he always became intoxicated when the means could be procured, and by one witness he was represented as the greatest drunkard he ever had seen. Two of the witnesses stated that in New Bern, a place which he often visited, and where they frequently met with him, they never had seen him sober; and one of them further swore that he had never seen him in the town, when in his opinion he was in a state competent to dispose of his property with reason and intelligence. These witnesses admitted he was parsimonious, disposed to use trick in his bargains, asking too much for what he had to sell, and unwilling to give the value for what he bought. The defendant further proved that James Reel came to New Bern at the election on the second Thursday in August, 1815, and remained there several days afterwards, during all which time he was seen drunk; that some time after the election he came drunk to the house of one of the witnesses, who resided in New Bern, and remained there during the night; he then talked of his disease; said his home was a terror to him; while others slept he was walking; sometimes he thought himself in Tennessee, sometimes in England, and sometimes in the West Indies; he expressed a fear that the house of the witness was haunted; that he should be taken and carried away through the window in the night; he spoke of a design to travel for his health and to make William Blackledge and Vine Allen trustees to manage his business during his absence. On the morning of the succeeding day, Reel did not appear to have been relieved by sleep, but talked as incoherently as on the (252) preceding night, and left the witness to seek for Blackledge, after repeating his design of making Blackledge and Allen his trustees. This witness, who had known Reel from his childhood, was so struck by his strange demeanor as to express at the time an opinion that Reel was becoming crazy or was about to die shortly. On the same day, this witness again met Reel coming down the street that led from Blackledge's house, evidently intoxicated, and was informed by Reel that he had not completed his business, but would do it if he thereby was caused to remain a week longer. It was further proved that, in the afternoon preceding the morning on which the will was executed, Reel went to the house of Blackledge, and there spent the night; that he and B. were in the front room, alone, and that in the course of the evening Reel went into the supper room, sat at the table and took supper with the family; that at the table he talked of making his will and leaving Blackledge heir to his property, and that he was then intoxicated. It was proved that Reel had been taught at school to read and write, and the elements of arithmetic; that he could calculate with figures, read writing badly; that if sober he might possibly with much difficulty have read the will, but if drunk it would be utterly out of his power. Other witnesses said that when he was not too much intoxicated to stand, he could read small pieces of writing, notes of hand, etc. There was no evidence that the will had ever been read to him; the whole was in the hand writing of Blackledge, and no person besides saw any part of it written. It was proved that Blackledge had been Reel's lawyer on some occasion, and was a man in whom he placed much confidence.
James Reel died on 30 June, 1818, and it was proved by the defendant that, repeatedly, from August, 1817, down to four days previous to his death, the supposed testator sent messages to Blackledge to bring or send him his packet of papers. It was not shown that these messages had been received; further (253) than that, it appeared, the supposed testator had expressed great dissatisfaction at one time that Blackledge had not come, as he said B. had promised; and at other times was angry at the failure of these attempts to procure the papers, and declared that Blackledge had treated him ill and was not the man he had supposed. It was further proved, in regard to the reason assigned in the will for making B. and A. residuary devisees and legatees, that the former had borne as great a part as any other individual of the expense and trouble of supporting what was called the Republican cause in the county of Craven, but that the latter had not contributed as much as others for that purpose. The defendant then offered to prove that, at various times, between the date of the supposed will and the death of James Reel, the said James had repeatedly mentioned what he believed to be the substance of the will left in the hands of Blackledge; and that, according to that representation, the said Reel understood the contents of the will as materially different and indeed utterly variant from what it appears on its face, particularly in regard to the residuary clause giving his estate to Blackledge and Allen, which Reel believed to be a gift to the public. This evidence the court refused to receive, unless it should be of declarations immediately upon the transaction, or so soon thereafter as to form part of the res gestae. The residue given to B. and A. was supposed to be worth $3,000. The testator had no wife or children, but left brothers and sisters and the children of deceased brothers and sisters, with whom, according to the defendant's witnesses, he had always associated on terms of affection.
On the part of the executors, several witnesses testified that James Reel, though never a man of bright intellect, had ordinary capacity, and, whenever sober enough to stand, had understanding sufficient to manage his business; that he was the owner of a farm and a mill, and generally lived alone, sold the products of his farm and mill, lent money at interest, took (254) obligations for the payment of it; was not easily defrauded, and took care of his property; that at the periods of elections, he sometimes became angry with his brother, the defendant, because their political sentiments were different, and that then he would declare defendant should have none of his property; that the fit of sickness, before spoken of, occurred about three years before his death, and that he complained that his relations neglected him. About two months before he died, he gave the key of his chest, containing bonds, accounts and money, to a witness, with instructions to return the key to him when demanded, or to deliver it to Blackledge; that he said he had a will in Blackledge's hands, and had told one of his sisters, who had asked him for one-half of his mill, that her legacy was in New Bern, under three seals, and asked her what she would do with a mill. Some time before his death, on being told that if he disliked his will he had power to revoke it and make another, he replied he knew that, but he believed his relations cared no more for him than for a brute, except for what they might obtain from him, and that he was willing and, indeed, preferred that his will should stand, remarking at the same time to the witness, who proved this, that he should have as good a share of his property as any of them.
The presiding judge instructed the jury that the first point to be considered by them was whether Reel had a capacity to make a will, and that if he had sense to make a legal contract, if he knew how to read, write, cipher and manage a plantation, it was sufficient evidence he had capacity for such a purpose.
That the second inquiry was whether he was so drunk at the time of executing the will as not to know what he was doing, and that as to the inquiry the testimony of the subscribing witnesses, if believed, proved that he was not so drunk as not to know what he was about.
Thirdly, that if the jury could discover any evidence (255) that the testator was imposed on by Blackledge in making the will, so as to sign a disposition of his property which he did not intend, they might on that ground set the paper aside, but that there ought to be proof to that effect; and,
Lastly, that there was no evidence of revocation.
The jury found the paper writing produced to be James Reel's will.
The defendant moved for a new trial, on three grounds: (1st) the rejection by the court of material and proper evidence; 2d misdirection of the court; 3d because the verdict was against evidence and law. The motion was overruled, and the judgment of the court pronounced, that the will was duly proved Whereupon, defendant appealed.
Gaston for the appellant.
Mordecai and Seawell for appellees.
We are of opinion that a new trial should be granted, because the declarations of the alleged testator were rejected. What weight they might have had with the jury it is not our province to decide; but, coming from a source not interested to declare anything but the truth, and not affecting the rights of others (for no one here could have an interest in the will), we are at a loss to perceive any solid grounds for their rejection, as the ascertainment of truth is the object of all trials.
The reasons assigned by the presiding judge are, in our opinions, entirely insufficient, although he is supported by two decisions in our sister States. When declarations of a party are offered in behalf of the person making them, on the ground of their being a part of the res gestae, it is when some of his acts are offered in evidence against him; and in order that the jury may view the whole transaction, what he says when he does the act is also to be heard, the declarations, being in law a part of the act itself.
But the declarations of a person affecting the rights of others can afford no rational ground of conviction that such declarations are true. To receive them in the case first put, when they affect only the party who makes them, and to reject them when they affect the rights of others, is conformable to the (268) object of all trials — the ascertainment of truth.
To our minds, to reject the declarations of the only person having a vested interest, and who was interested to declare the truth, whose fiat gave existence to the will, and whose fiat could destroy, and, in doing the one or the other, could interfere with the rights of no one, involves almost an absurdity; and (with due deference to the opinions of those who have decided to the contrary, we say it) they are received, not upon the ground of their being a part of the res gestae, for whether they accompany an act or not, whether made long before or long after making the will, is entirely immaterial to their competency. Those circumstances only go to their weight or credit with the tribunal which is to try the fact, and the same tribunal is also to decide whether the declarations contain the truth or are deceptive, in order to delude expectants and procure peace.
The English books are full of cases where the declarations of the testator were received, and without any objection as to their competency; generally the question being as to their weight. In Pemberton v. Pemberton, 13 Ves. Jun., 290, before two successive chancellors, the declarations of the party at various times were received; so in Warner v. Matthews, 4 Ves. Jun., 186. Nor is it an objection that in some of the cases it was not a question on the probate of a will, the will having already been proved in the spiritual court; but in cases where relief was sought under the will, the relief was objected to, because the complaint claimed under a will irregularly obtained. As was urged at the bar in this case, if the declarations of the testator were competent to be heard in the Court of Chancery to prevent relief being afforded under the will, they were competent to be heard on the issue devisavit vel non, the establishment of the truth being the object in each case.
For these reasons, and those given by Judge Spencer, (269) who, together with Judge Tompkins, dissented from the opinion of the Court, and because of the doubt which rested for some time on Judge Livingston's mind, we think we are bound to disregard the opinion of a majority of the Court in 2 Johns., 31, and also the case in 1 Gallison, 170. And, indeed, we have only to read the case in Johnson to cause us to pause long before we adopt a rule which, by its operation, would palm upon the world the writing there under consideration as the will of the deceased.
I am aware that some part of the reasoning in this case, although not important to a correct decision of the cause, impugns the case of Shenk v. Hutcheson, 4 N.C. 315. I then thought both the act and the declarations stood on the same ground, and that a weak prop was given to the declarations by making them part of the res gestae. Both or neither should have been received. A man's acts which he can perform are as much within his power as his words; in each case he was making evidence for himself. For these reasons, we think, there should be a New trial.
Cited: Howell v. Barden, 14 N.C. 444, 448; Patterson v. Wilson, 101 N.C. 597; In re Burns' Will, 121 N.C. 338; Evans will case, 123 N.C. 117; In re Shelton's will, 143 N.C. 221; Linebarger v. Linebarger, ib., 233.