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While declarations of a testator are not sufficient to establish the fact of undue influence, they are admissible to show its extent and effect.66 For this purpose, evidence was admitted to show that after making his will the testator said: “I don't know anything about it, they got around me and confuddled me; it is to be done over again."67 So declarations of the testator at different times within eight years before the will was made, were admitted to show that while he was in the presence of the person who was charged with having exercised the undue influence, he could not resist her; also a declaration the night before he died that he did not know but that he had been deceived in disinheriting his son.68 Diaries or letters written by the testator are received the same as oral declarations.69

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8 612. Declarations of One of Several Beneficiaries: Will Void

in Part Only. Where there are several beneficiaries under a will and it is charged that only one, or a part of them, unduly influenced the testator, the decisions are not harmonious as to whether or not declarations of a beneficiary charged with having coerced the testator's mind may be admitted in evidence. All beneficiaries under a will have an interest in it, but such interest is several, not joint, and under such conditions the general rule is that admissions of one, although against interest, are not to be received in evidence against the others.70 Some decisions hold, however, that declarations against interest should be received,

66 Rusling v. Rusling, 35 N. J. Eq. 120; Kitchell v. Beach, 35 N. J. Eq. 446.

67 Stephenson v. Stephenson, 62 Iowa 163, 17 N. W. 456.

68 Potter V. Baldwin, 133 Mass. 427.

69 Marx V. McGlynn, 88 N. Y. 357. See $ 363.

70 See § 366.

not as an admission against the other beneficiaries, but as evidence tending to prove the issue.71 Again, there are cases holding that admissions by a beneficiary against his interest, which establish the fact of undue influence exercised by himself, may be received in evidence against such beneficiary alone; and if the evidence is sufficient any devise or legacy in his favor may be stricken from the will and the remainder allowed to stand.72 If the legacies are separate and distinct, none in anywise depending upon the others, it has been said that fraud and undue influence by one beneficiary in procuring a legacy in his favor do not necessarily invalidate the whole will; and that where such conditions exist a will should not be refused probate as to the undisputed legacies without affording the legatees an opportunity to be heard.78 Thus fraud and undue influence on the part of one beneficiary in procuring a legacy in his favor have been held not necessarily to invalidate the whole will unless the bequest be so connected with the others as to affect the entire scheme of disposition.74

8 613. Declarations of Sole Beneficiary: Conspiracy.

It is a general rule that declarations of third persons, not a part of the res gesta, are inadmissible in evidence on the ground of hearsay; if against interest, however, they may be received. A statement by a beneficiary under 71 See $ 367.

pesley v. Homer, Turn, & R. 48, a.; 72 See $ 368.

Trimlestown V. D'Alton, 1 Dow. 73 Snodgrass v. Smith, 42 Colo. & C. 85; Florey's Exrs. v. Florey, 60, 15 Ann. Cas. 548, 94 Pac. 312, 24 Ala. 241; Snodgrass v. Smith, 315.

42 Colo. 60, 15 Ann. Cas. 548, 94 74 Allen v. Macpherson, 1 H. L. Pac. 312; Harrison's Appeal, 48 Cas. 191; Haddock v. Trotman, Conn. 202; Baker's Will, 2 Redf. 1 Fost. & Fin. 31; Guillamore v. (N. Y.) 179. O'Grady, 2 Jones & L. 210; Hip,

the will of facts showing or to the effect that he had unduly influenced the testator, is an admission against interest, and under the general rule such a declaration will be received in evidence. Upon the issue of undue influence, however, the question as to whether or not the declarations of a beneficiary charged with having influenced the mind of the testator, although against his interest, may be admitted in evidence will depend upon the facts of the particular case. If the person so charged is the sole beneficiary, his declarations may be introduced against him, since he is the only one affected; and such evidence is admissible as an admission against interest and also as bearing on his credibility if called as a witness.75 Where the pleadings and evidence show a conspiracy among all the beneficiaries to procure the will by undue influence, all of the beneficiaries would stand together and the declarations against interest of any one might be received in evidence against all.76

8 614. Declarations of Executor or One of Several Benefi

ciaries: Not Admissible in Evidence. The validity of a will is in question on an issue of undue influence. Although the will was procured through the wrongful acts of one beneficiary only, it is impossible to say to what extent the others might have been benefited had the unlawful influence not been exercised. Such influ

75 See $ 373; Saunders' Appeal, arises in a probate case, other 54 Conn. 108, 6 Atl. 193; Gordon acts besides the conspiracy to proV. Burris, 141 Mo. 602, 43 S. W. cure the will are also provable; 642; In re Miller's Estate, 31 Utah thus wrongful acts or schemes to 415, 88 Pac. 338, 343; Crocker v. obtain other property of the testaChase's Estate, 57 Vt. 413.

trix than her will may be given in 76 In re Strachan's Estate, 166 evidence.-In re Hermann's Will, Cal. 162, 135 Pac. 296, 298.

87 Misc. Rep. 476, 150 N. Y. Supp. When an issue of conspiracy 118, 133.

ence might have caused the disinheriting of an heir who otherwise would have received the bulk of the testator's estate, causing it to be divided among many beneficiaries who otherwise would not have been remembered. The weight of authority is against the admission in evidence of declarations of one beneficiary even as against himself.77 The same rule applies when such admissions are made by one named as executor.78

77 See $$ 369, 370; In re Dol. beer's Estate, 149 Cal, 227, 9 Ann. Cas. 795, 86 Pac. 695; In re Dolbeer's Estate, 153 Cal. 652, 15 Ann. Cas. 207, 96 Pac. 266; In re De Laveaga's Estate, 165 Cal. 607, 133 Pac. 307, 317; In re Snowball's Estate, 157 Cal. 301, 107 Pac, 598; Campbell v. Campbell, 138 Ill. 612, 28 N. E. 1080; In re Ames' Will, 51 Iowa 596, 2 N. W. 408; Fothergill v. Fothergill, 129 Iowa 93, 105 N. W. 377; Shailer v. Bumstead, 99 Mass. 112, 121; McConnell v. Wildes, 153 Mass. 487, 26 N. E. 1114; Wood v. Carpenter, 166 Mo. 465, 66 S. W. 172; Murphy v. Nett, 47 Mont. 38, 130 Pac. 451, 454; In re Myer's Will, 184 N. Y. 54, 6 Ann, Cas. 26, 76 N. E. 920; In re Fowler's Will, 156 N. C. 340, Ann. Cas. 1913A, 85, 38 L. R. A. (N. S.) 745, 72 S. E. 357.

In Blakey's Heirs V. Blakey's Exx., 33 Ala. 611, it was said: “It is the settled law of this court that the declarations and acts of a proponent, who is not the sole legatee, are not admissible in evidence to defeat the probate of the will."

78 "It seems that he had influence over the testator-a very potent one-and his declarations, if competent, are sufficient to warrant a finding by the jury of undue influence, as he had the power to subdue the will of the testator to his own; but the vital question is, Does the law authorize him to speak for and conclude those who have not joint interest with him? We think not, and the best-considered authorities we believe to be against the competency of such evidence. It is undoubtedly true that the declaration of the executor would be competent against him to show that he is unworthy of the trust reposed in him and therefore should be removed from his office and deprived of its emol. uments; but to permit him to prejudice the rights of others acquired independently of his, and several in their nature, might open the door to fraud, and would shock our sense of justice and right; and this court has virtually held that such declarations are not admissible to invalidate a will where the interests of the declar

8 615. Testator's Knowledge of Contents of Will: Presump

tion,

will;

Ordinarily it need not be proven that the testator was acquainted with the contents of his will, unless the question is raised and some circumstance or evidence seems to point to the contrary.79 If the testator possess testamentary capacity, knowledge of contents will be presumed from the due execution of the instrument.80 The legal presumption in such cases is always in favor of the

and he who seeks to impeach it must show conclusively that the testator was imposed on, or that there was some mistake, whereby he was deceived.81 If the evidence shows that the testator did not read the will himself, as where it was not in his possession and he had no opportunity, or where he was so weak and low as to be unable to do so, or was blind, or where for any reason bis ability to read was doubtful, the burden of proof is ant and the beneficiaries under 80 Smith v. Dolby, 4 Har. (Del.) the will are not joint and there 350; Downey v. Murphey, 18 N. C. is no relation of privity between 82; Carr v. McCamm, 18 N. C. 276; them."-In re Fowler's Will, 156 Pettes v. Bingham, 10 N. H. 514; N. C. 340, Ann, Cas. 1913A, 85, 38 Day v. Day, 3 N. J. Eq. 549; Stew. L. R. A. (N. S.) 745, 72 S. E. 357. art's Exr. v. Lispenard, 26 Wend.

79 Fulton V. Andrew, L. R. ? (N. Y.) 255, 287; Hoshauer v. H. L. 448; Beall v. Mann, 5 Ga. Hoshauer, 26 Pa. St. 404. 456; Gaither V. Gaither, 20 Ga. 81 Pettes v. Bingham, 10 N. H. 709; Patton v. Hope, 37 N. J. Eq. 514; Day v. Day, 3 N. J. Eq. 549, 522; Vernon v. Kirk, 30 Pa. St. 551. See, also, Mealey's Estate, 218, 268. See, also, Browning v. 11 Phila. (Pa.) 161, 162; Combs' Budd, 6 Moore P. C. C. 430, 435. Appeal, 105 Pa. St. 155, 160.

Compare: Layman v. Conrey, 60 A will entirely in the handwritMd. 286.

ing of the testator is conclusive As to knowledge of contents of proof that the testator knew its will, see § 409.

contents.-In re De Hart's Will, As to presumption that testator 67 Misc. Rep. 13, 122 N. Y. Supp. knew contents of will, although he 220. signed by mark, see $ 431.

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