[No. 8.

of the evidence and the law as stated to you by the court, you will decide the question of undue influence — remembering that it must be operative at the time the will was made, and was the cause of the will; and without the operation of the undue influence, a different disposition of the testator's property would have been made; and that the undue influence prevented it.

"The leading point in this case seems to me to be whether the testator, at the time he made his will, was laboring under an insane delusion as regards the relations that existed between his wife and son-in-law, Henry Long, and Mr. Long's conduct in relation to it." .

After again referring to the evidence, the court said:

"From the testimony of Mr. Deatrich, that of Moses Hartman, and that of the defendants, it is contended that the will was made under the insane delusion that the wife of the testator, a woman over eighty years of age, and who had lived with the testator for perhaps half a century, was the paramour of his son-in-law, Henry Long, one of the defendants. If the testator, at the time he made the will in question, without any foundation to rest it upon, labored under the idea that such a state of facts existed, it was a most monstrous assumption, and could only be the creation of an unsound mind; and any testamentary disposition made under the influence of such a delusion is not worth the paper it is written upon; and ought not to be established as a last will and testament.

"The jury will then inquire, Was the paper in question the offspring of such an insane delusion? And, in determining the question, they will ascertain, from the evidence, whether or not such a delusion existed.

"If the jury find, from the evidence, that Mr. Bowman labored under the insane delusion that his wife, over eighty years of age, had illicit intercourse with her son-in-law, and Mr. Long allowed it, or did not discourage it; and, under the influence of this insane delusion, it operated upon him at the moment he made the will; and it induced him to disinherit his only daughter and child, and give nothing to his wife; the will ought not to be sustained, and your verdict ought to be for the defendants." The verdict was for the defendants.

The plaintiff took a writ of error. He assigned for error:

1, 2. Admitting of evidence of declarations of the decedent to Mr. and Mrs. Long, as to plaintiff's importunity with decedent to make a will. 3. The answer to plaintiff's sixth point.

4, 5. The answers to defendants' fourth and sixth points.

The declarations of testator

6. The part of the charge in brackets. R. G. McCreary, for plaintiff in error. may be admissible to show his condition of mind, but not as evidence of the facts declared or stated, unless part of the res gesta. Greenleaf Ev. sect. 108; Jarman on Wills, 77. The declarations proved do not tend to show undue influence operative at the date of the will. The testimony of Henry Long related to a time eighteen months before the will was made, and that of Hannah Long six months before. Eckert v. Flowry, 7 Wright, 46; McMahon v. Ryan, 8 Harris, 329; Jarman on Wills, 37, 41; Thompson v. Kyner, 15 P. F. Smith, 368; Moritz v. Brough, 16 S. &. R. 403. They proved, at most, only persuasion or importunity, which, when established, do not constitute undue influence such as would avoid a will. Miller

Vol. II.]

TAWNEY V. LONG.

[No. 8.

v. Miller, 3 S. & R. 267. The statements, taken altogether, show that the importunity had no effect on testator, and no conclusion of undue influence could be legitimately drawn from them. Evans v. Mengel, 1 Barr, 68; Haines v. Stouffer, 10 Ib. 363.

There is no other testimony in the case tending to sustain the allegation, and it is distinctly disproved by the plaintiff. It is error to permit the jury to pass upon a matter of which there is no evidence, or to base a verdict on circumstances which do not justify their conclusion. Switland v. Holgate, 8 Watts, 385; Sartwell v. Wilcox, 8 Harris, 117; Kelly v. Kauffman, 6 Ib. 351; Evans v. Mengel, 6 Watts, 72; Urkett v. Coryell, 5 W. & S. 85.

W. A. Duncan, for defendants in error. The decedent's declarations were admissible as circumstances tending to show undue influence. Rambler v. Tryon, 7 S. & R. 90; and, although the acts had occurred a length of time previously to the execution of the will. Reeme v. Parthemere, 8 Barr, 460; McTaggart v. Thompson, 2 Harris, 153; Watterman v. Whitney, 5 N. Y. 165; 1 Redfield on Wills, 115, 504, 509; Titlow v. Titlow, 4 P. F. Smith, 221. As to the answers to the points he cited, Boyd v. Boyd, 16 P. F. Smith, 294. As to the sixth error, Eckert v. Flowry, 7 Wright, 46; Thompson v. Kuner, 15 P. F. Smith, 368; 1 Jarman on Wills; 1 Redfield on Wills, 481; Zimmerman v. Zimmerman, 11 Harris, 378; Dean v. Negley, 5 Wright, 312.

Mr. Justice GORDON delivered the opinion of the court, October 12, 1874.

It is quite probable that in October, 1871, the mind of John Bowman was so unsound as to be incapable of properly disposing of his estate by will. At all events there was evidence thereof sufficient to submit to a jury. On this branch of the case the ruling of the court was strictly correct. Not so, however, on that which relates to the question of undue influence, as an operative cause affecting the old man in the disposition of his property.

The evidence offered for this purpose was wholly insufficient, and should have been rejected.

In treating of this branch of the case, we must treat of it as a distinct issue, for if it be found that the testator was of unsound mind, then the question is determined against the will, and we proceed no further; but if on the other hand this question be determined in favor of the testator's testamentary capacity, then, and then only, do we consider the proposition involving the subject of undue influence.

However, then, the fact may be, and that fact is hereafter to be determined by a jury, we must, for the present purpose, treat the case as though the testator's insanity were proved. What then is there in the evidence to show that John E. Tawney improperly influenced John Bowman in the disposition of his property? That he treated the old man, who by marriage was his uncle, with kindness; that he permitted him to remain at his house; that he bailed him and assisted him when sued by his wife and son-in-law, indicates but ordinary acts of friendship, towards a frail old man, rendered necessary from the very circumstances thrown around him by the defendants themselves, but in nothing does it exhibit that corrupt and unlawful influence which amounts to constraint, and

Vol. II.]

TAWNEY v. LONG.

[No. 8.

So we

which substitutes the will of another for that of the testator. have no evidence, except that of Tawney himself, that Bowman ever spoke to him, or he to Bowman, about a will. We give in extenso what he says upon that subject. "The day before we come to town, I had a conversation with the old man about making the will. He told me in front of his room he had been thinking about making his will and fixing his things. He did not know whether he could make a will or not; that if he got like old Mr. Slagle, his property might not reach to keep him. I told him if I was in his place, I would take the good of what I had while I lived, and if there was anything left it was his own, and he could do with it as he pleased."

Again: "After that Bowman called me into the office, and told me he had made up his mind to make a will. He always thought he might give Jake something. He told me the way he was fixed he did not know what to do about it. He asked me what he ought to do about it. I told him if he wanted to give Jake something, he could make it so that his debts and funeral expenses should be paid first, and then he could give Jake whatever he had a mind to; if nothing was left, there would be no harm done."

This testimony does not even raise the idea of solicitation, much less that of improper or fraudulent conduct upon the part of Tawney. It contains but the advice one prudent and cautious neighbor might give to another under like circumstances.

Then we have the declarations of the testator himself, as found in the testimony of Henry Long and his wife; "that John E. Tawney was dingdonging at him to make his will, and leave all he had to him and his family."

But these declarations prove nothing but such solicitations as do not affect the validity of a will. Even importunate persuasion from which a delicate mind would shrink, will not invalidate a devise. Miller v. Miller, 3 S. & R. 267. But beyond this these declarations are too remote from the time of execution, and are not so connected with other facts and circumstances indicating circumvention or fraud in the procurement of the will as to make them part of the res gesta, and are therefore not evidence. 2 Greenl. Ev. part 4, sec. 690; McTaggart v. Thompson, 2 Harris, 149.

We cannot think, therefore, that all this evidence taken together was sufficient to raise such a question of undue influence as should have been submitted to the jury. Undue influence, of that kind which will affect the provisions of a testament, must be such as subjugates the mind of the testator to the will of the person operating upon it, and in order to establish this, proof must be made of some fraud practised, some threats or misrepresentations made, some undue flattery, or some physical or moral coercion employed, so as to destroy the free agency of the testator, and these influences must be proved to have operated as a present constraint, at the very time of making the will. But constraint is not to be inferred from mental weakness alone, though the weak mind may be more readily constrained and deceived than the strong one; and though it is to be considered as a fact in determining the question of constraint, nevertheless, as is said in McMahon v. Ryan, 8 Harris, 329, that undue influence,

Vol. II.]

CULLEN V. THE COMMONWEALTH.

[No. 8.

which suffices to destroy an alleged will, is distinct from weakness and has no necessary connection with it.

So it has been held that general bad treatment furnishes no evidence of such influence, and we may add, neither does general kindness, though this may have a powerful influence upon a weak mind, unless it is shown to be part of a crafty arrangement to procure the testamentary disposition. Thompson v. Kyner, 15 P. F. Smith, 368; Rudy v. Ulrich, 19 P. F. Smith, 177; Eckert v. Flowry, 7 Wright, 46.

From the above statement, it is obvious that the case in hand is utterly barren of evidence tending to show undue influence as the cause which operated on the mind of John Bowman to produce the disposition of his property complained of by the defendants. It follows that the court erred in not answering the plaintiff's sixth point in the affirmative.

Judgment reversed, and a venire facias de novo awarded.

COURT OF APPEALS OF VIRGINIA.

(To appear in 24 Grattan.)

RIGHT OF WITNESS TO DECLINE TO ANSWER WHERE ANSWER WILL CRIMINATE HIM.

DUELLING.

CULLEN v. THE COMMONWEALTH.

1. By the 8th section of the Bill of Rights of Virginia a person is not only secured against giving evidence against himself on his own trial, but he cannot be required on the trial of another, to testify, if his evidence will tend to criminate himself.

2. Even if a person might be required to give evidence on the trial of another which might tend to criminate himself, if the statute afforded him a complete indemnity, by discharging him from all prosecution for the offence (of which quære?), the Act of October 7, 1870, amending § 1, ch. 12, of the Code of 1860, does not afford that indemnity; and, therefore, in requiring any person engaged in a duel to testify against another prosecuted for having fought, &c., such duel, is unconstitutional.

3. The fact that the witness has testified before the coroner, and stated the facts, does not deprive him of his privilege; and that having been done without being advised of his privilege, it is not a waiver of it by him.

4. Under the principles of the common law and the statutes against duelling, it may well be apprehended that the surgeon of a party to a duel would be regarded in law as being concerned in, or as aiding and abetting the duel.

AT the July term, 1873, of the hustings court of the city of Richmond, an indictment was sent to the grand jury against John S. Meredith, Wm. L. Royall, Wm. R. Trigg, and Wm. B. Tabb, for the murder of John B. Mordecai; and Dr. J. G. Dorsay Cullen was sworn and sent with other witnesses to the grand jury to testify in relation to the case. Before the grand jury Dr. Cullen was asked to state what he knew of a duel between W. Page McCarty and John B. Mordecai, near Oakwood Cemetery. To this inquiry Dr. Cullen declined to answer; and this refusal having been communicated to the court by the grand jury, he was brought into court, and declared that he so declined because the answer to said question would tend to criminate him.

Vol. II.]

CULLEN V. THE COMMONWEALTH.

[No. 8.

The attorney for the commonwealth then moved the court that Dr. Cullen be compelled to answer the question. Upon this motion evidence was introduced for the purpose of showing that Dr. Cullen's conduct in relation to the duel was such as that his evidence could not criminate him; and the testimony given in by him before the coroner's inquest, which had been reduced to writing and signed by him, was also introduced for the same purpose, and also to show that having voluntarily testified before the coroner's inquest, he had waived his right, if it existed, to decline to testify in the case.

After hearing the evidence the court ordered that Dr. Cullen should answer the said question propounded to him by the grand jury in relation to the said duel. And Cullen still declining to answer the question, the court ordered that he be committed to the jail of this city for the space of one day, and that he pay a fine of fifty dollars for his said contempt. To this judgment Dr. Cullen excepted, stating the evidence in his exception; and applied to a judge of this court for a supersedeas; which was allowed. Crump & Ould, for the appellant.

The Attorney General, for the commonwealth.

BOULDIN, J., delivered the opinion of the court.

Doctor J. S. Dorsay Cullen was sent before the grand jury of the hustings court of the city of Richmond to give evidence on behalf of the commonwealth on an indictment charging John S. Meredith, William L. Royall, William R. Trigg and William B. Tabb with the murder of John B. Mordecai, as principals, in the second degree, and accessories before the fact, the actual killing being charged to have been accomplished by W. Page McCarty. When Dr. Cullen appeared before the grand jury the following question was propounded to him : "State all you know in regard to a duel alleged to have taken place on the 9th day of May last, near Oakwood, between W. Page McCarty and John B. Mordecai?" Dr. Cullen declined to make any disclosure on the subject to the grand jury, saying to them in substance as follows: "I must decline to answer the question because my answer thereto will criminate myself." The witness was then brought before the hustings court, and still insisting on his right to decline to answer, that court, after hearing testimony, ordered the witness to answer the question. He again declined for the reason already stated; whereupon the hustings court adjudged him guilty of a contempt, imposed on him a fine of fifty dollars, and ordered him to be imprisoned for one day.

To that judgment Dr. Cullen applied for and obtained a writ of error and supersedeas from one of the judges of this court, on which the case is now before us. The question is, was Dr. Cullen guilty of a contempt of the hustings court in refusing, for the reason stated by him, to make the disclosure called for by the grand jury and ordered by the court?

It is insisted by his counsel that he was not, because he has a right guaranteed by the Constitution of the State, of which neither legislature nor courts can deprive him, to refuse to answer any question, the answer to which would tend to criminate him; and such it is contended would be the effect of an answer to the interrogatory propounded. Is there such constitutional right?

The right to refuse to answer such questions before any judicial tribu