The trial in this case was had, on an issue from the register’s court of Lebanon county, to decide on the validity of a certain writing, exhibited as the last will and testaiiaent of Michael Miller, deceased. The defendants offered evidence to prove, that John Miller, one of the plaintiffs in the issue, and a devisee in the writing set up as a will, had, after the execution of the said writing, “ by various dis- “ courses, intimated, that he had procured the said will to be “ made, and that the same was read to him, and that he had “ given the reasons why his brothers and sisters had got so “ small a portion.” This evidence was objected to by the counsel for the plaintiffs and rejected by the Court, to whose decision an exception was taken. A question has been made, whether any declarations of one of the devisees in a will, are evidence against the other devisees. This question, it is unnecessary to decide, because it appears to me, that the evidence offered, was so vague, indefinite, and immaterial, that it ought not to have been received. It was not even offered to be proved, that John Miller had said, that he procured the will to be made, but only that he had intimated it. Besides, the procuring a will to be made, unless by foul means, is nothing against its validity. Neither was it at all material, that the will was read to John Miller, or that he had given the reasons why his brothers and sisters had got so small a portion. Hearing the proof of all these things would have been wasting time to no purpose. A man has a right, by fair argument, or persuasion, to induce another to make a will, and even to make it in his own favour. If any improper artifice or fraud had been practised, and it was intended to prove, that John Miller had confessed it, it should have been so stated. The Court is not to presume, that any thing else will. be proved, than what is opened by the party who offers the evidence. In this case, what was opened was irrelevant, and I am, therefore, of opinion, that the evidence was properly rejected.
Gibson J. concurred. Duncan J.The evidence offered on this issue, to try the *270validity of a paper purporting to be the last will of Michael Miller was, that John Miller, a devisee and plaintiff, and the person with whom the testator had lived, had, by various discourses, intimated, that he had procured the will to be made ; and that the will was read’ to him ; and that he had given the reasons why his brothers and sisters had got so small a portion.
The evidence was offered in too loose a shape. What discourse had John Miller ? What did he say ? The discourses and conversations are not stated. Intimation is a conclusion from some thing said — that something should have been stated ; “ intimated, by his discourse, that he had “procured the will to be made.” How intimated? By what means procured ? Is it pretended, that John Miller intimated, that he had procured the will by unlawful means? Influence, persuasion, may be fairly used. A will may be honestly procured. Many wills, indeed, would be destroyed if you inquire into the degrees of influence and persuasion. A will procured by circumvention, will be set aside ; but a will procured by honest means, by acts of kindness, attention, and by importunate persuasion, which delicate minds would shrink from, would not be set aside on this ground alone. Having the will read to him, and the reason he gave why his brothers and sisters had so small a portion, surely this could not be material evidence to invalidate the will. If the testimony offered ought to have had no weight with the jury; tended to prove nothing pertinent to the issue ; it would be immaterial. If immaterial it has properly been rejected. It would tend to protract a trial, to confound a jury, were all idle, loose, impertinent, and immaterial conversations of a partyto be received in evidence. It would embarrass, perplex, and confound the jury; render the trial tedious and expensive, without shedding one ray of light on the issue. If this evidence was admitted to be heard by the jury, the Court must have directed the jury to discard it from their minds. It was, therefore, most properly rejected in the first instance, and the judgment must stand.
Judgment affirmed.