dissented from the decision of the court on the admissibility of this evidence and expressed the view that on the issue of forgery of a will, the declarations of an attesting witness, made subsequent to the attestation are inadmissible to impeach the factum of attestation.
In the case of Gibson v. Gibson, 24 Mo. 227, where it was sought -to invalidate a will on the ground that the alleged testator was under undue influence, and was at the time of signing the will of unsound mind by reason of intoxication, and proof was offered of declarations made by him to the effect that he had never signed the will and that if he had signed it he was drunk and had been made to do it, the court said: “The just result of the whole matter, we think, is, that these declarations, so far as they are relied upon to furnish evidence of the facts they contain, are mere hearsay, and that there is no ground, either of authority or reason, to exempt them from the rule of law excluding all such testimony. We repeat, however, what we have before remarked, that as mere verbal facts, external manifestations of what is passing within, they are always evidence of the testator’s intellect and affections, for the time being, provided they are of such a character, either by themselves or in conjunction with other evidence, and are so connected with the making of the will in point of time, as to furnish any reasonable ground of judgment in reference to the testator’s mental condition at that time. Accordingly, in Norris v. Shepherd (20 Pa. 475), where a person absent from home had by will disposed of all his property to a mere stranger, after other evidence of insanity at the time, and that the testator lived on amicable terms with his sisters, who were his nearest relatives, had been given his declarations, made to a friend just before leaving him, in reference to insuring his life, in which he said: “I will not, as the little I have will go to my"sisters, ’ ’ were allowed as evidence of the state of his affections towards them, in order to strengthen the proof of insanity then before the jury; the court remarked that, under the circumstances of that case, the kind relations of the testator with his kindred was proper evidence, and that these relations could only be shown by the testator’s acts, and declarations towards them. So again in Waterman v. Whitney (1 Kernan, Rep. 157) the question was as to the mental capacity of the testator, and after evidence showing that his mind and memory were impaired at and previous to the time of making his will, and that he had not sufficient capacity to make a will, proof was offered and rejected in the original court that the testator had afterwards stated to the witness, and repeated to others, at different times up to his death, how he had disposed of his property in his will, which was in a manner entirely different from the actual disposition of it by the will in question. Rut upon an appeal the evidence was held admissible, taken in connection with the other evidence in the cause, as a mere fact, showing the want of mental capacity, without any regard to the credit due to it as an assertion of fact; and whatever may be thought of the correctness of the particular decision, the court expressly recognized, and indeed professed to act, upon the distinction to which we have referred between receiving a testator’s declarations as evidence of the asserted facts, and allowing them in evidence as mere facts, indicating of themselves the mental condition of the testator at the time they are made. It may frequently be a nice question to determine whether the declarations furnish any reasonable grounds for a just judgment in reference to the condition of the testator’s mind at the time; and even supposing they do, the question still remains whether his mental condition at that time — whether before or after the date of the will — reflects any light upon it when the will was made, which is the point of time to which the ultimate investigation must be confined; but there can be no difficulty, we think, as to the general rule of law applicable to all such cases.”
The case of Travellers Ins. Co. v. Mosley, 8 Wall. 397, was a suit on an accident policy and the question was whether assured died from an accidental fall downstairs, or from natural causes, and proof was admitted showing complaints and declarations- of the assured as to bodily injury and pains and the court said, “ Whenever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings are original and competent evidence. Those expressions are the natural reflexes of what it might be impossible to show by other testimony. If there be such other testimony, this may be necessary to set the facts thus developed in their true light, and to give them their proper effect. As independent, explanatory or corroborative evidence, it is often indispensable to the due' administration of justice. Such declarations are regarded as verbal acts, and are as competent as any other testimony when relevant to the issue. Their truth or falsity is an inquiry for the jury.” 8 Wallace, 408.
In the case of Hester v. Hester, 16 Atl. 345, it was said: ‘ ‘ The declarations of the testator, made within a reasonable time before and after the execution of the will, have always been received in evidence upon a question of testamentary capacity, to show the state and condition of the testator’s mind; and, if reasonably connected in point of time with the testamentary act, we can not see any reason why they would not be admissible to establish the same.fact in an issue raised upon the exercise of fraud and undue influence in the procurement of it. Such declarations can not have any force, however, in establishing the substantive fact of undue influence.”
Shonler, in his work on Wills, at page 119, says: “Many decisions, not altogether harmonious, relate to the testator’s declarations in issues of the present kind (issues relating to fraud, force, or undue influence). The general rule is that a testator’s previous declarations are admissible, within a liberal range, for the purpose of throwing light upon his mental condition, his exposure to constraint or fraud and the surrounding circumstances of the testamentary act.”
In Bush v. Bush, 87 Mo. 485, where proof was offered touching declarations of a testator prior to the making of his will which indicated an intention to make a disposition of property contrary to the one made in the will, it was said: “Such evidence was inadmissible as a narrative of facts, but admissible when the condition of the testator’s mind is the point of contention, or it becomes material to show the state of his affections, and they are then received as external manifestations of his mental condition and not as evidence of the truth of the facts he states.” '
Professor Wigmore in his work on Evidence,' vol. 2, § 1768, says: “The prohibition of the hearsay rule then does not apply to all words or utterances merely as such. The hearsay rule excludes extra-judicial utterances only when offered for a special purpose; namely, as assertions to evidence the truth of the matter stated.”
Accordingly, if it were conceded that Frankring had in fact signed his name to the request for change of beneficiary or that he had authorized Pinchbaek to do so for him, then without question, the objections of appellant would have been well taken and a reversal would, be ordered on that account. But these declarations are admissible to show that he had, in fact, made no request for change of beneficiary. If such declarations are admissible to show the absence of testamentary capacity, why, then, should they not be received to show that the will was forged, or as in this case, that the request was forged. The purpose and effect in both cases of such evidence is to show that there was no valid signature. The issue, in fact, here involved is that of the forgery of Frankring’s name and the jury must necessarily have found that he knew nothing about this request for change of beneficiary. It was not offered for the purpose of showing that Frankring desired to make a disposition of his certificate other than the one which was accomplished by the request for change of beneficiary, but was offered for the purpose of showing that he had not made the request at all. In no other way was it possible to contradict Pinchbaek and without this proof it would have been arbitrary for a jury to have disregarded his uncontradicted statements, while the evidence inferentially does contradict him and prevents the certainty of a great injustice being done Frankring’s infant children. And we conclude that the court did not err in its action in allowing the jury to consider this evidence and to pass upon its weight and the judgment is accordingly affirmed.
McCulloch, C. J., and Kirby, J., dissent.