We are so entirely satisfied that the pretended will is a forgery, that we do not deem it necessary to consider the question, whether it could be probated in Madison county, if genuine. We do not reach that point in the investigation.
The first question which we shall examine is, whether Catharine Marti’s declarations were admissible to prove that the will was a forgery. She is the sole legatee in the will, and the only person on earth who can have the least possible interest in sustaining it. It would be strange indeed, if her declarations, made directly adverse to this interest, could not be listened to in a court of justice. To stop to reason upon so bald a proposition seems to us like a waste of time. It is sufficient to refer to 1 Greenl. Ev., § 180.
All the testimony shows that she was on board the boat on which the supposed testator and his brother died when on their way from New Orleans to St. Louis. Two witnesses testify that she told them that in hunting up the things of the deceased brothers, after their death, she found a draft belonging to them. That after she got to St. Louis, she, with two men, tried to sell the draft, but could not. That, if they had sold the draft, she was to have gone up the river with them. That she had been a woman long enough. That when they found they could not sell the draft, then those men made the will in St. Louis. That she was affianced to Caspar, the brother of the supposed testator, at the time of his death.
Now this is the testimony, in open court, in opposition to the depositions of two witnesses who are said to reside in Missouri, and who purport to be the subscribing witnesses to the will, who testify that they saw the testator execute it as his will, and that one of them wrote it for him, and at his request, so soon as he was taken with his last sickness. In addition to this is the testimony of the father of the legatee, who says he was acquainted with the hand-writing of the testator and believes his signature to the will to be genuine.
There is undoubtedly a clear case of perjury on one side or the other of this case ; and we are driven to the necessity of adopting the testimony of one set of witnesses and rejecting that of the other. And, by the rules of law, we should be inclined to, believe those who prove the will to be genuine, rather than that it is a forgery. Tet, as strongly as we feel this inclination pressing upon us, all the surroundings of this case, and all the detail of circumstances shown by the record, constrain us to believe, and that, too, very clearly, that the legatee did make the statements testified to by the witnesses, and that the will was got up in St. Louis long after the death of the supposed testator. It is true, an attempt was made to impeach the credibility of one of the witnesses who testified to this conversation, but her character for truth and veracity was abundantly sustained.
We are of opinion that the judgment of the Circuit Court, reversing the order of the County Court admitting the will to probate, was correct, and that judgment must be affirmed.
Judgment affirmed.