Curia, per
The 1st, 5th, 7th and 8th grounds of appeal are sufficiently answered in the report of the presiding Judge.
As to the 3d and -4th grounds. The evidence admitted was of declarations of the testator at the partition of Col. Wm. Farr’s estate, and was admissible to shew the intention which he then had as to the future disposition of his property; a circumstance fit to go to the jury, but feeble in proportion to the distance of the time from the date of the paper in question.
As to the 6th ground. Of the declarations of Fan, only those were admitted which were made when the testator was present, and with them went evidence of his being intoxicated at the time, which the jury must be supposed to have considered in deciding what weight to give to his seeming submission to the authority over him implied by the declarations.
As to the 13th ground, A special verdict maybe found by consent of parties, or by the direction of the Judge, or at the discretion of the jury, but cannot be claimed of right by one party; and a special verdict must find facts, and not the evidence tending to establish them.
As to the '10th ground. William Mansfield proved nothing which was in itself material to the case, but simply what reconciled Mrs. Mansfield’s testimony with the seem
The 2d ground objects to the verdict because D. A. Thomas, who was one of the persons that approved the validity of the will before the Ordináry, and appealed from his decision, now appears, from the proof that was made upon the trial of the appeal in the Circuit Court, to have no interest in the question; and it is insisted for the executor that the verdict is by this proof shewn to be wrong, and that this court is bound to send the case back for trial between the true parties in interest, freed from the embarrassment and improper influence which the misjoinder must be presumed to have produced; and this, although the objection for want of interest is now taken for the first time. The fatal effect of misjoining with a real plaintiff one who has no interest, in ordinary cases, whether at law or in equity, is established by abundant authority. 1 Bail. 306 ; 4 Russ. 225; 3 M. <fe K. 450. But this is an appeal (taken before the Act of 1839,) from the Ordinary’s decree, as to an executor’s right to have probate of a will; and so far as a contrary course is not directed by our statutes- or practice, must be governed by the principles which in similar cases direct the English Ecclesiastical courts. All grants of probates are proceedings in rem, and prevail against all persons wherever the power which granted them extends, whilst they subsist unrevoked; they are liable to be reviewed, if not granted in solemn form; and when so granted are conclusive against all persons cited or privy to the proceedings. Swinb. 807, note; 2 Phil. 212. The denial of probate affects the executor, and those represented by him, but decides nothing as to the rights of persons claiming to be next of kin. It is for the advantage of an executor, that in a contest as to the validity of the will which appointed him, all persons Avho may have interest, as next of kin, or legatees under another will, should be cited, so that if successful, he may not be again put to proof; and it is desirable for those Avho really have interest, that no strangers should be allowed to intrude upon the proceedings, so as to increase delay and expense, or to exclude material testimony, or to introduce unnecessary prejudices.
The 9th, 11th and 12th grounds, which object to the charge of the Judge, and the sufficiency of the evidence, will be considered together. The statutes under which the appeal from the Ordinary was taken in this case, (7 Stat. 295, 256, 220,) require “errors” to be assigned, and matters of fact to be tried by a jury.. By our practice, under these statutes, upon an appeal from the decree of an Ordinary, as to the validity of a will, a trial de novó is had according to the rules of the common law, under an issue framed so as to be suitable to the decision of a jury. The tendency which juries have manifested, to restrain the right of testamentary disposition, by setting aside, upon slight proof, wills which seem to them unequal or unsuitable, is to be guarded against by clear expositions of the law from the circuit judge, and the interference of this court
The motion for a new trial, is therefore dismissed.
The former decision, referring this case again to the trial by jury, was well considered.
But in a case which has excited much interest, and in ivliich my own opinion has been, at least in one respect, changed, I would not lose the opportunity of offering my own views of its legal principles and proper merits.
1. It is a plain principle of law, that where any estate, in land or personal property, is given, whether by bequest or deed of conveyance, subject to a condition, inconsistent with the legal character and use of the estate, such condition is null and void, and the estate is left, unqualified, in the hands of the legatee or donee.
This is a rule inseparable from the meaning of property, or the lawful dominion of men over its subject matter. Yet, an error seems to be lurking, respecting one species of property. That by calling such condition a trust,
But it is plain that such a so called trust would be a condition incompatible with the right to use the property for its legal ends. It would be a trdst for the use of the property itself, not for a third party, which would destroy the right of the donee for any particular use or civil dominion of his own.
You might by such a device give the agency of the do-nee to the slaves. But how could it be called giving the use of the slaves to the donee ?- If the former, the contract would constitute the emancipation of the slaves. But this the law prohibits. We are obliged, therefore, in order to suppose the donation, to adopt the other construction, and give the slave to the donee; and of course, under the rule just noticed, without the incompatible condition aimed at; otherwise you either run into the- construction so repudiated by our laws, or must hold the donation null and void.
But this last is always to be avoided. If you can give any contract a sensible and legal construction, it is good to that extent, upon the undoubted principle that private interest is to be sacrificed to a public object only to the extent absolutely necessary. (Black. C. 29.) This rule in favor of vested rights supports the bequest to the extent that the testator had a legal right to give, and does not destroy his will, because he wished to go further. If such a bequest had been of a horse in trust, that all his earnings should enure to his own keep, clothing and currying, every one would perceive how inconsistent such a condition would be with any property in the horse. But if the law expressly prohibited that a horse should be endowed with such a priviledge, how much stronger would the case be. Yet, still, the testator would have a right to bequeath his horse to any legatee, and the trust intended would be no more than a moral injunction to treat the horse well.
And such is the primary rule for the construction of all such wills as W. B. Farr’s, which would qualify the strict legal ownership of the legatee of slaves, in favor of the
For the present, I proceed to the second subject I would consider.
2. Verdicts setting aside last wills, upon the grounds of mental weakness, or of undue influence, practised upon the testator, have become somewhat frequent; I would therefore give my understanding of the requisitions and rules of law, applicable to such cases.
The general rule is, that the testator must be of “sane memory and reasonable mind,” in order to make a last will of his estate; and that he shall have been of a “disposing mind,” at the time and in respect to the particular will offered for probate.
The rules of law, taken from many adjudications, and generalized (see 4 Co. 126; Rich, on Wills, 40; Brev. tit. 3, p. 100; Swinb. 474; Bac. 7 vol. 302 ; 2 Black. 497; 4 Dane, p. 560, (fee. (fee. and recognized by Judges, in order to point out certain exceptions to the general right of making last wills,) are summed up by Roberts on Wilis, p. 30, in the following words: “No person who is.not of a reasonable mind and sane memory, can make any disposition by will. Therefore an idiot, or person deprived of his faculties, by extreme age, or by intoxication, while the paroxism endures, is not of reasonable capacity in law,” (fee.
“And (p. 31,) the rule is clear, that there must be the animus testandi, (mind disposed to make a will,) or the instrument, purporting to be a will, is of no effect in the law. The parties must therefore be free and under no compulsion from such threat or violence as may reasonably be supposed to move a constant man.” Coke says, “a
Bacon (v. 7, p. 301,) lays down the same general rules, and concludes thus: “It is requisite, when the testator makes his will, that he be of sound and perfect memory, i. e. that he have a competent memory and understanding, to dispose of his estate with reason.”
Blackstone does the same. (2B1. p. 417.) He says: “Such persons as are born deaf, blind and dumb, who, as they have always wanted the common inlets of understanding, are incapable of having the animus testandi, and their testaments are therefore void.” The reason given by Blackstone, that such testators lack the inlets, (i. e. the chief senses,) to human knowledge, gives the clue and guide to the meaning of “sane memory'and reasonable mind.” According to such reason, by looking into the rules as laid down, and the adjudged cases from which they have been drawn, we .plainly perceive the principle of their requisitions. There are four requisitions that relate the three first to the mind or intellect, and the last to the free will of the testator. If possessed of the required understanding, and his moral will be unconstrained by extrinsic influences, he then may make a last will of his property.
In applying such rules to the competency of a particular (estator, it is not surprising that the Judge and the jury often differ.
The rules themselves do not express their own exact meaning very clearly, and are to be applied to the competency or incompetency of the human mind, and its will, as deduced from reasoning; both of which are difficult of investigation and of clear comprehension.
In most countries these rules are applied by the Judge alone. And the object of the following exposition is intended to render them less obscure, by defining their meaning separately.
As to the first requisition: It is plain that to be of the “sane memory” required, the testator must have been of mental capacity, to perceive and recognize external facts and things, in the manner of men in general; i. e. through the medium of his senses. These are “the inlets to the understanding,” noticed by Blackstone. Wanting sight,
The perception of facts, through the senses, is then, the first faculty or operation of the mind required by law; and it is by every man’s observation and reflection, the source of his own knowledge, and the means both of his understanding and memory, in order to constitute him a rational and moral civil agent.
Secondly: If the testator can retain in mind the facts and things so perceived and recognized, whether for a longer or shorter time, so that he may conceive of them, and reflect upon their import, without confounding them with mere imaginations or hallucinations, or the speculations of other men, he then has “sane memory.” For although it may be a short, a slow, or a confined memory, it may still be sane, i. e. not false or unfaithful to the facts before perceived, according to its strength and indurance.
Thirdly: The testator must have a “reasonable mind;” that is, he must be capable of reasoning upon, and comparing, by means of his own recollection, (conception and reflection,) the facts perceived and remembered, so as to come to the rational conclusion which constitutes the mental and moral will of every dispassionate and unbigotted man, as drawn by his own induction from known facts.
Such are the rules of law, as assuredly they are of sound metaphysics, to prevent partiality or prejudice, or the exercise of an unsound discretion, in judging of the mental competency of men to execute last wills and testaments of their property.
A testator may, as Bacon expresses it, be “of a mean understanding only,” have “grossum caput” (a blockhead) and be “of the middle sort, between a wise man and a fool, yet is not prohibited to make a will;” (7 Bac. 381,) or, as Dane says “a weak man may be legally sane,” <&c. &c. “Tho’ one has lost much of his mind, he may be compos;” (competent to malte a will,) “as if one’s mind be very eminent at forty-five, and much enfeebled at seventy-five; yet he is compos, if not very childish.” (4 vol. 467.) If we applyhhe rules first laid down, the reasons are plain; such a man still perceives and recognizes facts and things; remembers and conceives of them, as truly existing, com
But, fourthly: The testator must have had the “animus testandi;” that is, his own free conclusion and wish, to adopt the particular last will offered for probate. Bacon calls it “a mind or serious intention to make such a will.” (7 vol. p. 303.) It follows then, (which is the most important point in the appeal before the court,) that what is called undue influence, consists in the application of some extrinsic power to control the disposing mind of the testator, so as to exhibit as his testament, whát was not his free will. Bacon calls it, “by fear, fraud, or flattery.” 7 Ba. 303.
In this State, fear, fraud, or flattery, when applied to constrain, circumvent or cajole the testator, has been called “undue influence." It is the antagonist of the true animus testandi, or disposing mind.
For although the testator may have the sane memory and mind necessary, and be well disposed to make his will, yet such disposing mind may be turned by the influence of other persons, either by moral or physical coercion. As by threats or importunate persuasion, or by the infinite means of the habitual manager of a weak man, to make a will different from that he really wished.
Such a will would not conform to his disposing mind, and would therefore be void, by reason of undue influence.
Lastly, then: To apply the principles of last wills, and the meaning of undue influence, to the case before the court. It is by undue influence only, that the supposed will of Win. B. Farr, in favor of Dr. Thompson, can be set aside. That he had a sane memory, and a reasonable mind, sufficient for the purpose, is evident; at least, the contrary is not proved, and that-he had a mind entirely disposed, from at least 1828, to make a will of his property to some legatee in whom he confided, to fulfill certain supposed trusts, in favor of his two slaves, Fan and Henry, is still better proved. Such uniformity, for at least twelve years, is, perhaps, conclusive, both of sanity of his wish
The threats and importunity practiced, are all in furtherance and aid of the disposing mind of W. B. Farr, to bequeath his property in tlie very way and for the purposes so well understood and proved to belong both to the will of 1828 to Judge O’Neall, and that of 1840, to Dr. Thompson. The purposes or supposed trusts of the bequest are the same, and void; but the bequest itself, good and legal. So far, the will in question seems well supported. Still, two juries have now decided that the will of 1840 was procured by undue and improper external influence practiced upon the testator, when liis mind, though sound, had become weakened by age and bad habits; and an intermediate and third jury could not agree upon any verdict.
At these three several trials, the charge of the presiding Judge had been in support of the will in question, as had been also the decision of the ordinary of the district, in the first instance; but successive and identical verdicts are to be greatly respected; and when the testator has left another will of the same bequests, import and trusts, and which will is perhaps unimpeachable; and if so, the great and material object of avoiding the testator’s disfranchisement may be answered. In such a case, the court will much more readily acquiesce in a verdict rendered upon the question of undue influence, although differing from its own opinion. For the argument, when there is a former will of testator, see appendix to Pothier, especially page 583.
Upon the precise question of improper influence in this case, the evidence has two bearings. The first I have considered, i. e. its influence upon the disposing mind of W. B. Farr, to make any such bequests. Secondly, and now to be considered, its influence to bring about and cause him to change his legatee from Judge O’Neall to Dr. Thompson.
The whole stress of the objections to the will, rests upon this last position. To say that a man can be unduly influenced to make the very bequest he always wished to make, is to utter an absurdity; but to say that he has been influenced to make the same bequest to a new legatee, is very
By the proper construction of both wills, under the principle already explained, that of 1828 is a sweeping bequest in favor of a named legatee; and by the will of 1840, the same sweeping bequest is given to a different legatee. The true aim of the testator, to emancipate and enrich Fan and Henry, is as sure under the one will as the other; and the real conflict and legal interest, however liberally treated, are between these two legatees, or at least so far as we can understand from the two wills, or their evident right and interest under them respectively.
Under such circumstances, and with such equal consequences, there is no great reason to apprehend the final disfranchisement of W. B. Farr, in his right to leave a valid last will to be submitted to judicial construction.
For such considerations, and after three trials before juries, my understanding is led, I think, considerately, rationally, and judicially, to change the opinion formed upon the former appeal to this court; and to acquiesce in this second verdict, upon grounds somewhat similar to those that finally reconciled my judgment to the verdict setting aside the last will of old Lucy Hatcher, which, in that case, as in this, left an earlier will which might be still enforced, and would serve to recognize the aged testatrix as a free agent, although the verdict had passed against her disposing mind, at the age of ninety-three years; and accordingly, her will made a few years earlier, has been admitted to probate. And such may be the final event of the case before the court; and W. B. Farr be in like manner still recognized as of a sound and disposing mind.
The very interesting, and much discussed, and it would seem, unsettled question, what is the degree or force of undue influence necessary to set aside a last will ? — and is it
It is easy to perceive that undue influence must bear upon the disposing mind of the testator, in the particular matter or object of his will. The general influence of one mind over another, can be no more than preparatory to a more specific and close influence upon the particular disposing mind of the testator in the proposed will. Such influence should tend to force or induce a factitious or pretended disposing mind, or to negative and alter his truly disposing mind, so as to substitute the pretended mind in its place.
In general, the observation and opinions of the subscribing witnesses, (who are placed, by the meaning and good policy that require such witnesses, as the legal guards of the testator,) should have much weight for or against the will; and both upon the general moral competency of the testator and his particular disposing mind, in the will witnessed by them. But no such rules or recommendations can point out the degree of influence necessary to set aside the will.
How can any rule other than upon the bearing of the influence over the particular disposing mind be laid down 7
Let me illustrate this by an actual occurrence.
I once attended in his last illness a very respectable and strong minded man, to draw his last will. I found him well disposed to settle his worldly concerns by will. But his whole understanding was barely sufficient, if uninfluenced and not tampered with, to comprehend and execute his last will, by his own mind, memory and discretion. And I left him with this opinion, that any importunity or unfair management of his wife or son, which were not suspected, might alter his disposing mind.
Now, the external influence which would have easily negatived or warped the disposing mind of that testator, would have been but a feather in the degree and weight of influence that could negative, displace, or alter the strong-will of such a man as Andrew Jackson.
It is plain, therefore, that we can do no more than indicate the character, or rather, the bearing of the supposed influence upon the particular disposing mind of the testa
If such be the proper meaning of undue influence, it necessarily leaves the final decision to the verdict of a jury, as in other cases of unjust imposition, or circumvention, eventuating in a practical fraud. Undue influence is, therefore, not a question of law, but an investigation of fact for the jury to decide, after the aid of the Judge in drawing their attention to its proper meaning.
Lastly: There is a point-of pleading in this case, which I would notice. D. A. Thomas, one of the appellants from the decision of the ordinary, was proved to be a stranger to the estate of W. B. Farr, and of course had no privity or right of action. The evidence of this fact was made on the part of the executor. But no motion was made to strike Mr. Thomas’s name from the record, on either side. Can the executor now have the advantage of the oversight, either by a new trial or in arrest of the verdict, or judgment 1
It may be regarded as a settled rule in pleading, that he whose legal right to sue is disproved, or where his interest does not appear, cannot recover at law. The real parties can, in no way, proceed in the name of their friends or agents, or unite with strangers. Such a practice would lead to the most alarming species of maintenance — that of popular names and powerful men; and complex and important cases, like the one now before the court, might be made to turn upon personal or party influence. This rule is especially necessary in the popular trial by jury. In the case of dormant co-partners, it is fully illustrated. Every new name must prove his co-partnership interest. But the rule belongs to all cases at common law, and is by no means merely technical, but practical, just and necessary. And I can perceive no reason why it should not apply, in all its strictness and good policy, to men associated in an appeal from the decree of the ordinary, to the trial by jury, under our statute law. Such is the very case in which the association of names is easy, if not at pleasure, bringing about the very injustice or influences the law would guard against.
But I have some doubts, after a party has omitted, perhaps purposely omitted, to make any objection to Mr. Thomas being a party, either to the court or the jury, whether he can now be allowed to surprize the opposite party, by making the objection when it is too late for the name of Thomas to be stricken out, and the case progress on its merits.
In the case of dormant partners, alleging their interest, and not proving it, I feel clear that the defendant could not raise the objection, for the first time, in this court; and the only difference is, that in the case before us, the executor expressly proved the want of privity or interest of Mr. Thomas, which intimated to the appellants that he could not be a party, and put them on their guard.
But as a majority of the court think the objection comes too late, this important rule of pleading being preserved, I will not urge so doubtful an application of it further than by a single quotation and reference to authorities.
Sergeant Shepkin, in his admirable book on the principles of pleading, lays down the rule, drawn from decided cases, (3 Bos. & Puller; Camp. 195 ; 4 Taunt, 310.) He says: “ The name of a person, not a party, is a point on which the averment must correspond with the proof, under penalty of a fatal variance.” See, also, Saunders Pleadings, 61; Gold. do. 292; 1 M‘Cord, 434; 1 Baily, 306-608; 2 do. 290. _ '
_ It is at the peril of the party suing, that he mistake not the true plaintiffs. Doubting only on the application of this rule to the particular case, I acquiesce in the judicial reasoning that rejects the motion for a second new trial.