
    Richmond.
    Carpenter & wife v. Utz & als.
    
    (Absent Cabell, P.)
    
      1848. January Term.
    1. Upon an appeal for error in excluding testimony, it is incumbent on the party seeking to reverse the judgment, to shew that error has been committed; and this must appear from a statement of the evidence oifered and excluded; or if its relevancy depends upon other facts in the cause, the party alleging the error, should present such a case on the record as shews the relevancy of the evidence rejected.
    2. Testimony which does not appear of itself, or upon the facts stated in the record, to have been relevant, will be held in the appellate Court to have been properly excluded.
    3. It is the duty of the plaintiffs to make all necessary parties, and to have the cause regularly matured against the defendants, before it is brought to a hearing. And they will not be heard in an appellate Court, to allege any such irregularities in order to reverse a decree in favour of the defendants in the Court below.
    
      Carpenter and wife filed their bill in the Circuit Court of Madison for the purpose of setting aside the will of Daniel Utz deceased, which had been admitted to pro-bat in that Court. They charged that the testator had been very intemperate for a number of years, and both his mind and body had become very much enfeebled: That Daniel Utz jr., the son, and Thornton Utz, the grandson of the testator, the first of whom lived near and the other lived in the house with him, had by undue means and corrupt practices induced the testator to execute the paper when he was mentally incapable of making a valid will. And that by this will they were made the devisees of much the larger portion of his estate. They made said Daniel and Thornton and the other devisees and heirs of Daniel Utz sen’r, parties. Two of these were nonresidents of the State, and an order of publication as to them was made, but there was no proof of the publication. Four were infants, and a guardian ad litem was appointed to defend them in the suit, and he put an answer among the papers, though it seems doubtful if it was regularly filed. Daniel and Thornton Utz answered, denying the charges against them, and the incapacity of the testator. The bill was taken for confessed against the other defendants; and thereupon, by consent of parties, an issue was directed to try the question, whether or not the paper admitted to probat was the last will of Daniel Utz deceased.
    On the trial of the issue, the plaintiffs, to prove that the paper in controversy “ was not made at the will and pleasure of Daniel Utz sen’r, but by the influence and contrivance of Daniel Utz jr. and Thornton Utz, and by the fears and submission to their wishes, with which they by their acts had inspired Daniel Utz sen’r,” offered to prove that Thornton Utz had in the house and presence of Daniel Utz sen’r, struck twice with his clenched first, a young woman, the granddaughter of Daniel Utz sen’r, which did her serious injury, and that this conduct passed without reproof or complaint or defence from her grandfather. And they further offered to prove that Thornton Utz had threatened on another occasion, to kick down stairs and out of the house Mrs. Nelly Crigler, a daughter of the testator, of which threat the testator was afterwards informed, and in relation to which he in the absence of Thornton Utz complained so far as to say he would not have thus acted for all he was worth. And the plaintiffs further proposed to prove that some three or four months before the will in controversy was written Daniel Utz jr. had privately told William Early, that he said Daniel jr. would be the owner of a rich body of low grounds, then the subject of conversation, if all things worked right, which low grounds were the property of the elder Utz, and were devised by the will in controversy. But the Court excluded the testimony, and the plaintiffs excepted.
    
      The jury found a verdict in favour of the will, and then the plaintiffs moved the Court for a new trial on the grounds:
    1st. That before the jury retired from the bar to eonsu^ ^eir yerdict, the plaintiffs moved the Court to instruct the jury, that if they believed from the evidence that the testator, when he executed the paper writing purporting to be his will, was of sane mind and memory, but from old age and infirmities, was weak and imbecile in body and mind, and that Thornton Utz one of the principal devisees, had falsely represented to the testator, shortly before the execution of the said paper writing, that his aunt Nelly Crigler, a daughter of the testator, had interfered with his slaves, and caused insubordination and resistance among them, that they should find against the will. But the Court refused to give the instruction.
    2d. Because the Court excluded the evidence spoken of in the previous bill of exceptions. But the Court being satisfied with the verdict refused to set it aside and grant a new trial: and the plaintiffs again excepted.
    When the verdict was certified to the Chancery Court, the plaintiffs moved that Court for a new trial of the issue on the grounds stated in their bill of exceptions, but the Court overruled the motion, and dismissed the bill; and thereupon the plaintiffs applied to this Court for an appeal, which was allowed.
    
      Morson, for the appellants.
    
      Patton, for the appellees.
   Allen, J.

delivered the opinion of the Court.

The Court is of opinion, that where it is alleged that error has been committed in excluding proper and relevant testimony from the jury, it is incumbent on the party seeking to reverse a judgment for this cause to shew that error has been committed; and to this end the evidence offered and rejected must appear to have been relevant from the statement of the evidence alone; or if the relevancy or irrelevancy of the evidence offered depends upon other facts in the cause, the party alleging the error should present such a case on the record as shews the relevancy of the evidence rejected. The Court is further of opinion, that as it no where appears when the act of violence on the part of Thornton Utz to his sister, or the threat of said Thornton Utz against a daughter of the testator, was offered or made, whether before or after the paper purporting to be a will was executed, or that they had any connection with, or were done or said with reference to the execution of a will, or had any influence whatever over the execution thereof, the evidence, if received, could not have proved influence or contrivance on the part of the principal devisees to procure a will; nor by itself, unconnected with any thing else, does it prove, or tend to prove, that said testator in executing said will was operated upon by fear or obedience to the wishes of the principal devisees. And the Court is further of opinion, that the private declaration of Daniel Utz jr. as offered to be proved, was still more irrelevant. It amounts, taken by itself, to nothing more than an expression of a hope that a will would be made favourable to him; and this hope not communicated to the testator. Such evidence neither proved or tended to prove any influence or the exercise of any improper means to procure the will; and unless made relevant by something not appearing in the record, was properly rejected at the trial. The Court is further of opinion, that there was no error in refusing to give the instruction asked for; it not appearing that the alleged false representation had any influence upon the testator in the execution of the will. The instruction required the Court to pronounce as a rule of law that a particular fact being proved, though it may have had no influence whatever on the testator, avoided his will.

The Court is further of opinion, that it was the business of the appellants, the plaintiffs in the Court below, to make all proper parties, and see that the cáse was regularly matured against the defendants before it was brought on for hearing. That if the answer of the guardian ad litem is to be considered as not regularly filed, and the order of publication against the absent defendants does not appear to have been regularly executed, yet an issue was directed by the consent of the appellants ; and no suggestion or motion was made by the appellants either before or after the trial of the issue, that the cause had not been fully matured as to all the defendants. The defendants who alone might have been prejudiced by these formal errors, if any error was committed, have not complained; they may be content with the verdict and the decree; and it is too late for the appellant, in the appellate Court, to take advantage of his own omission to reverse a decree which is correct in all other respects.

Decree affirmed.  