
    DECLARATIONS BY TESTATOR. SUBSEQUENT TO EXECUTION OP WILL.
    [Circuit Court of Hamilton County.]
    Elizabeth Schmitt Kuhl, Executrix, et al, v. Margareta Reichert et al.
    Decided, December 16, 1903.
    
      Wills — Declarations by Testator, Made Subsequent to the Will, Admissible as Evidence for the Purpose of — Charge of Court Capable of Being Misunderstood — But Interrogatories Answered Show it was Taken in Proper Sense.
    
    1. Declarations as to testamentary intentions by a testator in advanced age and in feebled condition, made during last sickness and shortly after execution of will, are admissible to show the state of mind of the testator at the time the will was executed; and where, in answer to interrogatories, the jury find that the testator was not unduly influenced, and did not have at the time the will was executed sufficient mental capacity to make a will, a charge by the court that might have been interpreted by the jury to mean that such declarations were competent to prove an intention other than that expressed in- the will, was not prejudicial, and the verdict will not be disturbed because of the error in the charge had it been so interpreted.
    Giffen, J., Jelke, J., and Swing, J., concur.
   No exception was taken to the charge of the court, and hence any alleged error therein will not be considered, unless upon the whole record it appears that injustice has been done to the party complaining.

That part of the charge now objected to is as follows:

“Declarations made by the testatrix at, before, and after the making of the purported will as to her intentions in making the will are admissible to prove not undue influence, but capacity and intention, and should be considered in determining the state of the testatrix’s mind.”

If the court meant that such declarations were competent to prove an intention other than that expressed in the will, it was erroneous, because oral testimony is no more admissible to vary or contradict the terms of a written will than the terms of a contract in writing; but concerning the other proposition in the charge, to-wit, “Declarations made by the testatrix * * * should be considered in determining the state of the testatrix’s mind,” it is said in Paige on Wills, p. 474: “Any declarations of testator which tend to show the condition of his mind at the time that he made his will are admissible to determine his mental capacity at that date. So, statements made by testator relative to his intentions of disposing of his property are admissible, not for the purpose of contradicting the contents of his written will, but to show his state of mind at the time that he executed such will;” in support of which many cases are cited.

The strongest case cited by the plaintiffs in error in support of their contention that such declarations were inadmissible is Crocker v. Chase, 57 Vermont, 413, the first proposition of the syllabus being as follows:

“The declarations of a testatrix, made subsequently to the execution of the will, and at a time when she was of sound mind, are not admissible for the purpose of showing her mental condition when the will was executed. There is no logical relation between such declarations and the fact sought to be proved; although it is otherwise when mental unsoundness exists at the time the declarations are made.”

The difficulty encountered in applying this case to the one before us, is that it is not clear that the testatrix, Philipina Schmitt, was, at the time the declarations were made, of sound mind. The particular declarations complained of and recited on pages 10 and 11 of the bill of exceptions were made at the time of her last sickness and shortly after the execution of the will. ITer feeble condition by reason of her last sickness beginning a few weeks before the execution of the will, together with her advanced age, tended to corroborate the witnesses who were of the opinion that her mind was enfeebled.

We are of the opinion therefore that the declarations of the testatrix concerning her testamentary intentions were admissible to show the state of her mind at the time the will was executed, and if they were considered by the jury for any other purpose it was not prejudicial because the jury in answer to two special interrogatories found that the testatrix was not unduly influenced and did not have sufficient mental capacity to make a will at the time the will in question was executed.

Benner & Benner, contra.

Gloss & Luebbert, for plaintiff in error.

The verdict'of the jury was not so manifestly against the weight of the evidence as to require a reviewing court to set it aside.

The judgment will be affirmed.  