
    J. P. Farr et al, heirs at law of W. B. Parr, v. W. P. Thompson, Executor of W. B. Farr.
    The rule, that one shall not discredit his own witness, is for the protection of the witness himself, and shall not be dispensed with by consent of the parties litigant.
    And the rule excludes, not only general evidence against the character, but former inconsistent declarations ; and every matter that would be inadmissible or irrelevant, except for the purpose of impeaching the oredit.
    But a party may introduce contradictory evidence upon facts material to the issue, and thus incidentally impeach the credit of his own witness ; and this will not let in evidence of good character in reply.
    Where, however, a party was, irregularly, allowed to introduce the inconsistent declarations of his own witness, evidence of character ought to have been admitted in reply.
    A will legally executed shall not be set aside on the mere ground that its provisions are in favor of a mulatto woman, with whom the testator (a hard drinker and paralytic) had lived in disgraceful intimacy; who had had great domestic influence over him, and of whom he had sometimes appeared to be in personal fear.
    There must be proof, not only of influence, but, that it had been expressly and unlawfully brought to bear upon the will.
    A disposition of property, though ever so capricious and unreasonable, will not be avoided on that ground alone. .
    ‘ ‘ What facts, if proved, shall constitute undue or improper influence, to avoid a will, I hold'to be a question of law; and I think in cases of this kind, the particular sort of influence should be set down in the pleadings.” (Earle, J.)
    
    Before Eyans, J., at Union, Spring Term, 1839.
    This case arose upon a contested will. The wide ground occupied by the opinion of the Court, leads to the necessity of considerable detail in the history of the case, which is given in the words of the Circuit Judge’s report.
    “ The testator, W. B. Farr, was a man about sixty-six years of age at the time of his death, which took place in 1837. He made his will in August, 1836, and a codicil in February, 1837. By the will he gave all his estate, real and personal, which was estimated to be worth fifty or sixty thousand dollars, to the appellee, W. F. Thompson, and appointed him sole executor. The codicil was a revocation of a paper executed some years before, whereby he gave to his nephew, Farr Duff, certain property after his death. The validity of the will had been contested before the Ordinary on several grounds, but he had decided in favor of the executor. The heirs at law appealed, and' the case was brought up to this Court to be tried, on the following assignments of error in the decision of the Ordinary:
    1. That the will was not executed according to law-.
    2. That it was obtained by undue influence exercised over the testator by the executor, Dr. Thompson, and by a negro woman named Fan, and her son Henry.
    3. That it was obtained by threats made by the same persons.
    “ To the understanding of the evidence which will be hereafter detailed, it is necessary I should state that the testator was never married. Fie had lived for many years in a state of illicit intercourse with a mulatto woman, his own slave, who assumed the position of a wifé, and controlled, at least, all the domestic arrangements of his family. The issue of this intercourse was a boy, named Henry, who was acknowledged by the testator as his son. Many years before his death, he had endeavored, by application to the Legislature, to effect the emancipation of this boy. These efforts proving unavailing, the testator, after, or about the time he arrived at manhood, sent Henry to Indiana, where he had him settled, and provided him, from time to time, with considerable sums of money. His mother, Fan, was a bright mulatto, and Henry was nearly white. Dr. Thompson, the executor, had been the family physician of the testator, and was called in frequently to prescribe for Fan, who was frequently unwell. The appellants are the half-brothers of the testator, and his nephews and nieces, of the whole blood, who are entitled to his estates if he died intestate.
    “ The will was executed in the presence of three witnesses, who saw him sign it, and attested it in his presence. The testator came to the house of Mr. Dawkins, one of the attesting witnesses — the other witnesses were sent for. The testator produced the will from his pocket, and folded it so that the witnesses could not see the writing. Dawkins objecting to sign it without knowing what was in it, the testator replied it would never do them any injury, and he did not wish to make a blowing horn of everything he did. The witnesses then attested it, but none of them could say whether there was any writing above the signature, as the testator carefully folded down the paper so as to conceal the writing, if there was any. The will was an exact copy, or nearly so, of one written for the testator by Judge O’Neall, in 1828. The only difference that I recollect, was, that the legatee and executor was changed, by substituting Dr. Thompson in the place of Judge O’Neall, as legatee and executor.
    “ The only point made on the first ground, was on the question whether the will was not blank when executed, and filled up afterwards. I thought the evidence afforded no ground to impeach it for this cause.
    “ On the opening of the case, the appellants called Mr. Daw-kins, one of the witnesses. Among other questions asked him, was, if at the time he attested it, it was signed by the testator, and whether he had not said it was neither signed nor acknowledged by the testator at the time he attested it. The witness admitted he had said so after the testator’s death, and explained that at the time of execution he was in bad health, and that he was unable for some time to call to recollection the facts, but afterwards he remembered all the circumstances, as he had stated them in Court and before the Ordinary. He was also questioned as to some other circumstances, about which he had made statements to other persons, some he denied, and some he admitted and explained. The appellants were allowed to examine witnesses to prove that he had formerly said the will was not signed or acknowledged before him; and also that he had stated to them some facts which he denied on his examination in Court. This evidence was offered for the declared purpose, not of showing the witness was not entitled to credit, but to show his memory was not to be relied on. The rule, as stated in Perry v. Massey, (1 Bailey B. 32,) is that the party shall not be allowed to impeach his own witness, by showing his character is infamous, but may offer evidence to show that the witness is mistaken, by proving that at other times he had made a different statement of the facts. The evidence was admitted on this ground, and no other use was made of it in the argument. It appeared that formerly, in 1828, the testator had made a will whereby he gave his whole estate to Judge O’Neall, and appointed him sole executor. This was accompanied by written instructions to Judge O’Neall, declaring certain trusts in relation to the property, which the executor was to execute for the benefit of Fan and Henry. At the time of the trial before the Ordinary, the executor presented a paper signed by himself, in which he set out certain secret trusts, which he was, by agreement with the testator, to execute. This paper was offered in evidence and rejected, because it was the declaration of the executor, and could not be received in evidence for him. In the course of the trial, the appellee proposed to go into evidence of the general good character, both of the witness, Dawkins, and the executor, Dr. Thompson. In both cases the evidence was rejected. The character of Dawkins was not assailed, and the character of Dr; Thompson was not put in issue by either the evidence or the pleadings.”
    Touching the charges of undue influence, the evidence was that Farr was a man originally of strong mind, and, as' one witness said, “ as hard headed as any man,” but that he was much enfeebled by .hard drinking, and “ his memory was impaired by a stroke of the palsy, but he was capable of doing 'business.” He talked often about the disposition of his property; said, sometimes, he would, give it to his half-brothers; sometimes designated other relations; sometimes said none of them should have a cent; that Fan should have it all; that he would leave it to Henry.
    Fan had the influence over him of a white woman and a wife. He put his mare to a horse after having refused to do so, because she desired it; had a clock which he cursed, and said he would not have bought it but for Fan; promised to destroy a dog that killed sheep, but did not do it because she objected; bargained for a negro, but would not buy till her pleasure was consulted; sold a negro girl at her desire, and made titles to another one that she offered for sale as her own, and when he had made the titles, said “ he hoped she would now be satisfied, as there was no other woman left; he hoped he would have some peace.” The witness thought she had such influence that she could have had any negro sold that she pleased.
    At Christmas, 1835, Farr said he should not live long, and wanted to divide his property out among his relations, equally ; Fan said, “what is to become of me and Henry?” Farr said he would give her money enough to maintain her during life, and she might go to a free State; she replied, “ before any of the Farrs should have any of the property she would lose her life.” Fan refused to let a servant come to him when he called; they quarrelled about it — she shook her fist in his face and threatened to knock his teeth down his throat; witness heard them quarrel in the night; heard her call Hannah, a servant, to bring her the whip, and she’d beat his skin off.
    They would get drunk together, and she was insolent to him; told him to hush, or she’d give him hell; cursed him for a damned rascal, rubbed her fist in his face and dared him to open his mouth; called him a damned old palsied rascal.
    Farr once sent for Dawkins, and said Fan had tried to kill him with a spear; she threw it at him and it stuck in the bed post; Fan was drunk, and he made them make friends.— Another witness said, “ Farr sent for him to come and see him; when he came Fan was cursing tremendously; her sleeves were rolled up; she said, God damn — I’ll see your heart’s blood, for I caught you in bed with another man’s wife. Witness would have beaten her, but Farr requested him not — said she was a damn fool any how, and he was a little afraid of her when she got into her tantrums; they were drinking. This was in 1832 or 1833.” At another time he said he did not know why he took up with Fan; when he was well and could go about, he did not mind her, but since he had been palsied, he had better be in hell.
    The jury found against the will, reversing the judgment of the Ordinary, and the appellees moved for a new trial—
    On the ground of error upon several points touching the admission and rejection of evidence, (as will appear more fully by .reference to the opinion of the Court.)
    Because the will was proved to have been legally executed, and, as no proof was offered to show that it was blank, that proposition should not have been submitted as a question to the jury.
    Because the verdict was against the evidence, against the law, and against the expressed opinion of the presiding judge.
   Curia, per Earle, J.

Although the first ground taken in the notice of appeal does not present the precise question made in the argument, nor cover the whole ground occupied by the counsel, yet enough is collected from the report of the Judge and the admissions of the bar to authorize the Court to consider and decide:

1. Whether the plaintiff’s counsel should have been allowed to cross-examine the witness Dawkins, as to former declarations made by him inconsistent with his oath in court, and then to call witnesses to prove those declarations.

2. Whether, after that evidence had been .allowed, the other party, or the witness himself, should not have been permitted to sustain his oath in court, by proof of general good character.

The rules of evidence are generally well settled. They are the result of experience, and are framed for the purpose of eliciting truth in the most effectual manner, but also with a view to protect the witness from unnecessary assault. To secure parties from the consequences of falsehood, as well as to advance the ends of justice, it is necessary and proper that they should be allowed to attack the credibility of a witness called to testify against them; and there are three modes of doing this: 1. by proof through other witnesses that the facts are otherwise; 2. by evidence of general bad character, which would render him unworthy of credit; or, 3, as Mr. Phillipps expresses it, (1 Phil. Ev. ch. 8,) by proof that he has made statements out of court, on the same subject, contrary to what he swears at the trial.”

As to the first of these modes, it is obvious that it may be resorted to without in the slightest degree impugning the veracity of the witness, so long as men view the same transaction in different lights, form different conclusions from the same premises, pay more or less attention to the same occurrences taking place before their eyes, aud have memories more or less retentive. A party must be allowed to show by witnesses called by himself, that facts are otherwise than as they are deposed by the witnesses called against him; and this, too, without being understood as so attacking the character of those adverse witnesses, as to let in evidence of general good character in reply. But it seems impossible to resort to either of the other modes without making a direct attack on the veracity and character of the witness. The proposition is direct, that he is unworthy of belief; from general infamy, in the one case, and in the other, that he either swears falsely on the trial, or was guilty of falsehood before. Such proof of former inconsistent declarations is always offered to discredit what the witness swears on the trial, and is held to be one of the most legitimate modes of doing so, as it is in fact one of the most common.

But, although this is perfectly reasonable and proper in regard to an adverse witness, it becomes another question when presented in regard to a party’s own witness. The rule is universal, and founded in the strongest common sense and most rigid justice, that a party shall not be allowed to discredit his own witness, that is, to show that his witness is not worthy of belief; and this is a rule which seems to be indispensable, not so much for the protection of the adverse party as of the witness himself. “ It would,” says Mr. Justice Buller, (1ST. P. 297,) “ enable the party to destroy the witness if he spoke against him, and to make him a good witness if he spoke for him, with the means in his hand of destroying his credit if he spoke against him.”

It is true the meaning of this rule is restricted by Mr. Phil-lipps to proof of such general bad character as would make him unworthy of credit, (1 Phil. Ev. 213, ch. 8,) and this view receives some countenance from the Court in Perry v. Massey, (1 Bailey, 32,) but. the position is not sustained by any of the cases. No doubt when a party calls a witness who swears differently from what was expected, he is not precluded from relying on other proof by other witnesses that the fact is not as his first witness deposed, although this may indirectly have the effect of bringing in question the credit of such witness: and he may, perhaps, resort to the previous admissions of the same witness, provided such admissions would, of themselves, have been competent evidence of the fact, independently of the personal bearing of the examination. Such was clearly the case of Alexander v. Gibson, before Lord Ellenborough, (2 Camp. R. 556;) and, in Perry v. Massey, the admissibility of the evidence of previous contradictory acknowledgments was rested, by the counsel who offered it, on the very ground that “ Weaver’s agency was established, and his acknowledgment of payment was evidence in the cause, independently of any purpose to impeach Weaver’s credit.” It would be extremely harsh to allow a party calling a witness to go further.

It seems in vain for counsel to disclaim the intention of impeaching the credit of Dawkins. He appeared to>he a subscribing witness to the will. He was called to disprove the due execution of the will, or with the expectation that he would do so. He deposed differently, and proved the will to have been duly executed. The party who had called him had then a right, surely, to call other witnesses and prove the fact of non-execution, or to make it appear in any other way by evidence that was originally competent. But here, counsel were allowed to prove that Dawkins had on several occasions made inconsistent statements; and, to open the way to this proof, as in the case of impeaching the credit of an adverse witness, he interrogated the witness himself, concerning these statements. It is enough to determine this question to ask whether the declarations of Dawkins out of court, would have been competent in the first instancé, or whether, after they were admitted, they were competent as independent proof. Certainly not. They could therefore serve no other purpose than to throw suspicion and discredit on the evidence of Dawkins, delivered at the trial. They were to show that his oath then was not entitled to credit, by convicting him of falsehood upon his former declarations.

Nor is it a sufficient answer to this reasoning, that the objection was waived by the adverse counsel. The rule is intended for the protection of the witness, and should not have been violated, even with the consent of the counsel.

If Dawkins had been the witness of the other party, and his testimony had been impeached as it was here, I think he should have been allowed to call witnesses to prove his good character. Such evidence, in its direct tendency, is calculated to show that the witness is not worthy of credit. It is an assertion of his having spoken or sworn falsely, and his good character is a legitimate defence against the presumption that is raised against him. In Rex v. Clarke, (2 Stark. R. 214,) before Holroyd, J., such evidence was allowed. There, the character of the witness for the prosecution was impeached on her cross-examination, as to her conduct and deportment, and she was permitted to call witnesses to her good character. “ Since,” said Holroyd, J., “ the object of the cross-examination was to impeach the character of the witness, and to show that she was not credible. I do not see why such evidence may not be let in for the purpose of removing the impeachment of her character upon cross-examination, as well as if it had not arisen aliwide.”

Nor can it make any difference that the witness was called by the party impeaching him. If the protection he was entitled to was withheld from him, it was due to him as a personal right to be permitted to sustain himself.

Independently of these errors in law, the Court is of opinion that this verdict ought not to stand; that it is not only opposed to the great preponderance of evidence, but that there is, in fact, in the whole report of the case, no proof of such undue and improper influence as should be allowed to invalidate a will. This phrase of u/ndue influence, so frequently resorted to in this country, by disappointed relations, to avoid wills of persons on whom, while living, they had no claims, seems to me to be a modern innovation, and is not known in the English Courts. Every person of reasonable mind and sane memory may dispose of his property by will. It is a right secured by the municipal law, and exists in as perfect form as the right to transfer by sale or gift during life. The true inquiry always is, whether there exists the animus iestandi; for, without that, the instrument purporting to be a will is of no effect in law. The party, therefore, must be free, and under no compulsion from such threat or violence as may reasonably be supposed to move a constant man. Even in case of such constraint or fear, if, when they are over, the testator confirms the will, it is made good. So, likewise, wills procured to be made by artful misrepresentations and fraudulent contrivances, are void. But it is not unlawful for a man, by honest intercessions and modest persuasions, to procure a will to be made in his behalf; and, according to the ecclesiastical law, importunity, in its legal acceptation, must be such as the testator is too weak to resist, and pressed upon him even to such a degree as to take away his free agency. These are the general rules on this subject; and, if they be applied to the case made by the proof, it will be very difficult to find the evidence either of threat, or violence, of fear, or compulsion, of artful misrepresentation, or fraudulent contrivance, of immodest flattery joined unto deceit, or of excessive importunity, extorting from the feebleness of age or disease, what it was unwilling to grant, yet unable to withhold.

The testator was an intelligent man, of strong mind, not yet greatly advanced in years, and only impaired in the vigor of his understanding by intemperance. He had no lawful wife, nor children, and had not lived in amity, at least not in continued amity, with his relations; and he has given his property to a' stranger to his blood. This he surely had a right to do, and this is all that appears upon the face of the will.

When the executor and sole legatee proposes to produce the paper which contains the trusts, it is excluded, even by those who, in the argument to the jury, and to this Court, have urged that the will had ulterior and unworthy objects, and was made under the undue influence of a slave. We cannot, however, avoid seeing, through the face of the will, that the purpose was to provide a mode of bestowing the property on the issue of an illicit intercourse between that slave and himself. We do not choose here to speak of the indecency of such a connection, nor of the policy of permitting property to be given or devised in trust for the benefit of such persons. Until the Legislature thinks fit to interfere, we must have questions of this sort determined by the established rules of law.

Now, what facts, if proved, shall constitute undue or improper influence to avoid a will, I hold to be a question of law; and I think, in cases of this kind, the particular sort of influence should be set down in the pleadings. That the testator was to a considerable extent under the influence of the woman in his domestic arrangements, is undeniable — as much, said one witness, as a man usually is under the influence of his lawful wife; yet it would not hold either with reason or law, to' say that such an influence would avoid a will in behalf of the wife. Testator and the woman often quarrelled; she threatened to knock his teeth down his throat, cursed him for an old palsied rascal, rubbed her fist in his face, and dared him to open- his mouth. These occurrences were during the paroxysms of mutual drunkenness, and really seem to be any thing but flattering speeches, or deceitful representations, or excessive importunity, used for the purpose of procuring a will to be made in behalf of her son. Indeed, all the proof of this kind referred to the year 1835, while the fact was that, as early as 1828, the testator had made a disposition of his property for precisely the same purpose, only appointing another executor. And this disposition of it was in conformity with the uniform tenor of his declarations from that period to the time of making the will under consideration. A disposition of property, though ever so capricious or unreasonable, will not be avoided' on that ground alone. It is no lawful objection to a will that it does not dispense the testator’s property to his relations, especially remote ones, unless deceitful arts have been used to estrange fixed affections. There is nothing of that kind here, and, however indecent and degrading was the connection of the testator with his slave, yet as he had issue by her, whose appearance seemed such as to secure him a status in society in another State, which he could not gain here, it is not perceived that there was any thing unreasonable or unworthy in making suck a disposition of kis property as to promote tkat end.

Thomson and Dawkins, for the motion;

Hernclon and Henry, contra.

After all, whatever sort of influence is alleged, to avoid a will, must appear to have been exerted for the purpose of procuring it to be made. Now there is not in this case any proof, except by Ellen Brock, that the woman Fan had any direct communication with the testator, on the subject of the mode of bestowing his property. “ She said, before any of the Farrs should have any of the property, she would lose her life.” This was in 1835, and, besides that the will in Judge O’Neall’s hands was then made, it was no threat of violence to the testator to put him in fear: it was not the exercise of any of the arts alluded to, which may avoid a will; but only a strong expression of her dislike, and even that was after an expression of the testator’s intention in her favor, proved by the same witness.

Upon the whole, the Court is of opinion, notwithstanding the learned and able argument of the counsel for the appel-lees, that to allow this verdict to stand would be, to let the jury run wild under the influence of prejudices and feelings which, however honorable and praiseworthy, must not be permitted to overthrow the rules of law, or divert the current of justice. The trial by jury would otherwise become an engine of capricious injustice, instead of the safe-guard of property. The motion for a new trial is granted, with the unanimous consent of the Court.

O’Neall, J., declined expressing an opinion in this case. 
      
      
         Harp. 561; Appendix. An.
      
     
      
       5 Strob. 192. Ah.
      
     
      
       1 Sp. 101; Rice, 271. An.
      
     
      
       S. C. again ; 1 Sp. 93. An.
      
     