
    Brown and others, vs. Moore and others.
    
    The declarations of one of several devisees, named in a will, admitting the will had been undnly or fraudulently procured to be made, are admissible evidence upon the trial of an issue of devisavet vel non.
    
    From the proofs in this case, it appeared that the testator always intended to disinherit the parties who were contesting his will: yet where improper or undue influence was used to procure the will to be made, to the injury of parties who did not complain, it was held that the will ought not to be established.
    This is a petition filed in the county court of Montgomery. The petition states, that Gully Moore, dec’d. executed a paper purporting to be his will; that the same is invalid, “because at the date of said supposed will, and for a long time before and after, and up to his death, the said Gully Moore had not a disposing mind.” Issue was regularly taken upon the petition. The cause was tried in the county court, and a verdict rendered in favor of the validity of the will; from which the petitioners appealed to the circuit court. At the February term, 1833, of the circuit, a trial was again had, and a verdict rendered in favor of the will. A motion was made for a new trial, which was continued till the August term, when the motion was overruled. The cause was brought to' this court by writ of error. The first ground of exception necessary to be noticed, is, that the court reiected , , , , testimony which was ottered to prove the admissions oí James Langford, one of the devisees claiming under the will, that fraud and imposition upon the testator had been resorted to by the principal devisee, in obtaining the. will; and that forged letters had been read, calculated to excite him against his children, &c. The next exception is to that part of the charge of the court which states “that influence, if any were used, must have been exercised to the prejudice of those who contested the validity of the will, in order to render the will invalid; if it were exercised to the prejudice of persons who do not complain, or who wish the will to be established, it would not be available to those who wish to set aside the will, unless it appear to have operated to their injury.”
    The testimony showed, that for many years the testator had determined to make a will, in all material respects similar to this one, and that his declarations to that purport were uniform. He always intended to give the bulk of his property to his son William. He had made a will long before, which was similar in its provisions with this. The influence and fraud attempted to be proved was exercised, if at all, by the wife of the testator and William Moore, the principal devisee; and by its exercise, it was charged, that more was given to the wife by the testator than he originally intended, &c. The wife and William Moore were satisfied with the provisions of the will, which was contested by the elder children, to whom little or nothing was given.
    There is a great deal of testimony on both sides as to the fraud, and the exercise of an improper influence over the mind of the testator by the principal devisee, which, as the court expressed no opinion upon the effect of the testimony, it is deemed unnecessary to state.
    
      W. E. Anderson and W. Thompson, for plaintiffs in error.
    1. The objection to the-will does not rest on the fact of insanity alone, but that, connected with a de-pendant and helpless situation, a weak and shattered mind, the will was obtained by the exercise of an influence which, connected with the misrepresentations made to the testator in relation to his older children, amounted to fraud. The effect of these misrepresentations is to set aside the will in toto. Exparte Fearn, 5 Ves. jr. Rep: Griffith vs. Robbins, 8 Maddox Rep. 105: 1 Cox’s Ca. 353: Clarkson vs. Hanway, 2 P. William, 203: Kibble vs. Cummins, 5 Hay. Rep. 43.
    2d. A testator should act freely, and uncontrolled by any improper influence. He should have capacity to dispose of his property rationally, and with a view to the situation of his family, and their respective claims upon him; and the unreasonableness of the will, connected with other facts, may be viewed as evidence of incapacity. Clerk vs. Fisher, 1 Paige’s Ch. Rep. 171: Marquis of Winchester’s case, 6 Coke’s Rep: "Wheeler vs. Wheeler, 3 Cow. Rep.
    3d. it was error to reject the evidence of James Lang-ford’s declarations. 2 Stark. Ev. 40, 41: 1 Sander’s Plead. 60.
    
      A. M. Clayton, for defendant in error.
    1 st. It will be observed, that the petition relies upon the want of capacity alone in the testator, to set the will aside; the testimony so conclusively negatives that idea, that it was abandoned on the trial in the circuit court, and the cause staked upon the exercise of undue influence over the testator. It will be for this court to determine, how far it was admissible for the petitioners to abandon the only ground averred in the petition against the will, and to set up on the trial a new and entirely distinct cause. But if they had the right to do so, it is still believed that the judgment was correct in the court below. They who seek to impeach the will, must show, by controlling testimony, that from incapacity, or undue influence, amounting to fraud, it is invalid. The finding of the jury in favor of the will is general; the verdict does not show whether it was founded upon the belief, that no undue influence was used, or that none to the prejudice of the petitioners was used. This general finding will impose upon this court the necessity of examining the testimony. From that testimony it will be seen, that the testator, although aged, infirm and nearly blind, possessed great strength of intellect, and that all the solid powers of the understanding remained to him in almost unimpaired vigor. There is no doubt of his perfect capacity to dispose of his property. It is doubtful whether the smallest influence of any kind was exerted over him. Mrs. Rogers, the only witness who speaks directly of such influence, is flatly contradicted in the instance which she mentions by Doctor Marable, who wrote the will, and who must have known the fact of which she speaks, if it existed. She is, moreover, virtually contradicted by the tenor of the whole evidence in the cause. The testimony shows, that for many years the testator had cherished the intention of making a will in all material respects like the one in contest; that his declarations to that purport were uniform. The reasons which led him to prefer his younger son are stated, and they are such as will actuate, to a greater or less extent, every human being. The testator had advanced his elder children, they had spent what he gave them; they had left him, and become estranged from him. The younger son remained with him; he was prudent and careful; he was a cripple, and the last affections of the old man fastened upon him, and evinced their weight in the last act of his life. He had made a will long before which embraced substantially the same provisions. There is no proof of any influence except the influence of affection and attachment. Such influence is not sufficient to vacate a testamentary act. For that purpose, “it must amount to force and coercion, destroying free agency; it must not be the influence of affection or attachment, nor the mere desire of gratifying the wishes of another; but there must be proof that the act was obtained by that coercion, by that importunity w hich could not be resisted, or that it was done merely for the sake of peace, so that the motive was tantamount to force and fear.” Shelford’s Law of Lunacy, 329: 2 volume of Law Library, 209. There is no such proof offered by the petitioners, and the finding in this view was correct. But if not, still the charge of the court was right.
    If the petitioners were not injured, they have no right to complain. If the influence of the wife, one of the legatees, was exercised in her own favor, and to the injury exclusively of William Moore, the other principal devisee, in obtaining more for herself and less for him than the testator originally intended, no one else can complain. If the testator had, for a course of twenty years, in the full possession of mental and bodily strength, declared an intention to give no more to his older children, and if upon one occasion he had solemnly sworn it in an affidavit, so far as one of the petitioners are concerned; and if no appearance o.f relenting, or swerving from his purpose, was ever manifested, then the petitioners have no right to complain. The evidence shews this was the case. “If undue influence be exercised over the mind of a testator in making his will, the provisions of the will in favor of the person exercising that influence are void, and the provisions of the will may be good as to the other parties.” Shel. 333: 2 vol. Law Lib. 212. “Fraud without damage, or damage without fraud, gives no cause of action; but where these two do concur, there an action lieth.” Bayly vs. Norvel, 3 Bulstrode’s Rep. 95. This shews the correctness of the charge of the court.
    2d. The admissions of James Langford were properly excluded. Phillips vs. Heartwell, 1 Mass. Rep. 71: 4 Ser. and Raw!, 203, 499: 3 Starkie's Lv. 17,08.
    
      Geo. S. Yerger argued on the same side.
   GREEN, J.

delivered the opinion of the court.

This is a petition filed in the county court of Montgomery county, putting in issue the will of Gully Moore, deceased. After a trial in the county court, the cause was taken to the circuit court by appeal. On the trial in the circuit court, the petitioners offered to prove that James Langford, a devisee in the will, acknowledged that undue influence was exercised to induce the making of the will, and that forged letters were read to the testator by the devisees, before the making of the will, to exasperate him against his other children, who are disinherited. But the court rejected this testimony as incompetent.

The court is of opinion this testimony was improperly rejected. Although not a party on the record, yet James Langford is a party in interest, and the judgment in the cause will avail to establish his right to the two negroes devised to him in the will, or to deprive him of all claim to them. The suit is for his use, and the establishment of the will would result in a direct benefit to him. His admissions of a material fact ought therefore to have been received as evidence. 2 Starkie, 40: 1 Saund. 60.

But it is said there are others having larger interests involved in support of the will than James Langford, and that were his declarations to be received, their interests might be affected injuriously; whereas, the devisee making the declaration, would probably have an interest in breaking the will. If this were true, it would be calculated to destroy the credit of the party making the admissions. But here James Langford is interested in establishing the will; for being a grandson of the testator, and his father and mother being alive, the setting aside the' will would strip him of all interest in the estate. The argument on this point, by the counsel for the petitioners, is irresistible. If they had been able to prove by a witness that William Moore had made a like admission, and by another, that Mrs. Moore had confessed the same facts, they would have had proof that all the principal legatees had confesssed that the will was obtained by fraud, and yet, upon the principle assumed in relation to Langford’s confessions, none of this testimony could have been heard. And why? Simply because all the facts known to these three witnesses, were not within the knowledge of any one of them. This would be absurd, and contrary to all principle. Whether the will can be good as to some of the devisees and no will as to others, it is not necessary to decide; but if, as the counsel for the devisees insist, it can be good in part, and bad in part, all pretence for excluding James Langford’s confessions is done away; for if, as to the devise in his favor, the will may be set aside, and stand as to the others, surely his confessions maybe evidence against himself.

The proof is, that the testator had long spoken of his intention to give his estate to his son, William Moore, and of excluding those who are disinherited from any participation in his estate. In view of this proof, the Judge told the jury, in substance, that if any influence were exercised to induce the testator to make this will, the petitioners had no right to complain unless they were injured thereby. This charge, in connexion with the proof, must have been understood by'the jury, (and is understood by the counsel on both sides here,) as asserting that, if from the proof, it appeared to have been the testator’s intention to disinherit the petitioners, any influence, however corrupt or injurious to others who are not complaining, could not have injured them, and that therefore they have no right to complain. In this charge we are of opinion the court below erred. These petitioners are heirs at law, and distributees of the testator, and had he died without a will they would have inherited part of his estate. To procure the making a will, then, in which they are not provided for, cannot be said to have done them no injury, how strongly soever the testator might have determined not to provide for them. Again, the petitioners are the children of the testator, and might possibly have explained the circumstances which had alienated the feelings of their father, and-have reconciled him to them, had there been no influence adverse to such a state of things. They might too, lawfully, have represented to him their claims on his bounty, as his children, and by persuasions and entreaties, might possibly have produced a change in his feelings and views in relation to them. While any possibility of such a state of'things existed, it cannot be- said that an influence calculated to prevent it was not injurious to them.

Although the principle assumed by the Judge, that fraud without damage gives no cause of action, be abstractly true, yet there is certainly no ground for its application to this case; its statement in the charge to the jury, must have had a mischievous tendency, in leading the minds of the jury to consider the exclusion of the petitioners from any share of the testator’s estate, as having been fixed, because he had declared such to be his purpose, and consequently, as leading to the conclusion that the petitioners had no interest in calling in question the alleged fraud of the legatees.

As another jury must pass upon the facts of this case, the court forbear any intimation of an opinion upon its merits. Let the judgment be reversed and the cause remanded for another trial.

Judgment reversed.  