
    Rogers vs Rogers.
    Will case.
    
      Case 108.
    Error to the Fayette Circuit.
    
      Wills. Continuance. Witness. Evidence. Instruction,
    
    
      May 7.
    The ease stated and points made.
    On the trial of an issue in a suit in chancery of devesavitvel non, that the Court overruled the motion of the party for a continuance on the ground of the sickness and inability of a ■witness to attend, but whose deposition the Court gave the party time to. take, and which was taken and read in the case, is no ground for reversal, as it does not appear hut that the deposition was as useful to the party as his oral evidence would have been.
    It is seldom pntdentforthe court to instruct the jury, that theie is no evidence of fraud or improper influence in procuring a will, but the Circuit Judge has the legal right so to decide, and his decision sustained in this case.
   Chief Justice Robertson

delivered the Opinion of the Court.

On a bill filed by some of the heirs of James Rogers, dee’d. for contesting the validity of a document which had been admitted to record in the Fayette County Court, as his last will, the jury, under the statutory issue devesavit vel non, found that it was his valid will, and a decree was rendered accordingly. That decree is now sought to be reversed on three grounds, which will be considered in the order in which they have been urged in this Court.

1. An application for a continuance on account of the absence of a material witness was overruled by the Circuit Judge, who postponed the trial until the deposition of the absentee, who was sick, had been taken, and which was read to the jury. That refusal is complained of as erroneous and prejudicial; but it seems to us that it cannot be so considered—neither the character of the deposition nor any other fact in the record would authorize the presumption that his sickness, in any degreee, affected the testimony of the witness, or that his deposition was not as useful to the party using it as his oral examination in Court could have been. We are of the opinion, therefore, that there was no available error in the refusal to grant a continuance, and especially in such a case, in which the personal attendance of all the witnesses at the same time could not have been reasonably expected, and in which also, a trial without delay was peculiarly important.

2. The jury was instructed that there was no evidence of cither fraud or improper influence on the testator; and this also is assigned for error.

It cannot often be prudent thus to control the jury as to such facts as fraud and sinister influence in the procurement of a will. But whether there was any evidence of either of these facts in this case, was, a question which the Judge had a legal right to decide; and we are of the. opinion that there was no evidence which could have authorized a rational and unprejudiced jury even to suspect that the will had been procured by any unlawful or improper influence. Consequently the instruction should not be deemed prejudicial, even though it had not been technically proper or most prudent.

The declaration of one of several devisees is evidence. against a will, is admissible evidence,not as a declaration or admission by all, but-as a circumstance entitled to some influence, and to which the tribunal trying the question of will or no will, should give such effect, under all the circumstances of' the case, as such a fact intrinsically merits.

The rule of evidence in relation to the admission of parishioners and Penn.* deoisions-

3. The only remaining and most formidable objection to the decree is, that the Circuit Judge refused to permit proof of conversations with the principal devisee, in one of which he expressed to the witness a desire to own his father’s homestead, which was afterwards devised to him, and in another of which, he showed the same witness the controverted will, and sought his advice as to its legal formality, and, upon being told that it might be prudent to consult a lawyer and have another will executed, he replied, “we have had too much trouble and difficulty in “getting this will to attempt getting another.”

The Circuit Judge seems to have been of the opinion that no declaration made by one of several devisees, could be competent evidence against the will. In this, however, we do not concur with him. We still approve the principle recognized on this subject in the case of Beall's will, (1 Ben. Mon. 399.) 1st. Because all the devisees have a common interest in every question affecting the validity of the will; and, 2ndly, Because no one of them, being a party, could be compelled to testify against it. And we are well satisfied that principle and analogy, as well as authority, sustain the qualified doctrine ruled in the case, supra, in Ben. Mon.—that is, that a declaration of one of several devisees or legatees, as to a fact material to the validity of the will, and against his own interest, is admissible, not as a declaration or admission by all, but as a circumstance entitled to some influence, and to which the tribunal trying the question of will orno will, should give such effect as, under all the circumstances of the case, such a fact should intrinsically merit.

The same principle, and even to a more unqualified extent, has been recognized in England in many cases, and especially in those of Parish settlements, in which it has been decided that a confession of a material fact by one parishioner is admissible as evidence against the whole of the parishioners, because, though their interests are several, yet the question involved is common to all, and no one of them could be compelled to testify against himself and associates: (11 East, 589.) And the Supreme Courts of Massachusetts and Pennsylvania have virtually applied the same rule in will cases, with the qualification that the expression of opinion merely, by one devisee, is not competent.

not reverse tho’ error may have been committed by the Circuit ingUr Evidence sibileXurniessmt!w &TmíuredPbybitexclusion, and shouiVhave^et testimony had the verdict diffcr8ni-

Being satisfied with the doctrine, as ruled in Ben. Mon. roe, we are not disposed to elaborate a discussion of it. We are, therefore, of the opinion that, as the facts offered and rejected in this case might have conduced, in some degree, to evince undue influence in the procurement of the will, the Circuit Judge erred in not admitting the proof of them as tendered.

But, nevertheless, upon mature consideration, we have come to the conclusion that this error should not be deemed injurious, and is, therefore, insufficient for revers-g ' ing the decree.

When all the facts are reviewed, it is evident that, in consequence of the testator’s physical prostration and the emínent danger his speedy dissolution, there had been much difficulty and trouble in the proper and effectual publication of his will, and which might have been reasonably apprehended again in an attempt at a republication. The principal devisee’s equivocal declaration as to that matter, therefore, would have been very remote and questionable evidence of coercion, fraud, or improper influence in procuring the publication. And the other facts proposed to be proved, would have been entitled to scarcely any effect, if any at all, as evidence of even importunity to make the will. But importunity alone would not invalidate.

When, however, we consider the evidence, as to the testator’s capacity and fixed determination, under all circumstances, both sometime before and even after the publication, the facts characterizing that publication, and the destitution of any eircumstarices, (independently of the rejected facts,) which could fend to the deduction that the will was not, in every proper sense, altogether the spontaneous and well considered production of his own mind, we cannot doubt that, had the rejected testimony been admitted, it would not have changed the finding of the jury; and, upon a deliberate survey of all the facts in all their bearings, we are clearly of the opinion that, if the rejected evidence had been admitted and the jury had decided against the will, it would have been the duty of the Court to set aside the verdict as unauthorized by any rational or allowable deduction from the whole evidence, dispassionately and intelligently considered. Then, as justice seems to have been done, and no other verdict than that rendered would have been allowable, it would, in our judgment, be an abuse of judicial discretion, to reverse the decree and direct a new trial of the issue, merely because there was a"n abstract error in rejecting testimony which should not have produced any other result.

Robinson <£• Johnson for plaintiff; Clay and WicMiffe for defendant.

Wherefore, the decree is affirmed.  