
    Dan Hobson et al. v. H. C. Moorman.
    
      (Jackson.
    
    April Term, 1905.)
    WILLS. . Admissibility of testator’s previous declarations to show incapacity and susceptibility to extraneous influences, but not to prove fact of undue influence.
    Where a will is sought to be impeached, or the probate thereof is resisted, on the ground of undue influence and testamentary-incapacity, the declarations of the testator made previous to the execution of the will, while admissible to show his mental incapacity and susceptibility to extraneous influences, are inadmissible as substantive evidence to prove the fact of undue influence.
    Cases cited, distinguished, and approved: Brown v. Mooore, 6 Yer., 272; Patton v.. Allison, 7 Hum., 320; Smiley v. Gambill, 2 Head, 164; Demonbreun v. Walker, 4' Bax., 199; Beadles v. Alexander, 9 Bax., 604; Linch v. Linch,. 1 Lea, 526; Maxwell v. Hill, 89 Tenn., 584; Peery v. Peery, 94 Tenn., 328; Kirkpatrick v. Jenkins, 96 Tenn., 85; Earp v. Edgington, 107 Tenn., 31; Throck-morton v. Holt, 180 IT. S., 552, 45 L. Ed., 663; Shailer v. Bum-stead, 99 Mass., 122; Rusling v. Rusling, 36 N. J. Eq., 603, 607; Calkins v. Calkins, 112 Cal., 296; Donovan’s Estate, In re., 140 Cal., 390; Jones v. Grogan, 98 Ga., 552; Bevelot v. Lestrade, 153 . Ill., 625; Yorty v. Webster, 205 Ill., 630; Grifiith v. Diffenderf-fer, 50 Md., 466; Middleditch v. Williams, 45 N. J. Eq., 726; Wiltsey’s Will, In re, 122 Iowa, 423; Waterman v. Whitney, 11N. Y., 157; Herster v. Herster, 122 Pa., 239; Townsend’s Estate, In re, 122 Iowa, 246; Power’s Ex’r v. Powers (Ky.), 78 S. W. 152; Marx v. McGlynn, 88 N. Y., 357, 374; Meeker v. Boylan, 28 N. J. Law, 274; Bush v. Bush, 87 Mo. 480; Pemberton’s Case, 40 N. J. Eq., 520; McConnell v. Wildes, 153 Mass., 487; Eástis v. Montgomery, 95 Ala., 486; Ormsby v. Webb, 134 U. S., 47, 33 L. Ed., 805.
    
      FROM FAYETTE.
    Appeal from the Circuit Court of Fayette County.— R. E. Maiden, Judge.
    Bullock & Timberlake and Chas. A. Stainback, for Hobson.
    T. K. Riddick, T. J. Flippin, Wm. M. Mayo, and- C. W. Crawford, for Moorman.
   Mr. Justice McAlister

delivered the opinion of the Court.

This is an issue of devisamt vel non from the circuit court of Fayette county. The will in controversy was executed by Mrs. Jane B. George, on the 23d day of October, 1899, and is attacked upon the ground of undue influence and want of testamentary capacity. The contestants are Lizzie Hobson, John D. Boyd, and Harry Boyd, family servants of the testatrix, and legatees under a prior will executed on the 29th day of June, 1898. The proponent of the present will is H. C. Moorman, who was appointed administrator cum testa-mento annexe. The case has been tried several times in the circuit court and once in this court, at the April term, 1902. On the first trial in the circuit court, Jan-nary term, 1901, a verdict was rendered against the validity of the will. A new trial was granted as to the beneficiaries in said will, except Mrs. Goosman; but as to her a new trial was refused, upon the ground that the evidence showed that she had exercised an undue influence over the testatrix in procuring a testamentary benefit. On the second trial at the May term, 1901, the validity of the will w;as sustained as to the remaining beneficiaries. On appeal to this court, the judgment below was reversed and the cause' remanded, upon the ground that the paper writing was indivisible, and there should be a new trial touching the validity of the entire instrument. On the remandment the case was again tried at the March term, 1903; the jury disagreeing and a mistrial being entered. The last trial, in November term, 1904, resulted in a verdict sustaining said paper writing as the last will and testament of M'rs. Jane B. George. The contestants appealed and have assigned numerous errors. As already stated the will in controversy was executed on the 23d day of October, 1899, and is as follows:

“I, Jane B. George of Somerville Tennessee, do make and publish this as my last will and testament, hereby revoking and making void all others by me at any time made.
“First — I direct that my funeral expenses and all debts, if any I owe, be paid as soon after my death as possible, out of any money that I may die possessed of.
“Second — I will, devise and bequeath to George Grossman, of Somerville, Tennessee, one thousand dollars in money.
“Third — I will, devise and bequeath all the balance of my property, real, personal and mixed, of every character and description, wherever situated, to the following named persons, to wit: To Mrs. Lizzie Riley, John H. McElwee, Louis McElwee, Mrs. Mattie P. Goosman, the children of Mrs. Emmaline Ervin and the children of Jerome McElwee, the children of each taking one share, it being my intention that' my entire estate, after paying burial expenses and debts and legacy provided for in item second, shall be equally divided, share and share alike, among the persons named, that is, one share to Mrs. Lizzie Riley, one share to John H. McElwee, one share to Louis McElwee, one share to Mrs. Mattie F. Goosman, one share to> the children of Mrs. Emmaline Ervin, one share to the children of Jerome McElwee, thus making six equal shares.
“Fourth — I do not appoint any executor; the court can appoint some one to execute this will and require proper bond, and security.
“In witness whereof, I do, to this, my will, set my hand, this 23d day of October, 1899.
“Jane B. George.
“Signed and published in our presence, and we have subscribed our names hereto, as witnesses, at the request of the testatrix, in her presence and in the presence of each other.
“This Oct. 23rd, 1899.
“H. 0. MOORMAN.
“Wm. B. Granberry.-’-’

This latter will was essentially different from the first will, executed on the 29th of June, 1898. In the first will, the testatrix devised to her nephew, John Harvey McElwee, all her real estate and household •goods, together with a specific legacy of $4,500, and he was also made residuary legatee. The last will devised to him an undivided one-sixth interest in the estate. In the first will the testatrix bequeathed to Lizzie Hobson a legacy of $250, while under the last will she was entirely excluded. John D. Boyd and Harry Boyd, under the first will, were bequeathed the interest on $250 each annually, while the last will gave them nothing. In the first will Eev. J. F. Lloyd was left a legacy of $250, while he is not mentioned at all in the last will. The first will gave to Mrs. Lizzie Eiley, niece- of the testatrix, $1. Under the last will she takes an undivided one-sixth interest in the estate, after deducting the legacy to George Goosman. Louis McElwee, a nephew under the first will was given the sum of $1, while under the last will he takes an undivided one-sixth interest in the estate, after deducting the legacy. Under the first will the testatrix made no bequest whatever to Mrs. Mattie Goosman, while under the last will she is given an undivided one-sixth interest in the estate, after' deducting the legacy given to her son George. The first will gave to Jimmie and Lizzie Ervin, children of Em-maline Ervin, a legacy of |500 each, while the last will gives them an undivided one-sixth interest in the estate, after deducting George Goosman’s legacy. In the first will John Harvey McElwee was nominated executor to act without bond, while no appointment of an executor is made in the last will.

These are the cardinal and differential features of the two wills. It is said in the brief of counsel for the proponent, that the real contestant of the present will is John Harvey McElwee, although nominally Lizzie Hobson and John and Harry Boyd, legatees and family servants of the testatrix, are the contestants of record, who are prosecuting this appeal in forma pauperis„ The theory of contestants is that the will executed on the 29th of June, 1898, was the real testamentary act of the testator, executed while in the possession of all of her intellectual faculties and entirely removed from any dominating influences. It is said that, in executing the first will, she took counsel of her spiritual adviser, Rev. J. F. Lloyd and of her regular attorney, Hon. E. R. Scruggs.

But it is further said that, shortly after the execution of the codicils to the first will, in April and September, 1899, Mrs. George sustained a very serious fall, which confined her to her bed, and that while so prostrated she fell under the influence of Mrs. Goosman, Mrs. Riley, and others, who induced her to make the second mil, which did not represent her testamentary wishes, but in reality was the testament of those exerting this undue influence. It is, moreover, contended that when the first will was executed Mrs. George was of sound mind and disposing memory, while at the date of the execution of the second will she was in a state of senile dementia, which rendered her incapable of performing a testamentary act.

On the other hand, the theory of the proponent- is thus stated in the language of his counsel, which we quote from his brief as follows:

“Up to June, 1898, Mrs. George had intended to bequeath her property to Mrs. Goosman, her son, George Goosman, and to the nieces and nephews of Mrs. George herself. Mrs. Goosman was the second cousin and adopted daughter of Mrs. George. Their relations were as intimate and friendly as they could have been, until June, 1898, when Mrs. George was led to believe that Mr. and Mrs. Goosman tried to poison her in order to get her property. Under the influence of this belief, she made a will, on June 29, 1898, disposing of her property in an entirely different way from what she had previously contemplated. There is no pretense that this belief was well founded, but Mrs. George persisted in it for several months. Proponent’s theory is that she was encouraged in this belief by Mrs. Hazle-wood, Lizzie Hobson, and John Harvey McElwee, but they deny it. Early in the year 1899, however, she became convinced that she had been poisoned, and immediately began to change her will. She added one codicil in April, 1899, and one in September, 1899. These codicils changed the will so much that, to use her own expression, she ‘hardly knew what was in it.’ So she finally resolved to make a new will altogether, which she did on October 23, 1899. This contained practically the same disposition of her property which she intended to make prior to the poisoning episode, and is the will now under contest.”

We shall not, at this point, enter upon an examination of the evidence in support of these respective theories, but will have occasion, in the consideration of the assignments of error on the admission and exclusion of evidence, to make an additional statement of the facts. We will say, however, that our examination of the record has satisfied us that the verdict of the jury and the judgment of the court is supported by material evidence.

The first assignment of error made by contestants is based upon the action of the trial judge in excluding evidence of the declarations of the testatrix, made prior to the execution of the will in issue, for the purpose of establishing undue influence. On this subject the court charged the jury as follows:

“Gentlemen of the jury, during the progress of this trial the court permitted the parties to introduce proof of declarations alleged to have been made by Mrs. George both previous and subsequent to the execution of the will in controversy, and the court has already said to you that, if you find independent and substantive evidence in this case of undue influence, you might loot to these previous and subsequent declarations of Mrs. George, along with the other proof in the case, for the purpose of determining what the condition of her mind was at the time she performed the alleged testamentary act, and the court now instructs you especially that you cannot look to and consider any declarations made by Mrs. George, previous or subsequent to the execution of the will in controversy, as evidence of undue influence. Such' declarations — that is to say, declarations made by Mrs. George before or subsequent to the execution of the will in controversy — are not evidence of undue influence, and cannot be looked to and considered by you for that purpose; but, if you find independent evidence of undue influence in this case, then you may look to such declarations along with all other proof in the case, for the purpose of determining the condition of Mrs. George’s mind at the time it is alleged she executed the will in question, as I have already instructed you, but such declarations are only competent for this purpose.”

As illustrating the effect of the charge of the court in excluding evidence of previous declarations on the* part of the testatrix, counsel for contestants have formulated the following propositions, viz.:

“(1) The hostile feelings of testatrix for Mrs. Goos-man and her intention to exclude her from any testamentary disposition, evidenced by her declarations to third parties, her letters, and the first will, were competent and material facts to be considered as directly bearing upon the issue of undue influence; that is to say, whether the change in the will in issue from the previously expressed feelings and intention of testatrix was attributable to the volition of the testatrix or to the exercise of an undue influence.

“(2) That the affection of testatrix for J. H. McElwee, and her intention to make him the main object of her bounty, evidenced by her declarations to third parties, her letters, the first will, and memorandum prepared for draft of the same, were competent and material facts to be considered as directly bearing upon the issue of undue influence; that is to say, whether the change in the will in issue from the previously expressed feelings and intentions of the testatrix was attributable to the volition of testatrix or an undue influence.

“(3) That the feelings and testamentary intentions of testatrix towards Lizzie Riley and Louis McElwee, and her reasons therefor, evidenced by her declarations to third parties, the first will, and said memorandum, were competent and material facts to be considered as directly bearing upon the issue of undue influence; that is to say, whether the change of feeling and intention indicated in the will in issue from the previous intentions and feelings of testatrix was attributable to the volition of testatrix or an undue influence.

“(4) That the feelings and testamentary intentions of testatrix toward her minister and family servant, evidenced by her declarations to third parties, the said first will, and said memorandum, were for the reasons before indicated competent and material facts to be considered npon tbe issue of undue influence.

“(5) That tbe state of mind of testatrix as to tbe disposition of ber property at tbe time of tbe execution of ber first will — that is, ber intention to make ber nepbew ber main beneficiary in ber first will, in consideration of bis taking charge, in ber old age, of ber affairs — is a material and competent fact bearing directly upon tbe issue of undue influence; that is to say,whether ber failure to keep ber promise and ber radical change from ber intentions to do so are attributable to ber volition or an undue influence.

“(6) That testatrix’s state of mind, with regard to Mrs. Goosman having a power or influence over ber she could not resist, was a competent and material fact to be considered as directly bearing upon tbe issue of undue influence; that is to say, it was a material fact which tbe jury might consider,'in view of tbe radical changes, indicated by tbe last will, from tbe previously expressed feelings and intentions of testatrix, as tending to show tbe last will was not of tbe volition of testatrix, but tbe result of undue influence.

“Also, tbe same was competent and material to show that testatrix’s mind was easily or readily susceptible to tbe influence and control of Mrs. Goosman.

“(7) That tbe declarations of Mrs. George, to tbe effect that Mrs. Goosman was intimidating ber and endeavoring to get ber to make another will, were competent and material evidence to be considered as bearing directly upon the question of undue influence.”

It will be observed, from a careful examination of the foregoing propositions, that the majority of them proceed upon the idea that the trial judge excluded the declarations of testatrix, tending to show her feelings, testamentary purposes, intentions, etc. This is a misconception of the action of the trial judge. On this subject the trial judge charged the jury as follows:

“You may also look to and consider her declarations and statements at the time of the alleged testamentary act and drafting of said alleged will, if she made any, as well as • all her declarations and statements, both subsequent and prior to the execution of the will, as to her intentions as to her property and her kinsmen, etc., etc., whether friendly or unfriendly, as well as to any previous will or wills which she may have made, as expressive of her then purpose and intention.

An examination of the record will show that a very wide scope was given to' the introduction of the declarations of the testatrix as evidence, and that they were held competent by the circuit judge in his instructions to the jury for every purpose, except to establish the fact of undue influence.

The cardinal inquiry presented upon the first assignment of error is whether as a matter of law such declarations were competent as substantive evidence of undue influence. It is conceded on the brief of counsel for contestants that subsequent declarations are not competent evidence to establish undue influence. The law on this subject is well settled in this State. Peery v. Peery, 94 Tenn., 328, 29 S. W., 1; Earp v. Edgington, 107 Tenn., 31, 64 S. W., 40. But the contention now made is .that there is a difference in principle between declarations of the testatrix, made prior to' the execution of the will, and those subsequently made. Hence it is earnestly insisted that, while the evidence of subsequent declarations has been uniformly rejected, proof of prior declarations, tending to establish the fact of undue influence, have been received in this State. It will be useful at this point to review our decisions on this subject, at least so far as they are claimed by contestants to support the propositions now propounded. The first case referred to is that of Brown v. Moore, 6 Yerg., 272. In that case it appeared that on the trial in the circuit court the contestants offered to prove that James Lang-ford, devisee in the will, acknowledged that undue influence was exercised to induce the making of the will, and that forged letters were read to testator by the de-visees, before the making of the will, to exasperate him against his other children, who were disinherited. The court below rejected this testimony; but, on appeal, this court held that said evidence was competent. This case did not involve proof of declarations on the part of testator tending to show undue influence. It .appeared from the record that the testator had long spoken of his intention to give his estate to his son, William Moore, and of excluding those whom he disinherited from any participation in his estate. But this latter proof was in conformity with the well-recognized rule that proof of testamentary intentions and purposes on the part of the testator may be shown by his declarations.

The next case cited is that of Patton, Executor, v. Allison, 7 Humph., 820. In that case it was merely held that previous declarations of the testator, in conformity with his will, are admissible for the purpose of showing knowledge on his part of the contents of his will. It was intimated in that case that declarations of the testator, of a contrary character, were also admissible; but this point was not decided and did not arise in the record, and the language of the court was obiter.

The next case cited is Smiley v. Gambill, 2 Head, 164, wherein it was held that the revocation of a will is a question of intention, and the acts, conduct, and declarations of the maker of the will are admissible for the purpose of ascertaining whether it was revoked. Demonbreun v. Walker, 4 Baxt., 199, simply holds that written declarations of the testator are competent to show his intentions as to the disposition of his property. In that case a paper purporting to have been executed as a will, years anterior to the date of the will in contest, was held competent for this purpose.

In Maxwell v. Hill, 89 Tenn., 584, 15 S. W., 253, it was held that the testator’s declarations, whether made before or after the execution of his will, with reference to the dispositions he proposed to make, or had made, of his property, are competent evidence to show whether op not he fully comprehended and approved the will as written.

The case of Beadles v. Alexander, 9 Baxt., 604, held that subsequent declarations of the testator were competent to show that the testator had in fact signed his will in the presence of both of the subscribing witnesses.

The case of Linch v. Linch, 1 Lea, 526, approved the rule announced in Beadles v. Alexander, supra. In the Lineh Case the question of undue influence was probably the main issue. The trial judge had instructed the jury as follows: “When you come to. consider the question of undue influence, the declarations of the testator in reference to his will cannot be considered by you, unless they were made at the time the will was written, or executed, or republished, in the presence of attesting witnesses, or declarations to or in the presence of his wife.” This court held the charge erroneous, and referred to the case of Beadles v. Alexander, supra,, as having settled the law to the contrary. It does not appear, from the published opinion in that case, what was the character of the declarations sought to be introduced, whether antecedent or subsequent to the execution of the will.

The next case cited is Peery v. Peery, 94 Tenn., 328, 29 S. W., 1. The will in that case was attacked because of undue influence and mental infirmity of the testator. The point ruled was that subsequent declarations of the testator that he had to make the will as he did to have peace a,t home are admissible to show his mental condition at the time of the execution of the will, but not to show undue influence. If there be other evidence of undue influence, then such declaration could be looked to to determine the effect which such influence had upon the testator, but not to prove the substantive fact of undue influence. The admissibility of antecedent declarations was not involved or determined. The next case cited is Kirkpatrick v. Jenkins, 96 Tenn., 85, 33 S. W., 819. It involved an issue of devisavit vel non, and the contest was based on the want of mental capacity and undue influence. Said the court, through Judge Caldwell, viz.: “Though the cases are not harmonious, we think the great weight of authority and reason is to the effect that subsequent declarations of an alleged testator may be considered by the jury upon an issue of mental incapacity, but that they cannot be considered by the jury upon an issue of undue influence, unless there be independent proof indicating the presence of undue influence, and then only to show a condition of mind susceptible to such influence and the effect thereof upon the testamentary act.” No question arose in that case in respect of the competency of antecedent declarations as primary evidence of undue influence. The last case in which the question of declarations was considered by this court is that of Earp v. Edgington, 107 Tenn., 31, 64 S. W., 40. There was no question of antecedent declarations, but the ruling of the court related to subsequent declarations, holding them to be incompetent. The court cited with, approval the opinion of Justice Peckham, in Throckmorton v. Holt, 180 U. S., 552, 21 Sup. Ct., 474, 45 L. Ed., 663, in which it was said, viz.: “The declarations are purely hearsay, being merely unsworn declarations, and, when no part of the res gestae, are not within any of the recognized exceptions admitting evidence of that kind. Although in some of the cases the remark is made that declarations are admissible which tend to show the state of the affections of deceased as a mental condition, yet they are generally stated in cases where the mental capacity of the deceased is the subject of the inquiry, and in these cases his. declarations on that subject are just as likely to aid in answering the question as to mental capacity as those upon any other subject. But, if the matter in issue be not the mental capacity of the deceased, then such unsworn declarations, as indicative of the state of his affections, are no more admissible than would be his sworn declarations as to any other fact.”

In the Throckmorton Case, Justice Peckham, after citing the authorities on both sides of the question, said: “After much reflection upon the subject, we are inclined to the opinion that not only is the weight of authority with the cases which exclude the evidence both before and after the execution, but the principles upon which our law of evidence is founded necessitate that exclusion.” In the present case.the will is sought to be impeached, both on account of undue influence and for want of testamentary capacity.

Mr. Wigmore, in his exhaustive treatise on the Law of Evidence (volume 3, section 1734), divides the declarations of a testator into seven different classifications, and states that in using any of these it is essential to keep in mind (1) what is the fact which the utterance is offered to evidence; (2) whether this fact is relevant, and in what way; (3) supposing it to he relevant, whether the utterance is admissible to evidence it. Under the fifth classification the author considers declarations that a particular will was procured by fraud or undue influence. At section 1738 the author treats this subject as follows:

“Utterances of the fifth and sixth classes, already enumerated, may be regarded in several aspects. The chief distinction is between their use as direct assertion of the fact of fraud or undue influence, for here they are met immediately by the hearsay rule, and their use as indicating directly or indirectly a condition of mind relevant to the issue, for here they are admissible either as circumstantial evidence or as statements of a mental condition under the present exception.

“The testator’s assertion that a person named or unnamed, has procured him, by fraud or by pressure, to execute a will, or to insert a provision, is plainly obnoxious to the hearsay rule, if offered as evidence that the fact asserted did occur.

“1868, Colt, J., in Shatter v. Bumstead, 99 Mass., 122: ‘When used for such purpose, they are mere hearsay which, by reason of the death of the party whose ■statements are so offered, can never be explained or contradicted by him. Obtained, it may be, by deception or persuasion, and always liable to> tbe infirmities of human recollection, tbeir admission for such purpose would ■go far to destroy the security which it is essential to preserve.’ They are thus inadmissible, so far as they form ‘a declaration or narrative to show the fact of fraud or undue influence at a previous period.’ * * *

“But these utterances may be nevertheless availed of as evidence of the testator’s mental condition, if the latter fact is relevant. Though the issue is as to his mental condition, with regard to deception or duress at the time of execution, yet his mental state, both before and afterwards, is admissible as evidence of his state at that time (on the principles of sections 230, 242, 394, 395, ante). Thus the question is reduced to a simple one, namely, what particular mental conditions of the testator, thus evidenced, are material as being involved in the broader issue of deception or undue influence? There are here recognized by the courts two distinct sorts of mental condition.

“The existence of undue influence or deception involves incidentally a consideration of the testator’s incapacity to resist pressure and his susceptibility to deceit, whether in general or by a particular person. This requires a consideration of many circumstances, including his state of affections or dislike for particular persons benefited or not benefited by the will, of his inclinations to obey or to resist these persons, and, in general, of bis mental and emotional condition, with reference to its being affected by any of tbe persons concerned. All utterances and conduct, therefore, affording any indication of this sort of mental condition, are admissible, in order that from these the condition at various times not too remote may be used as the basis for inferring his condition at the time in issue. This use of such data is universally conceded to be-proper.

“1883, Dixon, J., in Rusling v. Rusling, 36 N. J. Eq., 603, 607: ‘When undue influence is set up in impeachment of a will the ground of invalidity to be established is that the conduct of others has so operated upon the testator’s mind as to constrain him to execute an instrument to which of his first will he would not have assented. This involves two things: First, the conduct of those by whom the influence is said to have been exerted; second, the mental state of the testator, as produced by such conduct, which may require a disclosure of the strength of mind of the decedent and his testamentary purposes, both immediately before the conduct complained of and while subjected to its influence. In order to show the testator’s mental state at. any given time, his declarations at that time are competent, because the conditions of the mind are revealed to us only by its external manifestations, of which speech is one. Likewise the state of mind at one time is competent evidence of its state at other times not too remote, because mental conditions have some degree of permanency. Hence, in an inquiry respecting the testator’s state of mind, before or pending the exertion of the alleged influence, his words, as well as his other behavior, may be shown for the purpose of bringing into view the mental condition which produced them, and, through that, the antecedent and subsequent conditions. To this extent his declarations have legal value. But, for the purpose of proving matters not related to his existing mental state, the assertions of the testator are mere hearsay. They cannot be regarded as evidence of previous occurrences, unless they come within one of the recognized exceptions to the rule excluding hearsay testimony.’ ”

Mr. Elliott, in his work on Evidence (volume 1, secs. 5333), says: “Declarations of a testator are received to corroborate direct testimony as to a will alleged to be a forgery or to have been executed under undue influence or force,” etc., “. . . and in cases where fraud is the issue the statements of the testator are often admissible as declarations of a state of mind. So, also, in cases of undue influence. But such declarations are admitted to show a condition or state of mind, rather than to show undue influence of themselves. And in most jurisdictions there must be some other evidence of undue influence before they would be admitted as against the will.”

Mr. Elliott, again, in volume 3, secs. 2494, writes, viz:

“Where declarations are narrations by the testator of past events, they are generally hearsay, and are not competent for this reason, even though the events narrated constitute acts of undue influence. But declarations made at the time of the execution of the will may be admissible as part of the res gestae, or declarations at other times may be admissible as the best evidence of a particular fact, in some instances, or to show the testator’s motives and state of mind. Declarations at other times will not, however, usually be entitled to consideration upon the question of undue influence, unless there is other evidence in that direction” — citing Calkins v. Calkins, 112 Cal., 296, 44 Pac., 577; Donovan’s Estate, In re, 140 Cal., 390, 73 Pac., 1081; Jones v. Grogan, 98 Ga., 552, 25 S. E., 590; Bevelot v. Lestrade, 153 Ill., 625, 38 N. E., 1056; Yorty v. Webster, 205 Ill., 630, 68 N. E., 1068; Griffith v. Diffenderffer, 50 Md., 466; Shailer v. Bumstead, 99 Mass., 112; Middleditch v. Williams, 45 N. J. Eq., 726, 17 Atl., 826, 4 L. R. A., 738; Wiltsey’s Will, In re, 122 Iowa, 423, 98 N. W., 294; Waterman v. Whitney, 11 N. Y., 157, 62 Am. Dec., 71; Herster v. Herster, 122 Pa., 239, 16 Atl., 342, 9 Am. St. Rep., 95; Kirkpatrick v. Jenkins, 96 Tenn., 85, 33 S. W., 819. So held, whether made before or after. Townsend’s Estate, In re, 122 Iowa, 246, 97 N. W., 1108. But see Powers’ Ex’r v. Powers (Ky.), 78 S. W., 152; Marx v. McGlynn, 88 N. Y., 357; Griffith v. Diffenderffer, 50 Md., 466; Waterman v. Whitney, 11 N. Y., 157, 62 Am. Dec., 71; Meeker v. Boylan, 28 N. J. Law, 274.

The author then considers the admissibility of subsequent declarations and concludes the section as follows :

“In short, a testator’s declarations, whethermadebe-fore or after the execution of the will, aside from the time of execution itself, are admissible chiefly to show his mental condition or the real state of his affections; and they are received, rather as his own external manifestations, than as evidence of the truth or untruth of facts relative to the exertion of undue influence upon him. They may corroborate, but the issue calls for its own proof from the living. And the more remote such declarations from the time when the will was executed, the less becomes their value. Declarations impertinent to the issue, moreover, are not admissible at all” — citing Bush v. Bush, 87 Mo., 480; Middleditch v. Williams, 45 N. J. Eq., 726, 17 Atl., 826, 4 L. R. A., 738; Herster v. Herster, 122 Pa., 239, 16 Atl., 342, 9 Am. St. Rep., 95; Pemberton's Case, 40 N. J. Eq., 520, 4 Atl., 770; McConnell v. Wildes, 153 Mass., 487, 26 N. E., 1114; Eastis v. Montgomery (Ala., 1891), 95 Ala., 486, 11 South., 204, 36 Am. St. Rep., 227; Ormsby v. Webb, 134 U. S., 47, 10 Sup. Ct., 478, 33 L. Ed., 805.

In Marx v. McGlynn and Others, 88 N. Y., 374, Earl, J., held that diaries kept and letters written by a testator, either before or after the execution of the will, while proper evidence, as bearing upon the mental capacity, and the condition of mind of the testator, with reference to the object of his bounty, are not' competent evidence of the facts stated in them, or to prove frand or undue influence. The court said: “They are in the nature of hearsay evidence, declarations of the deceased, which are incompetent for the purpose of defeating or destroying the will or any of its provisions. They are competent only as hearing upon the condition of mind of the testatrix, at the time of the execution of the will. Such memoranda or declarations, whether made before or after the execution of the will, are competent as bearing upon the testator’s mental capacity. They are also’ competent as bearing upon the condition of the testator’s mind, with reference to' the objects of his bounty. They may be given in evidence for the purpose of showing his relations to the people around him, and to the persons named in his will as beneficiaries. They are, however, entitled to no weight, in proving external acts, either of fraud or undue influence.”

Now, recurring to the charge of the court in the present case, we have already seen that his honor distinctly instructed the jury that they might look to the previous and subsequent declarations of Mrs. George, along with all the other proof in the case, for the purpose of determining what the condition of her mind was, at the time she performed the alleged testamentary act. The authorities already cited announce this rule so distinctly charged by the trial judge.

It is insisted, however, that he erred' in his instruction that they could not look to these declarations as substantive evidence of undue influence, or, as he expressed it in another place, “such declarations could not be regarded as evidence of or as proving the fact of undue influence.”

This review of the authorities satisfies us that the Aveight of opinion both of the text-writers and appellate courts is against the admission of ante-testamentary declarations to establish the fact of undue influence, and we are of opinion this is the correct rule. But it is insisted on behalf of the contestants, that there are at least two cases in this state in which this court has affirmed the contrary of this view. The case mainly relied on is Linch v. Linch, 1 Lea, 526; but, as already stated, the reported opinion of the court does not affirmatively show that any antecedent declarations were involved, or their admissibility as primary evidence of undue influence adjudged. In that case the court referred to Beadles v. Alexander, 9 Baxt., 604, as a precedent controlling its decision. An examination of Beadles v. Alexander, demonstrates that no antecedent declarations were involved, but that it related alone to declarations made by the testator, subsequent to. the execution, to establish the fact that he had signed the will in the presence of the attesting Avitnesses.

We are also referred to the case of Persons, Adm’r, v. Hill, Shelby Law, decided at the April term, 1898, Jackson, as holding in favor of the admissibility of previous declarations. There is no opinion or memorandum of the court extant, indicating the precise ground upon which that case was decided, and it does not affirmatively appear that the point for which it is now cited as a precedent, was adjudicated at all.

This question has been much mooted in the courts of very many of the States, hut has never been distinctly decided in this State, so far as we are apprised by any reported opinion.

In our opinion, the great weight of authority confirms the rule, announced by the circuit judge in his instructions to the jury, that such previous declarations are always admissible for the purpose of illustrating the mental capacity of the testator and his susceptibility to extraneous influence, and also to show his feelings, intentions, and relations to his kindred and friends, but such declarations are not "admissible as substantive evidence of undue influence.

The remaining assignments of error have all been considered in a written memorandum, but in the opinion of the court none of them are well taken. The main questions debated at the bar are considered in this written opinion, and for the reasons herein stated the judgment of the circuit court is affirmed.  