
    (Pittsburg,
    September 23, 1828.]
    M‘CULLY against BARR.
    APPEAL.
    Evidence is not admissible in ejectment, in which the question is as to the validity of a will, of testimony or admissions in a suit brought between other parties, although the question is the same.' • ■'
    A letter, purporting to be an answer to one written by the testator, is not evidence to show the contents of the supposed letter of the testator.
    It is not a ground to grant a new trial in a question on the capacity of a testator, that the judge refused to .let certain accounts and receipts, produced in evidence, to be taken out by the jury,' though it ought regularly to have been permitted. ’ ' -
    Appeal from the decision of Htjston, J., holding a Circuit Court in Pittsburg. 1
    This case was as follows: — The late Captain N. Irish of Pitts-burg,' made a will in 1809; on the death of a son he made another will, dated in 1813, and regularly cancelled the first. Both these papers were entirely in the hand-writing of the testator, and it was under the latter (which was-admitted .to be his will, unless a subsequent paper, dated the 7th of November, 1814, was a.valid will,) the plaintiff claimed a house and lot, for w’hich this suit was brought. ■ '
    The eyidence disclosed, that in February, 1814, Captain Irish had a paralytic stroke, which confined him for some time. One witness (his widow,),proved,- that his mind was affected from’the time of his attack, in such a'way as to render him incapable of attending to his business. In October following, he had a second attack of the same kind. The precise date of this latter attack was not proved, but it was during the session of the presbyterian synod in Pittsbiirg: that session commeneed on the second Tuesday of October, 1814, and lasted about-two weeks.-
    Many witnesses were examined for the plaintiff, and all of them except Mrs. Irish, above-mentioned, proved, that after the first attack, and througbi:fhe summer of 1814, Captain Irish was capable of some attention, at least, to business, and more than- one, that he was capable of attending to his ordinary, business; but they all proved, that after the second attack, bis mind was almost totally destroyed; that he did no business; entered into no conversation; frequently did not appear to know those who had been his most intimate acquaintances; often did 'not attend to, or answer questions; that he could not engage in conversation so as to answer ány question beyond-yes or no; would weep or laugh in short succession without any visible cause for either. The defendant, who claimed under William B. Irish, a son, called witnesses to prove his capacity during thq summer of 1814, and one who proved it in the succeeding year.
    The will of the 7th of November, 1814, was.provea as follows:— L.Stewart being sworn, on looking at the paper said, “I wrote this paper at the request of William B. Irish. I don’t recollect seeing the old gentleman on the subject. No other person than William spoke to me about it. I gave it to William. He gave me the substance either in writing or verbally', and I wrote it down.” Repeated, that he did not remember whether he gave a memorandum in writing, or took one from his instructions, William paid him for writing it. .Did not charge Captain Irish. On a cross-examination, adhered to the above, and could not be more particular.
    The defendant also produced the books of'Captain Irish, in which there were entries of his renewal as endorser.of a note in April, June, and August, and all correctly, made; also, entries of rents due.him, of monies paid him, and of articles sold during the summer of .1814, in the defendant’s accounts, of about thirty persons.' In three or more of, these accounts, were .entries after the time of the second paralytic attack, about which there was some dispute, submitted to the jury; also, several of these accounts were copied off from the books, and two ieceipts, both dated in the early part of the summer of 1814, were produced, in the hand-writing of Captain IHsh. ■ . - ■ • ' • ■ . •
    The proof of the execution of the will of 1814, was as follows:— R. T., a witness to the will, proved, that one of the other .witnesses to the yvill, asked him to go to' witness Captain Irish’s will. He went, and found Captain Irish in the house of William, which adjoined his father’s,' and there was. a door connecting the two houses; that one of the witnesses inquired of Captain Irish how,he was; that William produced'a table near his father,'on which the will was-lying; that the old gentleman said, “ I wish you to witness my will,” and placing his hand on the paper said, “this is my will, and this is my signature:” it had been signed before. The witnesses signed it. He said, “I was of opinion that he was capable,”,but was not aware of the importance of attending to that; never thought it would be called in question. The will was not read, nor any thing said about it. The other two witnesses were dead; were admitted to be men of good character; were all acquainted with Captain Irish. All the wills were attested by three witnesses, and two of these witnesses had been called to attest all the three. .
    Mrs. M'Cully, was a daughter of Captain Irish; her sister, Mrs. Smith,had brought an ejectment, reported, Smith v. Irish, 8 Serg. & Rawle, to contest the same will. The defendant’s counsel offered to read a letter from the late General Tanyhill to Captain Irish, dated Washington city, 12th of October, 1814, which purported to be .an answer to one received from Captain Irish; and in order to introduce it, offered to prove, that in the cause of Smith v. Irish, Mr. Mountain, the counsel of Mrs. Smith, had stated, that the papers of General Tanyhill had come -into his possession; that among them he had seen a letter of Captain./mA to General Tanyhill, but could not then find it.
    The court, without inquiring whether Mr. Mountain ,had stated this on oath, or admitted it as counsel of Mrs. Smith, saidj that was a cause between different parties, ended before this commenced; neither the' admission of Mrs. Smith’s counsel, nor the testimony of witnesses in that cause are evidence in this. And the court refused to permit the letter to be read. There was no evidence offered to prove, whether it ever came to the hand of Captain Irish, or whether he understood it, •
    The question was then as to his capacity, and as to whether it was his will, or one made for him. The court thought these papers immaterial, and did not permit them to go to the jury.
    After the charge to the jury, the defendant asked to send out the account and receipts above-mentioned to the jury. In the argument of the plaintiff’s counsel, they had both conceded, that Capr tain Irish was capable of business up to the second attack.
    Huston, J. charged the jury:—
    Every man has the right to dispose of his property, and ought not to be deprived of this right — Is supposed cápable to dispose of it; and every man capable of managing his affairs, and making ordinary contracts, is capable of making a will.
    The same wish to have the power of -disposing of property by will, which' all feel, will lead, every man to wish that nothing shall be hereafter taken as his will which is not so, but is the result of importunity and imposition on his weakness. Every man may, by disease or visitation of God, lose his mind; and there is nothing more distressing in the contemplation of this most terrible of all evils, than to consider that in such a situation the ties of nature or affection' are often lost — sometimes reversed — and that a will made then, may he contrary to the wishes and designs of the whole previous life. Men, wiser and richer, and in happier stations than any, of us, have been reduced to this situation; and, it would be a great evil, if any writing could be established, which writing was at variance with all his intentions when in possession of all his faculties. The will of an insane man, if one who has no mind or memory, ought to be nothing; he must be of soundly disposing mind and memory; he must be able to take a view of his estate, and of his-family; to consider the state of his affairs, and of his connexions, and to reflect on .them: and the man who can do this without the several parcels of his property being mentioned to him, or the names of his family being brought to his recollection, can generally make a will. If each item of property must be named to. him,; in order that he may not omit it; if each devisee must be named, or would be' forgotten; if a view of the whole cannot be collected or comprehended by the mind of the testator, I should say that he was not of a-sound and disposing mind and memory.
    A paper offered as a will, must be proved to be the will of the testator; he-must have written it, or directed it to be written, or directed the devises, or must have read it, or heard it read, and approved of it,'or- there is no evidence of its being his will.
    
    To be sure, it is not always necessary to prove, that he directed it, that he read it or heard it read, by persons who saw or heard him read it, br who read or heard others read it to him; for aman in ordinary circumstances, and of ordinary mind, would not sign and call others to witness a paper of which he did not know the contents. But in the case of a man not in his ordinary situation, nor of his usual mind, a jury will do well to require some evidence more than what results from the fact of calling witnesses to attest a paper already- signed. ' , '
    Ifthére is proof, that the will was directed to be written, not by the testator, but by another, and that others not only directed the will to be written, but directed its different bequests, and if to all this, that will gives to the person who directed it much more than a child’s part; if it was executed too, not in the testator’s house, but in that of the devisee; if to all this, other dispositions, made by the testator himself, while undoubtedly sound in mind and body, are produced, and these made a very different’ disposition of his property, . reason and law equally require' that the jury should have proof that it is the will of the testator, 'not1 a will made for him .by another. - ' . '
    I do not say there is no case where the will, even of a weak man, ought not to be supported, though there Was no positive proof that he directed it, or read it, or heard it read; but 1 do say, when the proof is, that the principal devisee directed the will, and the terms of it, a jury ought to deliberate seriously before they say such paper is the will of an old and weak man, when there is no proof, that it was read by him or to him. And this more especially, if the paper differs essentially from formes’ dispositions, unquestionably made by himself, and before his mind was impaired. The case presents two questions:—
    I. Was the testator at the execution of this paper capable to make a will? or was he of a sound and disposing mind?
    
      2: Is this paper his will?
    
    1 The defendant moved for a new trial for'-the following reasons:—
    1st. That the court erred in l’ejecting the evidence of. William Hays, offered to prove the characters-of the subscribing witnesses to the will in question. -• .
    2d. That the court eri'ed in rejecting the letter of Adamson Tanyhill to the testator, dated the 12thof October, 1814.
    3d. That the court erred in their charge to the jui’y in matters of law and fact, to wit:
    4. That the court erred in refusing to permit two l-eceipts and two accounts, which were in the hand-writing of the testator, and had been read in evidence, to be taken1 out by the jury.
    .The question in this case turned on the validity of the will of. Nathaniel Irish, dated the 7th of November; 1814.. It was alleged that it was not his will, 1st. Because he was not. of sound mind when the will was made. 2d. Because it was obtained by fraud and imposition.
    It was pro.ved, that the testator had two paralytic attacks; after the first of which, it was alleged, his mind had been much weakened, if not totally destroyed. That after the second, he became still worse, and, as was alleged, was in a state of complete fatuity. The time of this second attack was not precisely-ascertained, but at, or about, or after the time, it was proved, that the testator had written a letter, which he requested-a clergyman, who-then boarded at his house, to direct for-him. The defendant offered to give in evidence a letter' from A. Tanyhill, dated the 12th of October, 1814, to the testatoi’, purporting to be an answer to one received from him, which last was alleged to be the same written by him. in October; in order to show, that he was in a state of sanity. After the rejection of the letter, the defendant offes’ed to prove, by William Hays, one of the arbitrators in the case of Smith y, Irish, that Mr. Mountain, a relative of General Tanyhill, and who had the custody of hi? papers, (and who is since dead,) pr-oved before the arbitrators, that he had seen among the papers of Mr. Tanyhill, after bis decease, a letter of.the testator’s, in his-hand-writing, dated, in the same month, but that he was then unable to find it after diligent search. The court l'efused tp hear the evidence,
    
      The papers which' the court refused to permit the jury to take out with them were the following:—
    1st. A, receipt, dated the 29th of Jipril, 1814, by the testator to Jl. Tanyhill, for sixty-one dollars and twenty-five cents, which was on the same day entered by thé testator in his léger, to the credit of the United States, as received by Mr. Tanyhill from them. •
    2d. A receipt to Robert Townsend, dated the 5th of May, 1814, for money paid by him to the testator, in the testator’s hand-writing.
    3d. Account of the testator with Jlbraham Watkins, coming down to the 1st of May, 1814, all in the testator’s hand-writing.
    4th. Account of the testator -with-Richard Geary, coming down to the 1st of June, 1814, all in the testator’s hand-writing.
    These papers had been read in evidence at the trial, (so were the books of the testator,) for the purpose'of showing the testator’s sa-. •nity at their, respective date's, which were all after the time of his alleged insanity. And,the defendant’s counsel had requested that they" should be sent out by the jury, but the court refused, although they permitted the testator’s books to be sent put.
    Mr. Jlbraham. Watkins to N. Irish, Dr.
    1811, .' Jan. 25, To 1069 feet.of seasoned pine boards, ■ at $1,25, - - - $13 36
    “ ' Feb. 21, -To 276 feet of seasoned pine boards, 3 45
    £-£ March 19, To 16 feet of oak scam ling; at 2 cents, 32
    ££ Jipril 2, To 82 feet of oak boards, for the roof, 1 02
    “ ££ 22, To 191 feet of picked pine boards^”- ■ • 29
    ££ ££ . '.23, To 31 feet of poplar boards, ; - 371
    w June ■ 8, To 40-feet of § boards, - - 50
    ££ Sept. 28, To 109 feet of boards, delivered toa, man you bought wool of, - 1 33
    (Original says,) carried over, 20 64
    1812, Sept. 4, To 44 feet of 4 by 5- oak scantling, at If, - .4 ’ 7-77
    1-813, .■ Feb. 15, To 77 feet of picked boards, at 11 cts; 1 14
    ££ March 26, To 20 feet of pine scantling, 5 by 8, 31 cents, - ' t 70
    1812, Nov. 1, To a years’ ground rent, due Nov. 1, 1812, - 38 00-
    1-813,- Jlug. 24, To 38 feet of pine scantling, at 31 cts. 1 33
    ££ Nov-. .1, To ,a year’s ground, rent, 38 00
    1814, May 1, To half a- year’s ground rent, - 19 00
    $119 58
    
      Mr, Richard Geary to N. Irish, Dr.
    1813, Aug. 10, To 25 feet of pine log, at 6 cents, - %2 10
    
      “ “ ' 15, To 58 feet of pine boards at 14 cents, - by.boy, - •' ' - - ... 724
    30, To 265 feet of rough boards, .- - -2 65
    
      “ Sept. .16, To a pine girder 30 feet long; at 10 els. 3, 00
    1814, May 14, To 834 feet of seasoned pine boards, at $>2, - . - - , - 16 6S
    
      “ ,28, To 40 feet of half inch- hoards, - 50 -
    25 654
    Contra Cr.
    1813, June 8, By charge due you, $>1,90' <s Sept. 4, By cash on account, 3,00 1814, May28, By « “ 1,0Q; 5 90
    19 75|
    To D. Beltzhoover’s account, - - 4 97
    24 72
    
      u ' Jun'e' 1, To 253 feet of boards, at @1,75, , - 4 42 '
    29 14
    cí 1, By cash, - -■ 5 00
    S24- 144
    Received, April 29th, 1814,' of General Adamson Tanyhill, sixty-one dollars and twenty-five cents, in full of my account against the United States, as sent to the secretary of state’s office in December last. •
    (Signed,) Ñath. Irish.
    
    • Received May 5th, 1814, of Mr. Jesse Townsend, by the hands •of Robert Townsend, seventeen dollars, on account of money paid to the said Townsend, it being due me from John Sheldon- oí Fayette county.
    (Signed,) • ' Nath. Irish.
    
   The opinion of the court was delivered by

Gibson, C. J.

Evidence of what Mr. Mountain testified -in an •action between other parlies, was incompetent in the action trying; and the testimony of Hays, therefore, w,as properly overruled..

The letter’of Adamson Tanyhill, purporting-to be in a-iswer to one alleged to have been wriiten by' the testator, was not competent evidence of the contents of the supposed letter, or of its having in fact ever existed; and this, though' there were proof that thfe testator had written a letter to some one about the particular time. It is a fundamental rule, that evidence shall be given under the sanction of an oath; to which no other exceptions, are at present recollected, than the instances of character, boundary, and pedigree, in which hear-say is admissible; and the declarations of deceased persons in prejudice of their interest. As to. the facts asserted in it, the letter of Mr. Tanyhill is precisely on a'footing with declarations by a deceased person; and as the declarations which it contains/were not in,the nature of an admission to charge him, there is no room to say they are competent evidence to charge another.

The part'of the charge in which error is alleged, is in substance this: “If,there is proof that the will was directed to be written, ■not by the testator, but by another,-and that other not only directed the will to be written, but directed its different bequests; and if to all-this, that will gives to the person who directed it, much more than a child’s part; if it was- executed, too, not in the testator’s house, but that of tlie devisee; if to all this, other dispositions made by the testator himself," when undoubtedly sound in body and mind, are produced, and these made á very different -disposition of his property, reason and law equally require that the jury should have proof that it is the will of the testator, not a will made for him by another.” In this conclusion of the judge, there certainly was no misdirection in point of law; and we are satisfied, that the facts thus'stated hypothetically, were such-as the jury might adopt without any forced or unnatural construction .of the evidence; and, the inference from -the whole would have ¿risen, even though no such facts had been proved.

The receipts and.'accounts mentioned in the fourth-exception, ought undoubtedly to -havé gone out with the jury. But by the English.practice,-an error in.this particular,is not a ground for setting aside the verdict; and this practice appears to have been quoted with approbation in Alexander Jameson, (5 Binn. 238,) by the judges of this court. In motions for new tri.als, the courts here have been less regardless of technical errors than the English judges. A sight of these papers in the box, must have been amply sufficient to satisfy the jury of the .quantum, of capacity shown by them to have been in the person who-wrote them. Had they been adduced as evidence of indebtedness in a matter determinable by calculation, the exception would have had -more force; but as substantial justice seems to have been done, this unimportant error must not prevail.

Judgment affirmed.  