
    *Nuckols’s Adm’r v. Jones.
    October Term, 1851,
    Richmond.
    (Absent Cabell, P.)
    1. Probat — Evidence—Deposition De Bene Esse — Case at Bar. — in a case of probat the deposition of an aged witness, taken de bene esse, allowed to be read, upon proof, either by witnesses or his own affidavit, of his inability to attend the Court.
    2. Same — Same—Witness Unable to Attend Court-Deposition — Admissibility—Case at Bar. — In a case of probat, a witness unable to attend the Court, is examined as to the handwriting of a testamentary paper which had been shewn to him by the pro-pounder of the will, but which was not before him at the time he gave his deposition. Heli>: That the testimony is admissible; its weight depending upon the certainty of the proof that the paper propounded for probat is the paper that was shewn to the witness.
    3. Same — Same—Witness to Prove Handwriting — lm= peachment oi — A witness called to prove the handwriting of a paper offered for probat, may be impeached by proof of what she has said about that paper at another time; But neither her capacity to judge the handwriting or her credit, is to be impeached by what she may have said about some other paper.
    
      4. New Trial — After-Discovered Evidence — When Allowed — Case at Bar. — A new trial will not he granted on the ground of after-discovered evidence, upon the affidavit of a party that he has been informed and believes that certain witnesses will give important testimony, without proof by affidavit of the person or others who have heard them, of what they will state; and especially if their evidence will be not of new facts but merely cumulative, and the cause has been depending for a length of time, and these newly-discovered witnesses live in the county and within a few miles of the party who makes the application.
    At the April term 1848 of the Circuit court of Hanover county, John B. Jones offered for probat a paper ■writing' as the will of Ann W. Nuckols, when on the motion of Nathaniel Nuckols he was permitted to enter himself a party to contest the probat of the paper; and the cause was continued. In the same year Nathaniel Nuckols died, and the cause was revived in the name of *J3dward W. Morris, as his administrator, and after repeated continuances came on to be tried before a jury in April 1850.
    The paper contains but a single clause and is as follows:
    “I give to brother John all my hole estate, real and personal. By so doing give all my brother’s children one hundred dollars apeace. This is my last will and testament.
    “Ann W. Nuckols, 1847.” .
    It appears that Nathaniel Nuckols married Ann W. Jones in 1838, and that there was a marriage agreement between them by which she was authorized to dispose of her property by will, subject to a life estate in her hushand. That they lived unhappily together, and frequently separated, and a short time before her death she informed one of the witnesses that Nuckols had threatened to break open her trunk, looking for papers and money. And added let him break it open he will find nothing .there.
    It appeared further that Ann W. Nuckols died on the 6th of November 1847; that on the day of her death a small box was taken from a press in the room in which she was lying very ill, and then supposed to be dying, by her female servant, and handed to the wife of the propounder of the will, who took it, without any remark being made by either her or the slave. That about a week or probably more, afterwards, in the latter part of November 1847, the wife of the pro-pounder of the will, being in the porch of the house and residence of her husband, who is the brother of the testatrix, called to a son of hers then engaged in the garden a few yards distant, and asked him if he did not wish to see the locket of his deceased aunt, meaning Ann W. Nuckols; that he replied he did, and went *into the porch where she opened a small box, where the locket was, and which he had seen worn by his deceased aunt frequently before; that in attempting to remove the locket the hinge was attached to a pad of cotton on which the locket rested, and in taking the locket out the cotton came out with it; and the paper offered for probat was there found folded up and containing a ten cent piece; which, box, locket and pad of cotton were produced in Court, and exhibited to the jury and used as evidence. That this paper being taken out and read by the wife of the pro-pounder, she immediately handed it to another son, and directed him to take it to his father who was then at his mill about seven miles off. That the propounder of the will was met on the 22d day of November 1847 in the road riding from towards his mill, when about three quarters of a mile from the mill, in company with the son last referred to; that he remarked to the person who met him that he was glad to see him, he had a paper he wished to shew him, and intended to go to see him with it; and then shewed him the paper propounded for probat, stating it was the will of Mrs. Nuckols. That the paper was examined then and on the next day by the person met by the propounder, which person owned a contiguous farm, and was a magistrate of the county of Bouisa, and he proved on the trial that the will was unchanged and was then as it was at that time.
    Several exceptions were taken in the progress of the trial by the opponent of the probat of the paper; which and the facts on_which they are based, are' stated in the opinion of Judge Allen. After the verdict in favour of the will was rendered, the defendant applied to the Court for a new trial, on the ground that the verdict was contrary to evidence, and also on the ground of after discovered evidence; but the Court overruled the motion; and on the motion of the defendant certified *the facts proved. These however are not given except so far as they relate to the production of the paper. The Court admitted the paper to probat; and the administrator of Nathaniel Nuckols applied to this Court for an appeal, which was allowed.
    Meredith and Robert G. Scott, for the appellant,
    insisted,
    1st. That the evidence of the witness Glenn’s inability to attend the Court was not sufficient. His own testimony was not admissible, and the other evidence did not prove his inability to attend.
    2d. That a part of this witness’ deposition which related to the paper propounded for probat should have been excluded, because the paper was not before him when he gave his evidence; and there was no proof to identify the paper which had been shewn to him as the paper which was propounded for probat. If this testimony was illegal, the judgment should be reversed. Poindexter v. Davis, 6 Gratt. 481; Wiley v. Givens, Id. 277.
    3d. That Harding’s testimony as to what was said by the witness Elizabeth Glenn, was improperly excluded. 1 Stark. Evi. 134, 164; 2 Stark. Evi. part 4, 222, 223.
    4th. That the Court should have granted a new trial on the ground of the after discovered evidence. Delima v. Glassell, 4 Hen. & Munf. 369; Arthur v. Chavis, 6 Rand. 142; Calaghan v. Kippers, 7 Eeigh 608.
    Eyons, for the appellee.
    On the first point made by the counsel for the appellants, referred to Pollard’s heirs v. Eively, 2 Gratt. 216, in which it was held that the testimony of the witness was competent to prove his inability to attend the trial of the cause.
    *On the second point he referred to the evidence to prove that the paper propounded for probat was the paper shewn to the witness Glenn. And he insisted that the objection did not go to the admissibility of the evidence, but its weight; and that was a question for the jury. And he insisted further, that the Court would not reverse a judgment for the admission of illegal testimony if the other evidence was ample to sustain the verdict, as it was in this case. Doe ex dem. Teynham v. Tyler, 19 Eng. C. E. R. 165.
    On the third point he insisted, that as the appellees had examined the witness Elizabeth Glenn as to what she had said, they were not authorized to contradict her by other testimony. Daniel v. Conrad, 4 Eeigh 401; 1 Stark. Evi. 134; 3 Stark. Evi. 1753; 2 Philip’s Evi., Cow. & Hill’s edi. 726 ; 3 Id. 132, 136; Clement v. Tull-edge, 19 Eng. C. E. R. 247; Harris v. Wilson, 7 Wend. R. 57.
    On the fourth point he insisted, that a new trial is never granted on the ground of after discovered evidence upon the mere affidavit of the party asking it. Delima v. Glassell, 4 Hen. & Munf. 369; Arthur v. Chavis, 6 Rand. 142. The principles on which the new trial is granted on this ground, is, first, that there has been no laches on the part of the party asking it; second, that the evidence is not merely cumulative; and third, the affidavit of the witnesses discovered, shewing that their evidence will be material. Williams v. Baldwin, 18 John. R. 489; Bunn v. Riker, 4 John. R. 226; Wheelwright v. Beers, 2 Hall’s N. Y. R. 391; People of New York v. Superior Court of New York, 10 Wend. R. 286; Calaghan v. Kippers, 7 Eeigh 608; Smith v. Brush, 8 John. R. 84; Pike v. Evans, 15 John. R. 210.
    
      
      Evidence — Witness Unable to Attend Court — Depo= sition — Admissibility.—Upon the authority of Pollard v. Lively, 2 Gratt. 216, and Nuckols v. Jones, 8 Gratt. 267, it is held in Tayloe v. Smith, 10 Gratt. 558, that where the deposition of an absent witness is offered to be read in evidence apon the trial of an action at law, the evidence of the witness himself touching his failure or inability to attend the court, and the cause thereof, may properly be heard and considered, and may of itself furnish sufficient ground for admitting the deposition in question.
      See monographic note on “Depositions” appended to Field v. Brown, 24 Gratt. 74.
    
    
      
      Evidence — Witnesses—Impeachment.— in State v. Goodwin, 32 W. Va. 182, 9 S. E. Rep. 87, it is said: “When a witness is cross-examined on a matter collateral to the issue, his answer cannot be subsequently contradicted by the party putting the question. The test of whether a fact inquired of on cross-examination is collateral, is this: Would the cross-examining party be entitled to prove it as a part of his case tending to establish his plea? This limitation, however, only applies to answers on cross-examination. It does not affect answers to the examination in chief. Whart. Crim. Ev. sec. 484; Forde's Case (16 Gratt. 547); Nuckols v. Jones, 8 Gratt 267.
      
    
    
      
      New Trials — After-Discovered Evidence — Principles Governing. — On this subject, the principal case is cited in Brown v. Speyers, 20 Gratt. 308. See footnote to the same case, where a large number of authorities are collected and references to other foot-notes written on the subject; Strader v. Goff, 9 W. Va. 271; Roderick v. Railroad Co., 7 W. Va. 58; Hale v. Pack, 10 W. Va. 145; Hall v. Lyons, 29 W. Va. 423, 1 S. E. Rep. 592.
    
   AEREN, J.

At a Circuit court held for the county of Hanover on the 7th April 1848, the appellee exhibited *a paper writing purporting to be the last will and testament of Ann W. Nuckols, and offered the same for probat. There was no subscribing witness to the paper, and the validity of the instrument as the will of the deceased depended mainly on the proof of her hand writing. The deceased at the time of her death was a married woman, but by the terms of a marriage agreement possessed the power of disposing of her separate estate at her death. Her husband who survived her appeared and contested the probat; and having died during the pendencjr of the controversy, his administrator with the will annexed, appeared and was permitted to enter himself as the opponent of the probat. On motion of the contestant a jury was ordered to be empaneled to ascertain and determine whether the paper writing propounded was the true last will and testament of the deceased.

A fter some continuances the controversy came on for trial at the April term 1850, and the jury found that the paper propounded was the true last will and testament of the deceased.

Several exceptions were taken to decisions of the Court during the progress of the trial; and after the verdict a motion was made for a new trial upon the ground of after discovered testimony, and also upon the ground that the finding of the jury was contrary to evidence: both motions were overruled and the appellant excepted. The first exception taken during the trial was to a decision of the Court overruling a motion to exclude the deposition of William Glenn taken by the appellee to be read de bene esse, because there was no sufficient evidence to shew the inability of the witness to attend. It was proved by the magistrate who took the deposition that the witness was an old man, probably between seventy-five and eighty years of age; that he complained of ill health, stating that his physicians represented he was labouring under rheumatism of the heart, and the witness was of opinion that Glenn was unable to ride on *horse back from his house to the court house ;■ and another witness testifies to the age of Glenn and gives it as his opinion he could not travel to the court house without danger to his health and probably his life. This testimony of itself proves sufficient inability to attend to warrant the reading of the deposition; and its force is not weakened by the evidence on the other side that some two or three years before Glenn was in the habit of riding to the city of Richmond, and that the witness who deposes to this fact when he last saw him did not perceive any change in his general appearance and 'health. In addition to this, evidence is the affidavit of Glenn given immediately before the trial, in which he swears that from sickness and infirmity he was unable to attend the Court. This of itself would have justified the reading of the deposition, as was decided by this Court in Pollard v. Lively, 2 Gratt. 216.

The objection to the whole deposition being overruled, the appellant moved the Court to exclude from the jury those parts. of the deposition in which the witness testifies, that a paper writing purporting to be the last will of the deceased, and which had been shewn to him, as the witness stated, by the propounder of the will sometime before the taking of the depositions, was in the hand writing of the deceased; because those parts of the deposition are not legal and competent evidence, and are irrelevant and unconnected with the issue. The proposition presented by the exception, is whether it was competent for the witness to give evidence of the hand writing of a paper shewn to him previously by the appellee as the will of the deceased, without having the paper before him when he gave his deposition, or without distinct proof that the paper shewn to him, was the paper offered for probat. The objections it seems to me, go rather to the weight of the evidence than to the competency of the witness. The paper when exhibited for probat, becomes part of the records of the Court, and *it would not be in the power of the party, in many cases, to procure the original so that a witness at a distance from the office where it was deposited, could inspect it when giving his testimony. In such case he would necessarily be constrained to speak from his recollection of the paper if formerly examined by him. Whether the testimony proved the identity of the paper was a 4uesti°n for the jury. The witness had been cross examined on each occasion when his deposition was taken. But no intimation was given that the paper shewn to and seen by the witness was not the one exhibited for probat. Nor does any exception appear to have been filed to the reading of the depositions or these portions of them before the jury was sworn. Under these circumstances it would have operated as a surprise on the other side to have excluded the deposition from the jury entirely. The weight they would allow to it would depend upon the question whether the paper spoken of by the witness was sufficiently identified by all the testimony in the cause, with the paper offered for pro-bat.

Another witness, Elizabeth Glenn, having testified in her examination in chief that she believed the paper offered for pro-bat and the signature thereto to be in the hand writing of the deceased; and that she had seen the deceased write often, and had frequently seen her hand writing; was asked on her cross examination if she had seen another paper purporting to be in the hand writing of the deceased. She answered that she had, and that 'it had been shewn to her by Mr. Harding. And being asked if she did not say that the paper so exhibited to her was in the hand writing of the deceased, replied she had not, but thought the signature to it was like the hand writing of the deceased. The appellant after all the evidence had been adduced for the propounder of the will, introduced a witness, Harding, who testified among other things that after the death of the alleged testatrix, having become interested *in her property by a purchase from her husband, but which interest he had released, and having heard of the existence of the paper offered for probat, and that the witnesses, E. Glenn and her father, were relied on to prove the hand writing, called to see them, and understanding from them that they were acquainted with the hand writing of the deceased, and that they had seen the paper offered for probat and believed it to be in her hand writing, for the purpose of testing the accuracy of their knowledge in regard to the hand writing of the deceased, exhibited to them a paper which he had prepared, imitating the writing of the deceased and purporting to be signed by her. And the witness was then asked what was said by E. Glenn and her father in reference to the paper so exhibited to them by the witness; but the propounder of the will objected to any answer being given by the witness to the question; and the objection being sustained by the Court no answer was given by the witness; to which decision the appellant excepted. The answer to the question must have been intended to contradict what the witness E. Glenn had said on her cross examination, and so to impeach her credit; or must have been intended to weaken confidence in the ability and skill of the witnesses in judging of the hand writing of the deceased, by shewing that they were imposed upon by the spurious paper prepared by the witness and exhibited to them. It does not appear that E. Glenn alluded to this paper in her examination in chief. The question before the jury was whether the paper offered for probat was in the hand writing of the deceased; any statements made at another time by the witness touching the matter in issue and contradicting her evidence in chief in regard to the paper, to the hand writing of which she had deposed, would have been proper as tending to impeach the credit of the witness. But what she may have said about any other paper at any other time, having no *relation to the paper offered for probat, was a distinct collateral fact, as to which she could not be examined for the purpose of impeaching her testimony by contradicting her, nor was it competent after such question was put and answered to adduce evidence to contradict the answer. Harris v. Wilson, 7 Wend. R. 57; Charlton v. Unis, 4 Gratt. 58. Such a course of examination would raise different issues and tend to divert the minds of the jury from the real enquiry before them; for if the statement so made in regard to any collateral paper was contradicted, the other side would be authorized to sustain it; and so the genuineness of every collateral paper would be put in issue.

Still less was it competent to offer such evidence to test the skill and ability of the witness to speak as to the hand writing of the deceased. The circumstances under and the purposes for which it was prepared shew a design to circumvent and entrap the witness by exhibiting a forged paper, a fact which of itself justified the rejection of the evidence; and as the paper so exhibited to the witness was not produced, the evidence would not have furnished any test of skill. Tor that would have depended upon the success with which the hand writing of the deceased had been intimated in the paper exhibited to the witness.

After the verdict the appellant moved for a new trial upon the ground of after discovered testimony unknown to him when he went into the trial; and in support of the motion filed his affidavit in which after stating that he had made diligent enquiries for evidence to prove that the paper offered for probat was not in the hand writing of the deceased, before the trial, he had since the trial been informed and believed that the paper had been shewn by the pro-pounder to two females who were acquainted with the hand writing of the deceased and would if examined have testified that they did not believe the paper was in her hand writing; the ’‘"persons referred to it appeared resided in the county and within six miles of the appellant. This affidavit did not furnish any ground for setting aside the verdict. He had not seen or conversed with the persons whose testimony is deemed material; his affidavit is based on mere reports derived from others, and there is nothing to shew that the persons referred to would testify in the manner supposed. Ejven if the affidavits of the supposed witnesses were dispensed with, there should have been the affidavit of some person who had seen and conversed with them: it would lead to endless litigation if verdicts fairly rendered should be set aside upon a mere rumor that other testimony might be procured. The controversy had been pending in Court for two years, the administrator had made himself a party to the contest eighteen months before the trial, and the cause turned upon the proof of hand writing. The parties went into the trial prepared with their evidence on this ■question, and the testimony supposed to be since discovered is not evidence of any new fact, but merely cumulative evidence bearing upon the question in regard to which the parties had been at issue from the beginning. This is a species of evidence which has not generally been regarded as a good ground for granting a new trial. Callaghan v. Kippers, 7 Leigh 608.

A different practice would hold out inducements to a negligent or fraudulent suitor to omit the use of proper diligence in preparing for trial or to withhold a portion of his testimony until he had discovered the strength of his adversary’s case, with the expectation of being able to overthrow it by preponderating testimony at a subsequent trial. Upon both grounds, the absence of any direct evidence from the persons referred to, or from any person having communication with them, and the character of the testimony it was reported they would give, the motion was properly overruled.

*There was an additional reason for refusing to set aside the verdict in this case. A motion for a new trial is addressed to the sound discretion of the Court, to be exercised in view of all the facts developed on the trial. Judge Cabell, in the case of Callaghan v. Kippers, 7 Leigh 608, observes that Courts exercise the power of granting new trials upon the ground of after discovered testimony, rarely, and with great caution; and never but under very special circumstances. The party asking its exercise must shew he was ignorant of the existence of the evidence, that he was guiltless of negligence, and that the new evidence if it had been before the jury, ought to have produced a different verdict. In this case the bill of exceptions sets out the facts proved at the trial, which this Court held in the case referred to, was essential in order that the appellate Court might be furnished with the means of ascertaining whether the Court below clearly erred. From this certificate of the facts it appears that five witnesses introduced by the appellee deposed that they believed the paper to be wholly in the hand writing of the deceased. One of these was a magistrate residing in her neighbourhood; another a store keeper near her residence who had often seen her write, and had often received orders from her, which she recognized as genuine; and a third her brother who had gone to school with her for five years, had spent much time with her since she was a woman, and some time since she was married, had corresponded with her and knew her hand writing well. On the other side two witnesses were examined as to this question, one of whom would not at first have taken it to be the hand writing of the deceased, but upon closer inspection and his attention being called to the manner in which some letters were formed and their disconnection, doubted whether it was in her hand writing or not; so that his testimony as to this matter could have *no influence. The second witness who did not believe the paper to be in her hand writing, was one of those who at one time had acquired an interest in the property by purchase from the surviving husband, but the contract was afterwards cancelled: A fact _ which though it might not have affected his credit may have insensibly influenced his judgment. If the two females referred to in the affidavit had concurred with this witness there would have been three witnesses to five upon the question of hand writing; so that the new evidence reported to exist, if it had been before the jury, ought not for any thing disclosed by the record, to have produced a different verdict; for the weight of evidence on the question of hand writing would have inclined in favour of the verdict as found.

On the merits the case is free from difficulty. The paper on its face gives conclusive evidence of testamentary intent. It disposes of the whole estate, and states that it is her last will and testament: And being proved to, the satisfaction of the jury and the Court, to be wholly in the hand writing of the testatrix, and being signed by her, it is a complete statutory disposition of her property. That the jury was justified bj- the evidence in finding it to be wholly in her hand writing, and could not properly have arrived at any other conclusion if they believed the witnesses, appears from what has already been said in reference to the testimony on the question of hand writing. The objections growing out of the appearance of the paper and the circumstances attending its discovery, might with some give rise to suspicion; whilst others, in view of the character and temperament of this old woman, her fear and distrust of her besotted husband with whom she lived unhappily, and from whom she frequently separated, her repeated declarations of her wish that no part of her property should be enjoyed by him, her complaints *that he had threatened to break open her trunk and her fears that he might do it, would probably conclude that the mode adopted to preserve her will and have it placed in the hands of her brother, was natural and characteristic. All this however is matter of speculation, and can have but little influence when it is satisfactorily shewn that the paper left by her shews upon its face a testamentary intent, is a completed instrument, and is wholly in her hand writing. I think there was no error in any of the decisions of the Court during the progress of the trial, which have been excepted to; that the motion for a new trial upon both the grounds relied on was properly overruled; and that the sentence should be affirmed.

BABDWIN and MONCURE, Js., concurred in Allen’s opinion.

DANIEB, J-,

dissented. He thought that under the circumstances of suspicion which existed in the case, there should have been a new trial to let in the after discovered evidence.

Judgment affirmed.  