
    
      Wm. McNinch and others vs. John Charles, Executor of John McNinch.
    
    If the capacity of a testator be doubtful, proof of instructions or reading over is not indispensable to the validity of his will, but it may be established on other evidence of knowledge and assent to the dispositions which it contains.
    Letters of the testator, written before the will was made, held to be competent evidence to shew the assent of the testator to the provisions of the will.
    Testator and his wife by letters promised A. B. that, after their death, she should succeed to what property they might leave. Testator made his will leaving his property to his wife. Shortly after the death of testator, the wife made her will leaving two thirds of the property to A. B. and then died. Held, in a contest ás to the validity of testator’s will, that the will of the wife was competent evidence for the executor, to shew the knowledge and assent of testator to the contents of his will.
    
      Before Evans, J. at Chester, July, extra Term, 1845.
    This was an appeal from the Ordinary’s decisión sustaining the will of John McNinch: The appellants are the next of kin, and the appellee is the executor. The grounds of objection were 1st, want of mental capacity from age and disease; 2d, undue influence exercised by his wife, Isabella M’Ninch; 3d, ignorance of the contents of the will.
    The testator was an old man about seventy eight years of age. He had a wife, but no children by her; he had a recognised illegitimate daughter, named Isabella, who was married to Samuel M’Ninch, one of the appellants. Many years ago, the testator had, at- great expense, brought out from Ireland several, perhaps all, of his and his wife’s brothers and sisters, and settled them in Chester. In the general, they were not thriving people, and did not improve the property the testator had given them. He, himself, had been a merchant, and much of what he had made was with the aid and assistance of his wife, who, the witnesses thought, had more capacity and shrewdness in trading than he had. The estate of which he died possessed was small, consisting of a house and lot of little value, the usual furniture of such a family, and bonds and debts, in all worth about $2,000. The Louisa Waters mentioned in the evidence, was in no- way related to either M’Ninch or his wife. She had come to live with them about 1836, by their earnest solicitation, and under certain promises, contained in letters written, to receive her as an adopted daughter, and “to make her happy and independent at their death, if they had enough to do it.” These letters were objected to by the appellants as incompetent, but the objection was overruled. She, at first, resided in the house with them, and then built a house of her own, but still was constant and unremitting in her attentions to them, and when- they became very infirm, she resided again with them, and served them most faithfully until their death. It appeared from the evidence that the testator, in November, 1843, had executed a will, when, according to the evidence of the witnesses, he was compos mentis, although then confined pretty much to his bed. This will was destroyed by his wife soon after it was executed, contrary to the wishes of the testator, as he told one of the witnesses. Of the contents of this will nothing was known with certainty. One witness said Louisa Waters’ name was not mentioned in the heads of it, which were read to him by Charles, the executor, who drew it. There was a sofa and four hundred dollars given to Mrs. Charles, the niece of the testator, and the mother of the appellee, who was the executor of that and of this will. The will in controversy was dated the 13th January, 1844. By it the testator’s books are given to establish a sort of public library, small legacies are given to his sisters and other relations, now ten or twelve in number, and the rest of his estate to his wife, whom, with the appellee, he appointed executrix and executor. In July following,- Isabella M’Ninch made her will, whereby she directed all the estate to be converted into money, and gave one-third to the Bible Society, and the remainder to Louisa Waters. The competency of this will as evidence was objected to by the appellants, but it was ruled to be admissible. Under the will of John M.’Nmch, the executor, Charles, took nothing.
    The testator had been sick and confined to his room, and mostly to his bed since November, and was becoming more feeble daily. He lived about ten days after the will was signed, and then died of debility. Two of the subscribing witnesses were examined. They were called in by the executor for the purpose. They thought him of sound mind. He was raised up and supported whilst he made his mark. After this was done, Charles held up the paper, and asked the testator if he acknowledged it to be his will. He replied yes, or aye. This was all they heard him say. The other witness, Henry, was dead, but his examination before the Ordinary was read. He stated the same as the other witnesses, with the additional fact, that he proposed to the testator to write his name when he was raised, to which he replied, that he was too weak, and made his mark. This witness had seen him before, and said he was as much in his right mind as at the other times he had seen him. The will was not read over to or by the testator, in the presence of the subscribing witnesses. The only proof of instructions or reading over is to be gathered from the witnesses hereinafter reported. The will was written, it is likely, in the morning, and executed in the evening of the same day.
    On the part of the appellants, it was proved by several witnesses that, during the night before, the testator’s mind was wandering, and he talked about things which existed only in his own imagination, such as that there were vines growing in at the windows, which he wished those who were present to cut down and carry away. Some of the witnesses had been with him other nights, and said he was pretty much in the same way. One of these witnesses, Mrs. Hood, said he had a fever at night, but when that was off, he lay still and answered sensibly when spoken to ; and some of the witnesses, whom he knew very well, said that on several occasions when they spoke to him he did not, or appeared not to know them, and sometimes made no answer to their inquiries of “how” he was. There were two of the appellants’ witnesses who were at the house until after dinner of the day the will was signed, whose evidence will be given more in detail. Hugh McCrary went to testator’s house at 9 or o’clock, and remained until after dinner. Asked two or three times of testator if he knew him, and received no answer. Testator said he wished the witness to buy a paper of tacks and fill the soles of his shoes, and let a part go into his feet, because he was losing his shoes in the mud holes. Mrs. M’Ninch, who was sick, and lying on a bed in the same room, rose up and said she would rather he would not talk to him, because he had been making his will that morning, and his head was confused. His eyes were half shut when he spoke to him.
    
      Mary Hood was at M’Ninch’s the night before the will was made, and stayed until dinner next day. Heard him talking during the night about the pernicious vines that grew into the windows. He had a fever during the night, but when that was off, he lay still and had his senses. She was sitting before the door, when Mrs. M’Ninch and Charles were in the room with the testator. Heard Mrs. M’Ninch talking to Charles about the will. Heard M’Ninch talking with them when Charles was taking down the will, but she did not distinguish what he said. Mrs. M’Ninch told her she had destroyed the first will, because she was dissatisfied with what was given to Mrs. Charles, and the gift of the gold watch to his illegitimate daughter. She said she would sooner crush it to pieces between two stones. After the destruction of the first will, Mrs. M’Ninch said the testator was in no capacity to make a will, but she hoped he would be more calm to make a will towards, his last.
    In reply to this, Mr. Rosborough, the clerk, and others had seen him several times shortly before he died, and about the time the will was made, and conversed with him. They thought his mind was good.
    On the subject of influence, it appeared from the testimony of several of the witnesses, that on some occasions he allowed her to have her will; and one of the witnesses stated that the will had been burnt contrary to his wishes. He said to William M’Ninch he wished his daughter to have his gold watch, who replied, well, why don’t you take it and give it to her. He said, “William, I can’t get my will here.”
    It was clear, the testator had been disappointed in his expectations in bringing his relations from Ireland. He had provided liberally for them, but, as he said, they had made a bad use of it. His declarations had been uniform for fourteen or fifteen years, that he would give no more to them. For Samuel M’Ninch, who married his illegitimate daughter, he had provided, as he said, liberally, and refused to make any further provision for him or his family, when applied to by Major Kennedy. After the first will was made, he had, on several occasions, spoken of giving a part of his estate to the Bible Society ; and the disposition of his books for a library, was in conformity with an intention long before declared to Mr. Rosborough.
    The case was submitted by his Honor to the jury with instructions on the law, to the following effect, viz. That to constitute a valid will, four things were necessary. 1. It must be in writing, and attested according to the requisites of the statutes. 2. That the testator must be of sound mind. 3. That the disposition of his property must be voluntary, and not made under undue influence. 4. That the testator should know the contents of the will.
    On the subject of capacity, the jury were instructed,, that the law required that degree of capacity which was capable of comprehending the act to be done, and, of course, a less degree of capacity was necessary to support a will of simple bequest, easily comprehended, than where the provisions of it were complex, and difficult to be understood.
    The main matter which was urged by the appellants was, that, without proof of either instructions or reading over, where the capacity is doubtful, the will cannot be supported. This was said to have been clearly decided in the cases of Tomkins vs. Tomkins,  and Boyd vs. Boyd, . His Honor did not think so. Neither of these cases, nor the English cases referred to, lay down any such peremptory rule, according to his understanding of them. The proposition to be decided was, whether the will was conformable to the testator’s wishes. The ordinary and, in general, the best evidence was, that it had been written according to his instructions, or that it had been read to, or by, the testator, and assented to by subscribing his name in the presence of the witnesses. But the jury were told that the fact might be established by other evidence, provided it was such as to establish the truth of the fact to their satisfaction, although the testator might be weak and feeble, and his capacity somewhat doubtful. His Honor then adverted to the leading facts relied on in the argument on the other side, such as, 1. Its conformity to his previous declarations in relation to his kindred ; and that the will of John M’-Ninch, taken in connection with that of his wife, was in 'conformity with the letters to Louisa Waters, in one of which, it was said, she should be their principal heir, except a little to the Bible Society.
    2. That there was no proof the will had not been read, as in some oí the cases quoted ; that the testator had participated in the instructions given about writing the will in the morning, and when asked if he acknowledged it to be his will, replied in the affirmative.
    These facts were brought to their mind as those relied upon by the appellee’s counsel. But the jury were cautioned, in the conclusion of the charge, against establishing the will without satisfactory evidence that the testator knew its contents, in the absence of the usual and ordinary evidence of instructions or reading over.
    The jury found for the appellee, and the appellants appealed.
    
      Gregg and McAlily, for the motion,
    cited 1 Phil. 193 ; 1 Bail. 96 ; 3 Hill, 346; 4 Ecc. R. 51; 5 lb. 285; 1 lb. 295 ; 4 lb. 33.
    
      Dawkins and A. W. Thomson, contra.
    
      
       1 Bail. 92.
    
    
      
      
         3 Hill, 341.
    
   Curia., per Frost, J.

The grounds of appeal present three substantive objections, in law, to the instructions of the presiding Judge. 1st, That if the capacity of the testator be doubtful, proof of instructions, or of reading over the will, is indispensable to its validity, and cannot be supplied by other proofs of knowledge and assent to the dispositions contained in the will. 2nd. That the letters of the testator to Louisa Waters were improperly admitted in evidence; and 3rd, that the will of Isabella M’Ninch, the widow and principal devisee of the testator, was not competent evidence.

In considering the first objection, it must be conceded that the testator was of doubtful capacity, because the question depends on its admission.

It is essential to a valid will that it express the intention of the testator. For this purpose it must appear that the testator was capable of making and comprehending the dispositions of property contained in the will; that it does, in fact, declare his intention, or, what is equivalent, that he knew its contents ; and lastly, that he expressed his assent to the instrument, propounded as his will, by executing it with the solemnities required by law.

Where a testator is of sound mind his knowledge of the contents of the will, as of any other instrument, is presumed from the fact of execution. If he be of doubtful capacity, the law requires that the presumption, arising from the fact of execution, should be confirmed by additional and more direct proof of assent. The character of that proof is to be considered.

In this inquiry, the attention is immediately directed to the various modes by which the assent of the testator may be proved. The face of the will presents the first proof, from the presumption to be derived from the reasonableness or unreasonableness of its dispositions. In the last disposition of a man’s property, it is reasonable to suppose that the claims of natural affection, gratitude, friendship and duty, should be provided for. Proof of these claims, and a just provision for them, afford a presumption of assent. The neglect of such claims, and an unaccountable, or vicious, benefaction of mere strangers, or the objects of degrading intimacy, raise a contrary presumption. If the improbability of assent to such gifts be increased by the designing character of the legatees; their opportunities to impose on the confidence or weakness of the testator ; and by proof of circumstances favorable to the practice of fraud, coercion, or the exercise of undue influence, the presumption against assent is greatly strengthened. Evidence of declarations, before or after the execution of the instrument, in conformity with its disposals of property, and the recognition of the claims of kindred and dependants, as subjects for testamentary provision, which have been satisfied, afford proof of assent of very direct and effective force. The good faith and honesty manifested in the' preparation of the will ; the character of the parties who had an agency in the matter ; the exemption from all interest, or, what is more, an agency to the prejudice of their interest, by those who have prepared and aided in the execution of the will, are circumstances strongly affecting the proof, that the instrument does express the will of the testator.

When the validity of a will is disputed, as having been procured by fraud, circumvention, undue, influence, or practices on the testator’s weakness, not so great as to make his capacity doubtful, proof of all the circumstances adverted to, as aifecting the issue, is admitted; and wills have been set aside on such proof, notwithstanding an exact compliance with all the usual formalities of execution ; and on the contrary, they have been supported, notwithstanding the omission of some one or more of those formalities not required by the statute law, or on very slight proof of them.

But it is insisted on behalf of the appellants, that where the testator is of doubtful capacity, the rules of evidence, which obtain in those cases, do not apply; and that in such cases, proof of instructions, or reading over the will, is indispensable, and cannot be supplied by any other. For this, the case of Tomkins vs. Tomkins, 1 Bail. 92, is relied on. A new trial was ordered in that case, because there was no proof of reading or instructions. In cases of doubtful capacity, it is a rule, and a cogent one, that such proof should be given. That was deemed a fit case for the application of the rule, and was decided by it. But the recognition of the rule in its application to .that case, does not warrant the position, that the rule is exclusive and universal. The case of Billinghurst vs. Vickers, 1 Phill. 199, on the authority of which the case of Tom-kins vs. Tomkins was decided, indicates the limitations with which the rule was approved. Many considerations determined the enforcement of the rule in Billinghurst vs. Vickers. Sir John Nicholl, after reviewing the proofs in the case ; considering the extremely doubtful capacity of the deceased at the time of execution; the total absence of proof of any instructions, or of anything which could be considered a substitute for them ; that the part of the will, which was in issue, was written by one of the legatees, the other part having been written by the testator; that the whole transaction was conducted by the two interested parties, and was wholly unsupported by any sort, whatever, of testamentary declarations, or of recognitions made by the deceased himself, concludes, “ that the safer course is to adhere to the rule, that when the capacity is doubtful at the time of execution, and there is no evidence of instructions, especially where the act is done through the agency of the party interested, the proof of mere execution is insufficient.”

The extent and operation of the rule, is plainly limited by the circumstances which directed its application in that case. The conclusion that, under the circumstances premised, it was safer to adhere to the rule, necessarily implies that the rule is not of exclusive and universal operation, but must be determined by circumstances. The authority of that decision does not extend to this — that in the absence of all the circumstances which determined its application, it should prevail as a rule of evidence. Giv- ' ing effect to the whole reasoning of the decision, it affirms that the rule, that where capacity is doubtful, there must be direct proof of instructions, or of reading over, only applies, or at least only applies with any degree of stringency, where there is an entire absence of all proof of instructions, or of anything which could be considered a substitute for them; when the disposition is not consonant to the natural affections and moral duties of the deceased, and where it is obtained by a party materially interested, and under circumstances which place the deceased under his power, control, or influence; where the transaction is conducted by interested parties, and is unsupported by any sort of testamentary declarations or recognitions of the deceased. The case of Tomkins vs. Tomkins, when it affirms and applies the authority of that decision, must be understood to affirm the general rule with the limitations by which it is accompanied.

The effect of the rule contended for by the appellants, is not to prescribe what proof is competent and admissible, but to define and limit the effect of evidence, and to control the judgment of the jury on a question of fact. When many facts and circumstances affecting the question of the assent of the testator to the provisions of the will, sufficient to establish, with moral certainty, the fact, are produced in evidence, it is not consistent with the admitted function of the court to set aside a verdict supporting such .a will, by the enforcement of a rule which prescribes arbitrary conditions to belief. It would be easy to state a case, in which the assent of a person of doubtful capacity to a will, without proof of reading or instructions, may be established in a manner so clear and satisfactory, as to put the question beyond all reasonable doubt. Shall the proof of the claims of natural aifection and duty, long and habitually recognised, which are duly provided for by the deceased in his last will, confirmed by repeated previous declarations of intention, carried into effect by former wills, and affirmed by undisputed subsequent acknowledgments, not be sufficient to support a verdict in favor of a will without proof of reading and instructions 1 The rule contended for, if it prevails, goes to this extent. To such an alleged will may well be applied what is said in the case of Brogden vs. Brown, 2 Eng. Ecc. R. 372. Proof of mere acquiescence “ would so compensate for any want of direct evidence of instructions given a priori, that proof of these facts alone, in conjunction with proof of almost any, whatever, glimmering of capacity, at the time of the execution, would be good to support the will; and would sufficiently indicate mind and volition to justify a court of probate in pronouncing for it as a genuine and valid will"

The objection to the admission in evidence of the letters, has not been seriously urged. Proof of previous declarations, in conformity with the provisions of a will, are constantly received in evidence, in proof of the assent of the testator. That such declarations are in writing, gives them additional effect, as indicating a deliberate purpose and excluding misapprehension of their import.

The will of Isabella M’Ninch was also properly received in evidence. In the letters of the testator and his wife to Louisa Waters, which were signed by them jointly, they promised, in terms which imposed the most solemn obligations of contract and morality, that after their death, she should succeed to what property they might leave, as their own child and natural heir ; and that in this way, her services and attention to them in their old age, should be compensated. The proof offered was not incompetent on the ground of interest. Whatever interest Isabella M’ Ninch had under the will of her husband, as executrix and devisee, had ceased before her will could have operation. A strong desire that the property should go to Louisa Waters, may subject the act of making the will, to the suspicion of having been made for that purpose. But it promoted no interest of the testatrix. The testimony of a parent in support of the interest of a child may be suspected, but the objection of that bias affects only the credibility of the witness. The will was not offered to prove the declarations of Isabella M’Ninch, but her act. It was a circumstance tending to prove the assent of the testator to the will propounded, by a fulfilment of the mutual engagements made to Louisa Waters by herself and the testator. If Isabella M’Ninch had given fyer property to another person, such will would have been competent proof for the appellants, in reply to the letters produced by the appellee. The letters admitted to support the will, shewed the joint obligation of the testator and his wife to provide for Louisa Waters. If proof of the engagement were admissible, any act tending to shew that it was recognised, or denied by the parties, was also admissible,

On the facts of the case, the Court perceives no ground to disturb the verdict of the jury, and a new trial is refused.

Richardson, O’Neall, Evans, and Butler, JJ. concurred.

Wardlaw, J.

I dissent as to the admissibility of the will of Isabella M’Ninch. It was evidence fabricated post litem motam, by the chief party in interest, and can no more avail her legatee, than it would avail herself.  