Opinion
(December Term, 1832.)
1. In an issue of devisavit vel non, it was held by HENDERSON, C. J., and RUFFIN, J., that declarations of the supposed testator, made after the execution of the will, were admissible to prove that it was obtained by fraud, notwithstanding the Act of 1819 (Rev., ch. 1004), to prevent frauds in the revocation of wills. DANIEL, J., dissentiente, but holding declarations made at the execution of the will to be admissible as part of the res gestae.
2. The case of Reel v. Reel, 8 N.C. 248, approved.
THIS was an issue of devisavit vel non as to a will of Benjamin Howell, Sr., propounded by the plaintiff, which was tried before Martin, J., at GREENE, on the last spring circuit.
W. C. Stanly and Mordecai for defendants.
Gaston and J. H. Bryan contra.
The plaintiff having made out a prima facie case, the (443) defendants offered to prove declarations of the supposed testator, made after the execution of the proposed will, tending to show that it was obtained by fraud and undue influence of the principal legatee. But the presiding judge rejected the testimony. The plaintiff had a verdict, and the defendants appealed.
The admissibility of the evidence rejected in the Superior Court was, as a general principle at the common law, determined in Reel v. Reel. The discussion in that case was full, and the decision is to be regarded by succeeding judges, not only with respect, but in my opinion as authoritative. For this reason I must say I do not consider that question open to dispute.
The stress of the argument for the plaintiff is, however, on the Act of 1819, "to prevent frauds in the revocation of last wills." It must appear to every one who reads the opinions in Reel v. Reel that the judges there thought that the statute did not affect the question. It is true, the supposed testator there died in 1818, and therefore the point did not directly arise. But the leading authority against the evidence, Jackson v. Kniffen, was not treated by the court as inapplicable, upon the ground that the statute of frauds was in force in New York. (444) On the contrary, although the opinions of the majority of the judges profess to be founded on that statute, this Court rejected the case altogether and expressly adopted the opinions of the dissenting judges, Spencer and Tompkins, who held that the statute, any more than the common law, was not against hearing the evidence.
But as that was not the point of Reel v. Reel, the court have now treated it as yet undecided here, and deliberately considered the question anew. My own opinion is quite clear, that the case is not within the purview of the statute, nor within the mischief.
The act relates exclusively to the revocation of wills. It presupposes in every case a will, good ab origine, to exist. It does not profess to touch the validity of the instrument, as depending upon the formality of its execution or the disposing capacity or purpose of the maker. Nor does it prescribe the evidence by which those facts shall be proved. Those requisites are left as they stood at the common law or by other statutes. This act does not say nor mean that a writing having the prescribed forms of a will, but obtained by fraud, duress or undue influence shall, by force of the formal circumstances, be a will, but it says that such an instrument, having not only the forms, but having at its execution been in reality the instrument it purports to be, shall only be revoked by another will, or other mode prescribed in the act. The very title shows this, which is "to prevent frauds in the revocation of wills." In fine, the act goes wholly to a change of mind in the testator, and not to the original want of the animus disponendi.
Here, perhaps, I might properly leave the case, since it is our province only to ascertain the meaning of the Legislature, and not to carry their enactments beyond their meaning, because we might think they ought to have gone further. Yet I think in this case, notwithstanding the argument and authorities offered for the plaintiff, that there is a plain reason why the statute was not made broader.
(445) It is said the admission of this evidence is an evasion of the statute and will bring in all the evils that it was meant to remedy; that there is little difference between a declaration, "that I revoke my will, " and "that paper never was my will; it is a forgery"; or "I was forced to sign it." And it is further insisted that if the statute will not exclude it in all cases, yet the rule should be in analogy to it and exclude it in all cases, when the supposed testator had it in his power, by other means than his declarations, to destroy the operation of the instrument, as where he had possession of it, or lived long after, free of restraint, and could have made another will.
I admit that evidence of such declarations may mislead a jury. So, indeed, may almost all evidence submitted to them, especially if it be competent for one purpose and not so for another. This is incident to our tribunals as constituted, and not peculiar to this species of evidence. If it be competent for any purpose, the court must receive it at the risk of misconception or misapplication by the jury. The law does not anticipate either, but the contrary — not a misconception because the court should explain the purpose for which it is received, and the point it tends to establish, nor a misapplication, because there is a reliance on the integrity of the jurors. There is no instance in which the legitimate and illegitimate purposes of introducing evidence are more distinct or more obvious to a common understanding than the one before us. The one is to determine whether a will was made, and fairly made; the other, whether the operation of such an instrument, not destroyed, has been recalled. This last, the Legislature has enacted, shall not be proved by parol. Can the court by any analogy say the same of the former? If we are to look to the policy, what is that which governed the Legislature? It is not that a will once made in writing is, from that circumstance, to be taken as necessarily in its nature continuing to be the will of the maker until it be canceled or revoked in writing, nor that it is not right to annul it as soon as it is made to appear in any manner, whether by parol or otherwise, that it did not continue to be the maker's will. But the reason for not hearing the parol proof is (446) that there is not the ordinary security that it is true. The declarations sworn to are those of a dead person, and generally will purport to have been made to the witness or witnesses alone. The law-giver may well act on the presumption, which experience proves to be too well founded, that many men are withheld from falsehood, less by the restraint of conscience than by the apprehension of detection and temporal punishment. This is the principle of the statute. It repudiates the testimony, not because it ought not to be acted on, if true, but because, if false, there are no means of showing it to be so, and because that circumstance constitutes an immunity to the witness which tempts him to crime.
But when the evidence is of declarations relating to the creation of the will, there are not only the guarantees for veracity common to other cases, but peculiar ones, arising out of the provisions of the statutes passed to secure to the citizen the establishment of the will he has made, and against the imposition of one he has not made. Such declarations would be manifestly inofficious in the case of a will altogether in the testator's own handwriting. With respect to attested wills, there must in all cases be one, and where land is devised, two witnesses capable of speaking to the fact to which the declarations purport to refer. There is then witness against witness, and the case is not within the policy which dictated the statute, more than within its words. Against this conclusion the case of Provis v. Reed, 15 Eng. Com. L. Rep., 490, has been cited. The opinion of Mr. Justice Parke is founded on the policy of the statute of frauds, but Chief Justice Best and the other judges do not go on the legislative provisions, but on general principles. I do not find that any other English judge but Mr. Parke has entertained the opinion expressed by him; that is, for his reasons. The decision of the whole Court was, it is true, against the evidence. But upon the general question, the respect due to those judges is overborne by the authority of a judgment of our own courts, directly in point, and certainly the cases cited in Reel v. Reel prove that the court of (447) common pleas erred in supposing that the question was made in that case for the first time.
The residue of the objection obviously goes to the weight of the evidence. It is true there are many cases in which it would be entitled to but little weight; nay, but few in which it would be entitled to any. Yet, if there be others in which it would subserve the cause of truth and justice, it must be heard, leaving its effect to those whose province it is to weigh it. I think there is little danger in this, when the court can aid the jury by pointing out its legitimate tendency. When the fact of fair execution is once established by witnesses fully believed, the credit of the witnesses deposing to declarations inconsistent therewith is at once subjected to a severe test. But suppose the declarations to be fully and satisfactorily proved, there are so many other motives for a testator to speak evasively, or even untruly, both of the execution and the provisions of his will, besides that of disavowing it in its actual form to be his will as to prevent much attention being paid by anybody to such evidence. Looking at such evidence judicially, in a case in which it should be addressed to me, I should give it, if any, the least possible effect in the case supposed. For if the testator lived long after executing the instrument, had the possession of it, or could command it, or had it in his power to make another will, or to revoke the first, and did not, the fact of leaving it in existence, supported by the witnesses to it, to be repelled only by the uncertain evidence of his vague declarations, so far outweighs, in a reasonable mind, those declarations as to make them but dust in the balance. The declarations were never made, or have been misunderstood, or were not serious, but intended to deceive. The truth in these respects is not likely to be obscured, because it is to be recollected that the attesting or other witnesses on the other side must speak to the very fact to which the declarations refer. But it is likewise to be remembered that the witnesses offered to support the will may testify untruly. Of their truth, the subsequent declarations are, amongst (448) other things, the test. Suppose a forgery of a will out and out, and that the supposed testator averred solemnly on his death bed that he never had made a will, and that he meant to die intestate, and this established by indubitable proof. If this evidence could not be heard, a single perjured witness might establish a fabricated writing disposing of the largest personal estate, and two might carry all. On this ground, evidence of this character must be admissible. As was said in Reel v. Reel, a contrary rule would palm upon the world wills never made, or made under duress — a proposition the very stating of which shocks us. Wherefore, I think there must be a new trial.
I adhere to the opinion I expressed in the case of Reel v. Reel, nor do I think that the Act of 1819, providing that no written will shall be altered or revoked by parol, affects this question. It is very clearly not within the words of the act, for they relate to what was once a will; these declarations are offered to show that the proposed script never was a will. The questions are essentially different in their nature. The act prohibits a will, when actually made, from being altered or revoked by parol evidence. This is an attempt to exclude declarations going to show that it is not and never was a will. Suppose the defendant had made a case going to show a forgery, and the question was nearly balanced, shall not the declarations of the alleged testator be heard to determine the fact? Does the letter or the spirit of the act inhibit it. Yet, if the testimony be excluded under the statute in a case like the present, it must be excluded in all. It is enough for courts to see and ascertain the legislative will; it is not for them to inquire why the Legislature has excluded parol evidence upon questions of alteration or revocation, and permitted it in questions touching the making of a will. But I think I can perceive why they inhibited it in the one case and not in the other; in the first place, if the written will be established, there is clear and certain proof of what was the will of the testator at one time. By admitting mere parol declarations of revocation or alteration, a very uncertain and questionable will may be (449) substituted, by the perjury and misrepresentation of witnesses, for one clearly established, and there are no means of preventing these perjuries, as they point to nothing by which their falsity may be detected. Mere words, such as "I revoke my will," which were admissible before the late statute, cannot be easily disproved, because they may be sworn to have been uttered when no one but the perjured witnesses were present. But it is not so with declarations that the script in question never was the will of the supposed testator; they refer to the time of the alleged making — to the opposing proof which supports the will — and they may be weighed and compared with it. This policy is not confined to the Act of 1817. It is to be found in the book debt law; a person may swear to his account for goods sold and delivered (not sold only), or for work and labor done, but not to a special agreement, or even to money lent, because the latter are incapable of disproof; they point to nothing by which their truth can be tested. It is otherwise as to goods sold and delivered, or work and labor done. There is some chance of opposing false accounts of this description, for the consideration is something visible, something tangible, the want of which may very probably be shown, and prevent imposition to any great extent. The same policy is visible in this statute. It is not for me to say how much such evidence ought to weigh, having, as I have elsewhere observed, no weights and measures for my own mind. It must, under the circumstances of each case, be left to the judgment and discretion of the jury as rational men; if they believe it, they will give it effect; if they do not believe it, of course they will pay no attention to it. I think a new trial should be granted.