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Wood v. Sawyer.

Dig. 6, 76-77; Story Eq, (5th ed.,) 1445-'9, and notes; White v. Wilson, 13 Ves. 87 n., (Sumn.); Paine v. Hale, 18 ib., 475 and notes; Jackson v. Berry, 2 Cond. Ch. 224--'5; Harris v. Cotterill, 3 Mer. 678; although no decree in favor of a will is made except after a verdict in a court of law upon an issue of devisavit vel non. In chancery the rule is that no paper can be admitted as part of a will unless formally executed, or unless referred to in a formally executed paper as already existing. Habergham v. Vincent, 2 Ves. Jr. 204; Smart v. Prigeon, 6 Ves. 560; Muckleston v. Brown, ib. 67; Redf. Wills, 261-4 and 266, n.; In re Lancaster. To same effect Chambers v. McDaniel, 6 Ire. 226; also Redf. on Wills, 287; 4 Kent. 531.

The letters are no part of the will, and do not even create a trust which Equity will execute. The doctrine in Cook v. Redman, 2 Ire. Eq., 623, and Thompson v. Newlin, 6 Ire. Eq. 380; S. C., 8 Ire. Eq. 32, has no application here. There the wills were upon the face perfect, and the Court put its interference upon the ground of fraud, the testator having parted with all his interest. Here the testator reserves his interest over the property in question, and, things being in this pos- . ture, dies; thereupon that reserved interest descended to his heirs. The testator says that his devises to Wood, &c., are subject to letters to be written in future, i. e., regard being had to the law, "subject to my intention not to dispose of it by will," in other words, "I intend it for my heirs."

The question is, Shall a declaration of this be made by a Court of Probate, or put off for a Court of Equity? There is no reason why it may not be made here. See analogous doctrine in regard to conditions precedent unperformed, or become impossible. 1 Jarm., 796-'8, 806, 682; Van Horne v. Dorrance, 2 Dall., 317; Moakley v. Riggs, 19 John. 71-'2; Taylor v. Bullen, 6 Cow. 627; 1 Jarm., 23, 26. In England the Ecc. Courts will reject a paper purporting to execute a power, if the power be not properly executed, ib. 14, 26, &c.

Wood v. Sawyer.

See Weeks v. Malterdet, 14 East, 568. There can be no reason why our Courts of Probate should blindly set up a will, when its contents show that it can have no effect.

Nor are these devisees relieved from an application of this doctrine by the expressions of confidence, &c., contained in the will. These are only customary pledges of affection and confidence, leaving the duties of the agents to be declared by courts, as in ordinary cases; or, supposing that he considered that their honor would be touched by the contents. of the letters, now, that these are suppressed, he must be taken to have intended that they should be governed by the rules of law.

2. His Honor erred in not admitting the evidence that one of the caveators was not a gambler. See Wheeler v. Alderson, 5 Ecc. Rep., 211, 1 Stark. Ev., 386; Rex v. Hilditch, 24 Com. Law, 330; Rowe v. Brenton, 3 Man. & Ry., 301; Brown v. Murray, 21 Com. Law, 431, and note, 3 Chitty's Gen. Pract., 906-'7.

3. (a) Evidence of the testator's habit and manner should not have been admitted to repel the inference of an unsound mind arising from a causeless insult to an unoffending man. State v. Tilley, 3 Ire. 424; McRae v. Lilly, 1 Ire, 117; Jeffries v. Harris, 3 Hawks, 105; State v. Barfield, 8 Ire., 344; Bottoms v. Kent, 3 Jon. 154. No matter how slight the error, it is ground for a new trial. Barton v. Morphis, 2 Dev., 520; Downey v. Murphy, 1 Dev. & Bat., 82.

(b) An issue like this is a proceeding in rem to inform the Court, and is not governed by the technical rules of plead ing, or of evidence. Strictly, there are no parties, and can be no nonsuit. St. John's Lodge v. Callender, 4 Ire., 335; Sawyer v. Dozier, 5 Ire., 97; Benjamin v. Teel, 11 Ire., 49.

4. The memorandum signed by Cherry was improperly admitted. It may be styled an "Irish deposition," a written statement of the evidence of a witness, to which he was not sworn, and as to which there was no opportunity for cross

Wood v. Sawyer.

examination, which is forced upon the caveators without their consent. 1 Green Ev., 439.

5. The statement of the expert should have been admitted. Melvin v. Easley, 1 Jon., 386, is not in point, yet may be doubted even so far as it goes. See Bowman v. Woods 1 Iowa, 441. All agree that the witness may refer to books. Collier v. Simpson, 24 Com. Law, 219. The matters referred to in this way are not evidence of themselves, but are brought in to test the quality of that which is the only evidence in that connexion, viz., the opinion of the expert. See 1 Green Ev., s. 440, 3 ib. 416.

6. The extract from the "Life of Iredell " was inadmissi ble. The date of the book is not given, and therefore the genealogy throws no light upon the state of the family at the death of the testator. It was irrelevant, and calculated to confuse the jury.

7. The instructions asked in reference to the continuance of the monomania should have been given. Dew v. Clark, 2 Ecc. Rep., 436; Groom v. Thomas,, 4 Ecc. Rep., 181. See Ray's Med. Juris.

Moore, Smith, Winston, Heath, Gilliam, Conigland and Phillips & Battle, contra.

1. Indistinctness in the statement of the case cannot help the appellants. Honeycut v. Angel, 4 Dev. & Bat., 308; Fleming v. Holcombe, 4 Ire., 268; Love v. Johnston, 12 Ire., 355; Fagan v. Williamson, 8 Jon. 433; Wright v. Stowe, 4 Jon., 516; State v. Jim, 3 Jon. 348.

2. Courts of Chancery in England are not Courts of Probate as to wills of real estate. Jones v. Jones, 3 Mer., 170; Pemberton v. Pemberton, 13 Ves., 293; Jones v. Frost, Jac., 217, 1 Jarm., 23, n. (f); Roberts' Princ. of Chan., 211, (L Lib. 86.) Therefore the deduction as to the functions of our County Courts in such matters is unfounded. Courts of

Wood v. Sawyer.

Equity, as courts of construction, will administer the trusts attached or implied. Thompson v. Newlin, 3 Ire. Eq., 338, and again 6 Ire. Eq., 380; Brown v. Clegg, 6 Ire. Eq., 90; Shelton v. Shelton, 5 Jon. Eq., 292; Riggs v. Swann, 6 Jon. Eq., 118.

3. The evidence as to the person referred to by the testator as a "gambler" was properly excluded. The case stated by the Judge shows that its admission was a matter of discretion with the court below. Phila. & T. R. R. Co. v. Simpson, 14 Pet., 462; Johnston v. Jones, 1 Black, 207.

4. Evidence of the testator's general habit when offended was properly admitted. It being admitted that he was sane as to other persons, evidence that he had treated such persons in the same manner that it was shown by the caveators he had treated persons who were the objects of his supposed monomania-was not only relevant, but important.

5. The paper by Cherry was put in as an act and declaration by the testator, showing capacity and deliberation. Norwood v. Morrow, 4 Dev. & Bat., 442; Oneal v. Walter, 1 Rich., 234; Halsey v Sensebaugh, 1 Smith, N. Y., 485; Russell v. Hudson, R. R, 3 ib., 134; Love v. Johnston, (above.)

6. The stories told to the expert by former patients or their friends, could not be repeated by him under the circumstances. In some cases, for the purpose of resisting attacks made upon physicians for malpractice, evidence of that sort might be admissible. That is not the case here. See Biles v. Holmes, 13 Ire., 485; Pope v. Askew, 1 Ire., 16: Mudd v. Suckermore, 31, Com. Law, 406. To admit such evidence would tend to spin out trials indefinitely.

7. For the admissibility of the extract from the Life of Iredell, see Monkton v. Atto. Genl., 2 Russ & Myl., 431, 3 Phil. Ev., (1859) 597, 6 M. & G., 471; Morgan v. Purnell, 4 Hawks, 95; Moffit v. Witherspoon, 10 Ire., 185; Clement v. Hunt, 1 Jon. 400.

8. In reference to the instruction asked for upon the pre

Wood . Sawyer.

sumption of continuance of monomania-that goes upon the idea that the presumption is a presumption of law, which is not true. Sutton v. Sadler, 3 C. B., (N. S.) 87, (91, Com. Law); Crane v. Lessee of Morris, 6 Pet. 598, (p. 616); Kelly v. Jackson, ib., 622; State v. Patton, 5 Ire., 180; also upon the erroneous notion that monomania leaves the other faculties wholly untouched. Dew v. Clark, 3 Add., 79, Shelford, (2 Law Lib.) p. 30, Taylor's Med Jur., 626. See remark in Phil Ev. 3d, 292, showing that evidence of general sanity is always some, though not conclusive evidence of the disappearance of monomania. The doctrine as to a presumed continuance of insanity appears in the books to be applied to cases of general insanity. Atto. Genl. v. Parnther, 3 Brown, C. C., 441; Jackson v. Van Dusen, 5 John., 111; Grobill v. Barr, 4 Barr, 441; Hall v. Warren, 9 Ves, 611; Kemble v Church, 3 Hagg., 273; Clarke v. Fisher, 1 Paige, 174; Boyd Ely, 8 Watts, 70.

READE, J. It was admitted that the paper propounded was executed with the formalities which the law requires.

In the first clause of the paper, there is a gift to "Edward Wood, his heirs and assigns forever, subject to such dispositions and instructions as I shall make in a private letter directed to him, and which he will find with this will.”

In the second clause, there is a gift to "C. W. Hollowell, his heirs and assigns forever, subject only to the instructions I may give in a private letter I shall write him, and will be found with this my last will."

In the third clause, there is a gift to "II. J. Futrill, his heirs and assigns forever, subject only to the instructions. and provisions I shall make in a private letter directed to him, and which will be found with this my last will and and testament."

These clauses dispose of the bulk of the testator's estate, which was a very large one.

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