Armstrong v. Farrar

• Decision Date: 31 July 1844
• Parties: ARMSTRONG ET AL. v. FARRAR ET AL.
• Court: Missouri Supreme Court

8 Mo. 627

ARMSTRONG ET AL.

v.FARRAR ET AL.

Supreme Court of Missouri.

July Term, 1844.

ERROR TO FRANKLIN CIRCUIT COURT.

TRUSTEN POLK, for Plaintiff. 1. The court below erred in refusing to allow the counsel of the plaintiff below to ask their witness, “whether he had ever heard John S. Farrar, one of said defendants, say anything as to the childishness or mental imbecility of the deceased, Leonard Farrar, at the time of the making the paper claimed to be his will.” 1 Phil. Ev. 90, 4th Am., from 7th London ed., by Cowen & Hill; ibid., same ed., 92; 2 Starkie's Ev. 22; Bauermann et al. v. Radenius, 7 Term R. 663; Dillon v. Chouteau, 7 Mo. R. 386; 2 Starkie's Ev. 25; Lucas et al. v. De la Court, 1 Maule and Selwyn, 249; Nichols v. Dowding and Kemp, 1 Starkie's N. P. C., 81 (or 2 Eng. Com. L. R. 305); Sangster v. Magereddo et al. 2 Eng. Com. L. R. 338; Grant v. Jackson, Peake's N. P. C., 203; Thwaites v. Richardson, ibid. 16; Wood and others v. Braddick, 1 Taunton, 104; Lowe v. Boteler and Eastburn, 4 Har. and McHen., 346; Jackson, ex dem. Hoogland v. Vail, 7 Wendell, 125; John, Adm'r, v. Beardsley et al., 15 Johns. R. 3; King v. Inhabitants of Hardwick, 11 East, 579; 4 Serg. and Rawle, 203; Lightner et al. v. Wike, 13 ibid. 328; Atkins v. Sanger, et al. 1 Pick. 192-3. 2. The Circuit Court erred in not setting aside the verdict, and granting the plaintiff in error a new trial.

LEONARD and BAY, for Defendants. 1. All the issues were found for the defendants, and it is therefore immaterial whether or not the evidence was sufficient to sustain the plea of the statutes of limitations. 2. The questions asked by the plaintiffs, of their witness, “whether he had ever heard John S. Farrar, one of the defendants, say anything as to the childishness or mental imbecility of the deceased, Leonard Farrar, at the time of the making of the paper claimed to be his will?” was properly excluded: because--1st. The question before the jury was, whether the testator was of sound, disposing mind and memory, or not, at the time of making the instrument purporting to be his will? and this question is to be determined by facts and circumstances which took place at the time. The evidence offered is of a bare opinion, or assertion which may have been expressed by one of the defendants not under oath, and perhaps entertained without any reasonable ground. Phillips et al. v. Hartwell et al., 1 Mass. 71. 2nd. The declarations or statements of one of the defendants could not be given in evidence to the prejudice of the others. There was no privity between them; their rights were distinct, and independent of each other. Osgood v. Manhattan Co., 3 Cowen, 623.

NAPTON, J.

This was a petition by the plaintiffs in error, heirs at law of Leonard Farrar, deceased, contesting the will of said Farrar, and praying an issue to be made up, according to the provisions of our statute, for the purpose of determining the validity of the said supposed will. The legatees and devisees under the will were made parties defendant. The ground alleged in the petition for setting aside the will, was the incapacity of the testator at the time of making his will. Three of the defendants, John S. Farrar, Richard Farrar and Perrin Farrar, appeared and pleaded--first, that the testator was of sound and disposing mind; and, second, the bar of the statute of limitations. The issue on each of the pleas was found for the defendants, and the plaintiffs applied for a new trial.

The will of Leonard Farrar is preserved by the bill of exceptions. The testator, after leaving some inconsiderable legacies to several of his children designated in the will, gives all his lands to his three eldest sons, John, Richard and Perrin, “to divide equally between themselves,” and appoints these three sons executors of his will.

Upon the trial, the counsel for the petitioners asked a witness, “whether he had ever heard John S. Farrar, one of the defendants, say anything as to the childishness or mental imbecility of the deceased, Leonard Farrar, at the time of the making the paper claimed to be his will.” This question was objected to, and excluded by the court, and exceptions were taken to the opinion of the court in excluding the offered testimony.

Entertaining the opinion which we do on this point, which is the chief one relied on as error, it is deemed unnecessary to examine the evidence given to sustain the plea of the statute of limitations, which the plaintiff in error contends was insufficient to warrant the verdict.

The rule laid down by Starkie and other elementary writers on evidence, that the admission of a party on the record is always evidence (at least against that party) was adopted by this court, in the case of Dillon v. Chouteau. The doctrine in its broad and unqualified sense, chiefly rests upon the cases of Bauerman v. Radenius, and Crait and Wife v. D'Aeth, 7 Term R. 670. Later authorities have limited and qualified its application; but, in departing from the inflexible rule of Lord Kenyon, the courts appear to have fallen into an irreconcilable conflict of opinion, as may be seen by reference to the cases collated by the learned editors of Phillips' Evidence. See Phillips' Ev. --, Cowen & Hill, editors.

Without entering into any investigation of the numerous authorities on either side of the question, we will merely advert to what we suppose to be the true meaning and sense of the rule, that the declarations of parties may be given in evidence against them. The rule, as we suppose, is founded, first, upon the reasonable presumption, that no person will make any declaration against his interest, unless it be founded in truth; and, second, upon the fact, that the person making the declaration against his interest, being a party to the suit, cannot be examined, and therefore does not conflict with the established maxim, that the best evidence which the nature of the case admits of must be produced.

It will be found, I think, upon examination of the authorities, that in some of the cases, the first of these principles only is relied on, and in others, the courts have looked only to the last: hence, the diversity of conclusions arrived at. The cases of Wood v. Braddick, 1 Taunton, 104, Nichols v. Dowding and Kemp, 1 Starkie's Cases, 81, and Grant v. Jackson, Peake's Cases, 203, are instances in which the courts have disregarded the maxim of only admitting secondary evidence, where better evidence cannot be had, and looked only to the interest of the person whose declarations were allowed. In the case of Bauerman v. Radenius, the court considered the interest of the parties as out of the question, and declared it an inflexible rule, that the admission of a party on the record should be received in evidence, because that party could not be examined.

Without feeling under the necessity in this case, of determining which of these conflicting adjudications should be...