Baker v. Lewis

• Decision Date: 21 January 1834
• Citation: Baker v. Lewis, 4 Rawle 356 (Pa. 1834)
• Parties: BAKER v. LEWIS.
• Court: Pennsylvania Supreme Court

4 Rawle 356

BAKER v. LEWIS.

Supreme Court of Pennsylvania.

January 21, 1834

IN ERROR.

The expression, by the court, of an opinion upon the evidence even if incorrect, is not the subject of a writ of error. But if the court give a binding direction on the facts, and thus withdraw them from the jury, it is error.

To tell the jury that where a testator is of sound mind, and not under undue influence, he has a right, which cannot be controlled, to make such disposition of his property as he pleases, and that under such circumstances, the reasonableness or otherwise, of his testamentary dispositions is of no consequence, is not error. But to instruct them that the contents of the instrument are not evidence, however unreasonable and absurd its testamentary dispositions may be even where its execution is impeached on the ground of fraud and imbecility of mind in the testator, is error.

WRIT of error to the Court of Common Pleas of Delaware County. The defendant in error was the plaintiff below.

The nature of the case, and the points decided, sufficiently appear from the opinion of the COURT, which, after argument by Dick, S. Edwards and Kittera, for the plaintiff in error and Lewis, J. Edwards, and Tilghman, for the defendant in error, was delivered by

ROGERS, J.

This was a feigned issue, directed by the Register's Court to the Court of Common Pleas of Delaware County, to try the validity of a writing, purporting to be the last will and testament of Azariah Lewis, deceased. The plaintiff and principal devisee examined the three subscribing witnesses to the will, two of whom deposed, that he was of sound disposing mind, & c. at the time the instrument of writing was executed; the other, that he was sane at the time it was signed. The defendant opposed the probate of the will on two grounds; first, imbecility of mind, caused by age and infirmity, and secondly, undue influence exercised over the testator, by his son Robert, the principal devisee, either by himself, or at his instance. To these points many witnesses were examined, who proved facts, going to the execution of the instrument, which, if believed by the jury, entitled the defendant to a verdict.

The remarks attributed to the court in the first exception, are but the expression of an opinion on the evidence, which, if even incorrect, is not the subject of error. It is not an error of which a superior court can take notice, if there...