Frew v. Clarke

• Decision Date: 06 January 1876
• Citation: 80 Pa. 170
• Parties: Frew <I>et al. versus</I> Clarke.
• Court: Pennsylvania Supreme Court

Page 170

80 Pa. 170

Frew et al. versus Clarke.

Supreme Court of Pennsylvania.

November 2, 1875.

January 6, 1876.

November 2d 1875.

Before AGNEW, C. J., SHARSWOOD, WILLIAMS, MERCUR, GORDON, PAXSON and WOODWARD, JJ.

Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1875.

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J. Dalzell, J. H. Hampton and T. M. Marshall, for plaintiffs in error.—The paper in evidence as a will is an imperfect paper; the presumption is against such a paper operating as testamentary: 1 Redf. on Wills 170, sect. 7. It could not be donatio causa mortis because not made in periculo mortis: Michener v. Dale, 11 Harris 59; Harris v. Clark, 3 Comstock 93. This paper cannot be treated as testamentary: Parrish v. Stone, 14 Pick. 198; Holly v. Adams, 16 Verm. 206; Williams on Personal Prop. 421-24; Plumstead's Appeal, 4 S. & R. 545; Grant v. Levan, 4 Barr 424; Stein v. North, 3 Yeates 324; Shield v. Irwin, Id. 389; Murry v. Murry, 6 Watts 353; Patterson v. Rickabaugh, 21 P. F. Smith 454. The paper at most was but an obligation to pay money: Mack's Appeal, 18 P. F. Smith 233. If it had testamentary quality, that was destroyed by delivery: Trough's Estate, 25 P. F. Smith 115; Campbell's Estate, 7 Barr 100; Withers v. Weaver, 10 Id. 391; Kidder v. Kidder, 9 Casey 268; Lisenbigler v. Gourley, 6 P. F. Smith 166; Pringle v. Pringle, 9 Id. 281; Zimmerman v. Streaper, 25 P. F. Smith 147. The paper if testamentary was not legally proved under the Wills Act, April 8th 1833, Pamph. L. 249, 2 Br. Purd. 1474; Grabill v. Barr, 5 Barr 441. Granting the testimony of Clarke that he saw the decedent sign the paper to be equivalent to the testimony of a subscribing witness, there must be facts and circumstances equivalent to another witness before it could be given in evidence: Carson's Appeal, 9 P. F. Smith 493; Hock v. Hock, 6 S. & R. 47. When the party who is to receive a large pecuniary benefit draws the will, keeps it in his possession after it is signed and is the only witness to prove its execution, it requires clear proof that the testator had actual knowledge of the contents: Boyd v. Boyd, 16 P. F. Smith 283. Clarke was not a competent witness. An object to be preserved by the statute was equality in the parties in interest. If Clarke be a witness this equality would be destroyed: Karns v. Tanner, 16 P. F. Smith 297; McBride's Appeal, 22 Id. 481. Whether the paper was made with the design to have a testamentary effect was for the jury although by legal construction, the paper was testamentary: Carson's Appeal, supra. The evidence of defendants overthrew the primâ facie case of plaintiff and the burden was then on him to prove by two witnesses that the decedent signed the paper with a knowledge of its contents: Mackensie v. Yeo, 3 Curteis 125 (1 English Eccles. Rep. 396).

M. W. Acheson, for defendant in error.—A will is an instrument which is in its own nature ambulatory and revocable; these qualities form the characteristics of wills: 1 Jarm. on Wills 11, note 1. If it is the intention of decedent that it should operate after his death it is testamentary: Thorold v. Thorold, 1 Phillimore 1 (1 English Eccles. Rep. 11); Habergham v. Vincent, 2 Ves. Jr. 204; Morrell v. Dickey, 1 Johns. Ch. 153; Hunt v. Hunt, 4 N. H. 434; 1 Redfield on Wills 272; Turner v. Scott, 1 P. F. Smith 126; Frederick's Appeal, 2 Id. 338; Rose v. Quick, 6 Casey 225; Patterson v. English, 21 P. F. Smith 458. Plaintiff was competent under Act of 15th April 1869: Pamph. L. 301, 1 Br. Purd. 624, pl. 16; Bowen v. Goranflo, 23 P. F. Smith 357.

Mr. Justice MERCUR delivered the opinion of the court, January 6th 1876.

This was a feigned issue to try the genuineness and testamentary character of a written instrument, of which the following is a copy, to wit: — "Know all men by these presents, that I, James McCully, of Pittsburg, Pa., do order and direct my administrators or executors, in case of my death, to pay Robert D. Clarke, the sum of seventy-five thousand dollars, as a token of my regard for him, and to commemorate the long friendship existing between us.

Witness my hand and seal this 17th day of April, A. D. 1872.

                    $75,000.                    JAMES McCULLY. [L. S.]"
                

Twenty errors have been assigned, yet all the substantial matters may be considered in answering the following questions: —

1. Is the instrument of a testamentary character?

2. Is the signature thereto in the handwriting of James McCully?

3. Was his signature obtained through fraud or imposition, or in his ignorance of the contents of the instrument?

The first is a question of law, the others questions of facts.

1. A will is defined to be the legal declaration of a man's intentions, which he wills to be performed after his death: 2 Black. Com. 500; Bouv. Law Dic.; 1 Jarman on Wills 11. An instrument in any form, whether a deed poll or indenture, if the obvious purpose is not to take place till after the death of the person making it, shall operate as a will: Habergham v. Vincent, 2 Ves. Jr. 204. It may be by an endorsement on a note: Hunt v. Hunt, 4 N. H. 434; or by letter: Morell v. Dickey, 1 Johns. Ch. 153. Whatever be the form of the instrument, if it vests no present interest, but only directs what is to be done after the death of the maker, it is testamentary: Turner et al. v. Scott, 1 P. F. Smith 126. The essence of the definition is, that it is a disposition to take effect after death: Redfield on Wills 5; Turner v. Scott, supra. Nor does it matter that the person intended to make a note instead of a will. If he used language which the law holds to be testamentary, his intention is to be gathered from the legal import of the words he employed: Id. No form of words is necessary to make a valid will. The form of the instrument is immaterial, if its substance is testamentary: Patterson v. English, 21 P. F. Smith 458; see also Rose v. Quick, 6 Casey 225; Frederick's Appeal, 2 P. F. Smith 338.

This instrument is in writing. It is signed at the end thereof. It contains no admission of indebtedness. It furnishes no evidence of a debt. It contains no promise to pay. It vested no present interest. It was not to take effect until after the death of McCully. In the meantime he could revoke it at his pleasure. It therefore possessed all the essential characteristics of a will, and was undoubtedly testamentary in its character.

2. The 6th section of the Act of 8th April 1833, requires that a will "in all cases shall be proved by the oaths or affirmations of two or more competent witnesses." The act does not require them to be subscribing witnesses: Jones v. Murphy, 8 W. & S. 295; Carson's Appeal, 9 P. F. Smith 493. Although the body of the will be not in the handwriting of the testator: Weigel v. Weigel, 5 Watts 486; Ginder v. Farnum, 10 Barr 98; Derr v. Greenwalt, 26 P. F. Smith 254. It may be proved then by competent witnesses, two or more in number. In this case, some fifteen witnesses testified to the authenticity of McCully's signature. Among the number was Robert D. Clarke, the defendant in error. It is claimed that he was incompetent. If so, it must be on the ground of either interest or policy. The first section of the Act of 15th April 1869, declares "no interest or policy of law shall exclude a party or person from being a witness in any civil proceeding." The proviso to the section, after wholly excluding from the operation of the act several classes of cases, declares, inter alia, the act shall apply in "issues and inquiries devisavit vel non." This was an issue devisavit vel non. It was the very question in controversy. It is then just the case in which the Act of Assembly says Clarke is a competent witness, although a party and interested. To deny this, is to disregard the specific terms of the act, and to refuse to give effect to the language cited. It was, therefore, held in Bowen v. Goranflo, 23 P. F. Smith 357, that one who was a party to the issue and both executor and devisee under the will in controversy, was a competent witness.

A careful review of the act confirms us in the correctness of the conclusion at which we then arrived. We do not see how effect can otherwise be given to the clause in question. It is claimed, however, that this construction of the statute will open the door to fraud and perjury. It may be so. It is possible that permitting parties to testify in any case has caused much perjury. The good and the bad in this world are very much blended. Many an act of the legislature may not produce unalloyed good, yet we must give effect to its provisions. If the evil preponderates in obeying its mandates, the corrective power is lodged in the legislature to modify or repeal what they have enacted. We therefore see no error in permitting Clarke to testify. The evidence in favor of the signature being McCully's, was most ample to submit to the jury. On that testimony they had a right to find, as they did find, the signature to be genuine.

3. The learned judge said to the jury there...