Gibson v. Gibson

Citation24 Mo. 227
PartiesGIBSON, Plaintiff in Error, v. GIBSON et al., Defendants in Error.
Decision Date31 January 1857
CourtUnited States State Supreme Court of Missouri

1. Where it is sought to invalidate a will on the ground that the alleged testator was under undue influence, and was at the time of the signing the will of unsound mind by reason of intoxication, declarations made by him to the effect that he had never made the will--that if he had signed it they had got him drunk and made him do it, for he had no recollection of it-- are inadmissible in evidence.

Error to Cole Circuit Court.

This cause comes to this court upon the following agreed statement of facts: On the 26th day of September, 1853, Edward H. Gibson, one of the defendants, produced to the clerk of the Miller County Court an instrument of writing as the last will and testament of Hugh Gibson, deceased, which was admitted to probate as such; and which said instrument of writing and the probate thereof are as follows:--[Here follow the will and the probate thereof. It is unnecessary to set them forth. By the will, all the property of the said Hugh Gibson was devised to Edward H. Gibson and wife and to their children, the testator cutting off his other children with one dollar each.] In October, 1853, the plaintiff, a son of said Hugh Gibson, filed his petition contesting the validity of the will on the grounds that the testator was under the undue influence of Edward H. Gibson and his wife, and was, when he signed it, of unsound mind from intoxication. These facts were denied by Edward H. Gibson and his wife, and, thereupon, an issue was made up as required by the statute. The cause was submitted to a jury. It appeared in evidence that Hugh Gibson, at the date of the will, was about seventy years old, and of more than ordinary vigor of intellect of his age, but addicted to intoxication, and when intoxicated incapable of transacting business; that he lived with Edward H. Gibson, who transacted his business; and that the will was in Edward H. Gibson's handwriting. The plaintiff then offered to prove by John Bromley and others that in 1851 or 1852 the testator said that he had never made the will; that if he had signed it, they had got him drunk and made him do it, for he had no recollection of it; that he was duly sober and in his right mind when he made these declarations. To this evidence defendant objected, and the objection was sustained. The plaintiff excepted, and took a nonsuit with leave to move to set the same aside, which motion having been made, was overruled by the court.

Edwards and Gardenhire, for plaintiff in error.

I. The court erred in rejecting the declarations of the alleged testator. (Swinburne on Wills, pp. 998-9; 1 Sto. Eq. 211; 1 Ves., Sen., 284; Broom's Leg. Max. 232; Smith v. Fenner, 1 Gall. 170; Jackson v. Kneiffer, 2 Johns. 3; Beel v. Beel, 1 Hawks, 268; Trimmer v. Payne, 7 Ves. 517; Rambler v. Tryon, 7 S. & R. 90.)

Parsons and Batte, for defendants in error, cited 2 Johns. 31; Moritz v. Brough, 16 S. & R. 403; 1 Gallison, 170; Provis v. Reed, 5 Bingh, 435; Nelson v. McGiffert, 3 Barb. Ch. 158; Den d. v. Van Cleve, 4 Wash. C. C. 262.

LEONARD, Judge, delivered the opinion of the court.

Upon an issue of “will or no will,” the declarations of the alleged testator are offered in evidence--sometimes as part of the transaction--sometimes as verbal acts (as they have been called) indicating the mental condition of the testator--and at other times as a mere narrative of facts, entitled to credit as such on account of the relation of the speaker to the subject matter. Whenever the declarations can be considered as falling within the first class of cases, they are, of course, admissible upon the common doctrine of the res gestæ, and the only question then is whether they are so connected with the main fact to be proved as to fall within the rule. They are also clearly admissible when the condition of the testator's mind is the point of contention, or it becomes material to show the state of his affections, and they are then received as external manifestations of his mental condition, and not as evidence of the truth of the facts he states. For this purpose, and as a mere narrative of facts, we do not think they ought ever to be received, and this seems to be the general doctrine of the authorities, although there are certainly conflicting decisions on the subject.

In the English case of Provis v. Reed, decided in 1825 (5 Bingh. 435), which was a real action by the devisee against the heir-at-law, and in which the will was impeached on the ground of fraud and undue influence in obtaining it, the heir, after having given other evidence on the point, offered the declarations of the testator, made after the date of the will, to the effect that “the devisee (who was a stranger in blood to the testator) had been trying to get his property, but that he should not have it; that Scott (the attorney who prepared the will) had drawn up a paper, and they had got him to sign it, but that it was not worth a farthing, and that his land should go to his family.” The court rejected the evidence, declaring that declarations of this character, tending to impeach the validity of the instrument, had never been received. And it is believed that there is no English case contradicting this, although the previous equity case of Nelson v. Oldfield (Vernon, 76) is the case generally referred to as an English authority to let in such declarations. It is to be observed, however, that the point to be there decided was whether a will of personalty, proved in the spiritual court, could be controverted in a court of equity; and, although it appears that the complaints of the testatrix, during her last sickness, as to the means by which she had been induced to execute her will, were read in evidence, no objection was made to the evidence, and the question as to its admissibility was not brought to the attention of the court, but the matter passed sub silentio, without any judgment of the court upon the question. In Jackson v. Kniffen, decided in New York, in 1806 (2 Johns. Rep. 31), the declarations made after the will were to the effect that the instrument was not his will; that he had been forced to sign it, and would have been murdered had he refused to do so; and were rejected by the court upon the ground that they were not competent evidence of the facts stated. In Smith v. Fenner (1 Gall. Rep. 174), tried before Justice Story, in Rhode Island, in 1812, the defendant, who claimed as heir, in order to prove that the will under which the plaintiff claimed as devisee was obtained by fraud and imposition, offered in evidence the declarations of the testator, made before, at the time, and immediately after the making of the will, and also his declarations made long afterwards and during the last seven years of his life. The defendant objected to the last declarations, and they were rejected; but the others were received, no objection being made to them. In Moritz v. Brough, decided in Pennsylvania, in 1825 (16 Searg. & Rawl. 405), after proof that the wife was a high-tempered woman, with considerable control over her husband, who was of easy temper, the declarations of the testator, made after the will, were offered in evidence to the effect “that the will was not made according to his wish; that he was plagued by his wife to make it as he did, and that he had made it as it was to get clear of her importunity,” were rejected by the court. In Comstock v. Hadlyne, decided in Connecticut, in 1830 (8 Conn. 263), the question was as to the capacity of the testatrix and undue influence in procuring the will, and it having been proved that the testatrix belonged to the Baptist society, and her declarations about the time of making the will having been also proved, to the effect “that the Hadlyne society or Presbyterians were about her as thick as bees to get her property,” it was claimed that these declarations were to be regarded by the jury as evidence of the facts thereby asserted. But the court, in which the cause was tried, decided otherwise, and held that they could be used for no other...

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