Giles v. Giles
| Decision Date | 08 January 1910 |
| Citation | 204 Mass. 383,90 N.E. 595 |
| Parties | GILES v. GILES et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Elbridge R. Anderson, Hale & Dickerman, and Jas. P. Richardson, for appellants.
Jas. E Kelley, for appellee.
This was a trial in the superior court upon three issues, framed upon an appeal from a decree of the probate court allowing the will of Charles C. Giles. The first issue presented the question whether the will was duly executed. The second raised the question whether it was procured by the undue influence of the petitioner. The third issue was as follows 'Was said instrument revoked by the said Charles E. Giles subsequently to the date, execution and publication thereof by the making, execution and publication of another will which has been lost or destroyed, and its contents cannot be proved so that it can be propounded for probate?'
Upon the first issue, after testimony by the subscribing witnesses tending to show that the will was properly executed, it was admitted in evidence, subject to the appellants' exception, and at the close of the testimony the jury were directed to return a verdict in favor of the petitioner. To this direction the appellants excepted.
The will was rightly admitted in evidence, and the testimony well warranted a finding that it was duly executed. If, indeed, full credence was given to the testimony of these witnesses, this conclusion followed almost necessarily. It is true that two of the witnesses had little definite recollection of the transaction, apart from their knowledge that their signatures to the clause of attestation were genuine, and that they knew from their signing that they saw the execution of the will by the testator in the presence of the three witnesses. While the jury, upon the facts, could not have been expected to reach any other conclusion than that which was recorded under the direction of the court, the issue was one to be passed upon by a jury, which is the tribunal for the determination of questions of fact. Where a proposition is only to be established by testimony of witnesses, the judge cannot properly direct a jury to decide that the fact is proved affirmatively by testimony. It is for the jury to say whether the witnesses are entitled to credit. Merchants' Nat. Bank v. Haverhill Iron Works, 159 Mass. 158, 34 N.E. 93; Com. v. McNeese, 156 Mass. 231, 30 N.E. 1021; Way v. Butterworth, 106 Mass. 75; Whitten v. Haverhill, 90 N.E. 409. We know of no case in this commonwealth in which it has been determined that a jury can be directed to return a verdict, upon the oral testimony of witnesses, in favor of a party who has the burden of proof of the facts to which they have testified. This direction was erroneous and the exception must be sustained.
The second issue was abandoned by the appellants and was not answered.
Upon the third issue the jury were directed to return a verdict for the petitioner, subject to the exception of the appellants. On this issue the burden of proof was upon the appellants, and the question is whether there was any evidence that would warrant a finding in their favor.
By Rev. Laws, c. 135, § 8, it is provided that 'no will shall be revoked, except by burning, tearing, canceling or obliterating it with the intention of revoking it by the testator himself or by a person in his presence and by his direction, or by some other writing, signed, attested and subscribed in the same manner as a will.' It is not contended that this will was revoked unless by some writing. The purpose of the statute is to prevent the revocation of a will by a writing, without as strong proof of the execution and revocatory character of the writing as is required to establish a will.
In the present case evidence of the relations of the testator to the different members of his family was introduced from which it was argued that the testator would not be likely to leave his property to be disposed of according to the provisions of this will. But this was not evidence of the execution of a revocatory writing in the presence of three witnesses. Upon the appellant's theory, it was inconsistent with the making of the will, which by the very hypothesis of the question, it was conceded that he had made. It tended as strongly to contradict the fact assumed in the question as it did to show a revocation of the will.
Declarations of the testator, made to some of the appellants who were his children, tending to show that he had disposed of his estate differently from the disposition shown in the will, were introduced. Let us consider, first, the competency of these declarations, as evidence of the execution of a paper 'signed, attested and subscribed in the same manner as a will.' We will consider the subject, first, apart from Rev. Laws, c. 175, § 66, which greatly enlarges the power of the courts to admit as evidence the declarations of deceased persons. The great weight of authority is that, under statutes similar to ours, a declaration of a testator cannot be received to prove the execution of a will, or of a writing containing a revocation of a will. This is shown with great elaboration, and with a citation and review of many authorities, by Mr. Justice Peckham in Throckmorton v Holt, 180 U.S. 552, 21 S.Ct. 474, 45 L.Ed. 663. The same doctrine is held, with full discussion and without dissent, in In re Kennedy, 167 N.Y. 163, 60 N.E. 442. See, also, note to Clark v. Turner, 38 L. R. A. 433, 436, 442 (50 Neb. 290, 69 N.E. 843). In Stevens v. Stevens, 72 N.H. 360, 56 A. 916, it was decided that revocation of a will cannot be proved by declarations of the testator. There are many other cases of similar import. The declarations of a testator which are commonly received in proceedings for the probate of wills are expressions that tend to show his mental condition and feelings, as bearing upon the probability that the instrument in question was the product of a sound mind, unaffected by undue influence. Declarations to prove a fact, like formal execution of an instrument, stand upon a different ground, and come within the general rule applicable to hearsay evidence. Instruments that may be executed and attested like wills fall within another rule, viz., that such writings must be proved if proved if possible, by the attesting witnesses. There are cases in out own state bearing directly upon this subject. In Pickens v. Davis, 134 Mass. 252, ...
To continue reading
Request your trial