Haddock v. Boston & M.R. Co.
| Decision Date | 29 February 1888 |
| Citation | 146 Mass. 155,15 N.E. 495 |
| Parties | HADDOCK v. BOSTON & M.R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
S. Lincoln, for appellant.
Has the court authority, as matter of law, to admit a will to probate 78 years after the date of its execution, and 63 years after the death of the maker? And, as incidental to this, is there any limit of time elapsing after the death of the testator after which court has no authority to admit a will to probate? At a time when, by law, a married woman could not make a will devising real estate, a person who is conceded to have been at one time a married woman, made such a will. Is the fact that she made such a will competent evidence to show that at the time she had legal capacity to make it; that is was at the time a widow? See note in Shumway v. Holbrook 1 Pick. 117; Waters v. Stickney, 12 Allen, 13. The case in Essex, referred to by Mr. Justice JACKSON in his argument of Shumway v. Holbrook, supra, note 2, was, without doubt, the case of Bourne v. Greenleaf. A somewhat careful search has disclosed no case in which it is clear that a will has been admitted to probate, or even admitted in evidence although not admitted to probate, when more than 30 years have elapsed since the death of the testator, in any jurisdiction, either in England or America; and but slight assistance can be derived, in any event, from cases decided in other jurisdictions, seeing that the methods of dealing with wills are so various. There must be a limit beyond which a court would not admit a will to probate, and it should be set at less than 63 years. In determining what limit is reasonable, reference must be had, not merely to the rights of the testator and his representatives and successors, but also to the interest of the community in which his property lay. Rights of property are established and confirmed during the lapse of 63 years. Transfers have occurred; new rights have arisen. To destroy these would be to inflict hardships and essential injustice. Unless some such limit, as that for which the appellant contends, is fixed by law, titles to real estate are absolutely insecure. Statutes, in effect, declaratory of the principle of law for which the appellant contends, have been enacted in certain states. In Maine, after 20 years from the death of a person, no probate of his last will can be originally granted. Rev.St. c. 64, § 1. In Connecticut a limit of 10 years is imposed. Gen.St. Revision of 1875, c. 11, § 11. The jury should have been instructed that, in determining the question whether or not Sarah Pendergast executed the paper purporting to be a will, she had legal capacity to make a will devising land; they had no right to consider, as evidence of such capacity, the fact that she executed the paper. The rule which permits the contents of a will to be evidence, bearing upon the capacity of the testator, throws no light on the present inquiry. In the case at bar, the act done is considered, not with reference to its nature, but merely with reference to its existence. All persons are presumed to know the law. This may be a convenient presumption in order to enforce personal responsibility; but the presumption is much more violent, and quite unfounded, that all persons do only legal acts because they know the law. The present case is that of a woman presumably unskilled in the law, according to common experience. The appellant submits that no presumption of any sort arises; and that the jury should have been instructed that the fact that a paper was executed had no tendency to show that its maker had legal capacity to execute it.
B.F. Butler and P. Webster, for appellee.
The rule which governs is statutory, and is found in Pub.St. c. 156, § 6. The railroad claims by titles from others, not devisees under the will; and while the probate of the will may affect its rights, yet it would seem that its redress is from its grantors, as in ordinary cases as between grantors and grantees, and not as a party aggrieved under an order made by the judge of probate. The fact that the will is so old does not, of itself, bar the right of the parties interested in it to prove it in probate, so far as it affects real estate. The devisees under the will desire to establish their title to this real estate. The rule which governs is, "If a will can be found, it may be proved in the probate court at any time, in order to establish a title to real estate." Shumway v. Holbrook, 1 Pick. 117; Waters v. Stickney, 12 Allen, 13. The fact that the witnesses to a will are all dead does not preclude the party propounding the will from proving it in some other manner. The evidence, as to the witness, is that he was dead, and that diligent search had been made, without success, to find some one who could identify his signature. See McKenire v. Fraser, 9 Ves. 5; Cunliffe v. Sefton, 2 East, 183; Chase v. Lincoln, 3 Mass. 236. When none of the attesting witnesses can be examined, "there seems to be no reason why the rules of law, which admit of evidence of an inferior character in relation to deeds and other instruments, should not be applicable to a will as to a deed or bond, provided the formalities required by the statutes appear to have been observed." Sears v. Dillingham, 12 Mass. 361; Gelott v. Goodspeed, 8 Cush. 411. The law recognizes a conclusive presumption in favor of the due execution of ancient wills and deeds. The rule is founded "on the great difficulty, nay, impossibility, of proving the handwriting of the party after such a lapse of time. Wynne v. Tyrwhitt, 4 Barn & Ald. 377, and cases cited; Ely v. Stewart, 2 Atk. 44; Tayl.Ev. §§ 87, 88; Winn v. Paterson, 9 Pet. 674, 675; Bank v. Dandridge, 12 Wheat. 70, 71; Northorpe v. Wright, 24 Wend. 221, 228; King v. Little, 1 Cush. 436. But it must appear that the instrument comes from such custody as to afford a reasonable presumption in favor of its genuineness. Doe v. Samples, 8 Adol. & E. 151; Roe v. Rawlings, 7 East, 291; Doe v. Pearce, 2 Moody & R. 240. The jury were authorized to find as they did, taking the recitals in the deed as matters of reputation, that, among others, Sarah Pendergast was a widow. The deed which was put in evidence was an original deed. Tayl.Ev. § 651; Doe v. Skinner, 3 Exch. 84; Doe v. Wittcomb, 6 Exch. 605. The jury having found her to be in a condition of widowhood at the date of receiving the deed as a widow, and under which she acted as a widow, had the right to presume that the condition of widowhood continued, in accordance with experience in human affairs, unless evidence was submitted by the appellant to control the presumption. This is founded on the experienced continuance, or immutability for a longer or shorter period of human affairs. 1 Greenl.Ev. § 41; Tayl.Ev. § 196; Blandy v. De Burgh, 6 C.B. 630; Price v. Price, 16 Mees. & W. 232-242; Scales v. Key, 11 Adol. & E. 819; Rex v. Lilleshall, 7 Q.B. 158; Rex v. Tanner, 1 Esp. 306; Rex v. Budd, 5 Esp. 230; Pickett v. Packham, L.R. 4 Ch. 190. The fact that she allowed herself to be styled a widow in the deed is conclusive on that point, when uncontradicted. 1 Greenl.Ev. § 211; Tayl.Ev. §§ 97, 858; Doe v. Stone, 3 C.B. 176; Loring v. Steineman, 1 Metc. 204; Newman v. Jenkins, 10 Pick. 515. For the purpose of determining the legal rights of persons, the courts conclusively presume that every sane person above the age of 14 is acquainted with the common as well as the statute law of the land. Russ. Crimes, *25; 1 Hale, P.C. 42; Tayl.Ev. § 80; Haven v. Foster, 9 Pick. 112. The jury could not have done otherwise than consider the fact that what Sarah Pendergast did was done by her with full knowledge of the law, and of her legal capacity under it.
OPINION
The first question discussed by the appellant is whether the probate court has authority, as matter of law, to admit a will to probate 63 years after the death of the testator and, incidentally, whether there is any limit of time after the death of the testator, subsequent to which the court has no such authority. In Shumway v. Holbrook, 1 Pick. 117, the question was whether a will not admitted to probate was admissible in evidence. It was held that it was not; but it is said: ...
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