Shaver v. McCarthy

• Decision Date: 05 October 1885
• Docket Number: 247
• Citation: 110 Pa. 339,5 A. 614
• Parties: Shaver et al. v. McCarthy
• Court: Pennsylvania Supreme Court

5 A. 614

110 Pa. 339

Shaver et al. v. McCarthy

No. 247

Supreme Court of Pennsylvania

October 5, 1885

Argued May 29, 1885

ERROR to the Court of Common Pleas of Huntingdon county: Of January Term 1884, No. 247.

This was an issue certified to the said court by the Orphans' court of said county to try (1) whether a certain writing dated December 6th, 1881, was the last will of Peter Shaver deceased, and (2) whether the said Peter Shaver was, at the time of signing said paper, of sound and disposing mind. In this issue A. R. McCarthy, who was named as executor in the alleged will, was plaintiff and Jacob K. Shaver and others contestants, were defendants.

On the trial, before HOY, P.J., plaintiff called W. A. Hunter and George W. Lukens, the subscribing witnesses, and they proved the due execution of the will and testified that at the time of signing the will Peter Shaver was of sound and disposing mind. Plaintiff then offered in evidence the alleged will. Defendants objected (1) because it was not proven, (2) because there were erasures and interlineations, that were not noted in the attestation nor explained by the subscribing witnesses. Objections overruled and will admitted in evidence. Exception. (Eighth assignment of error.)

Defendants offered to prove a conversation of the widow of decedent in which she said that he was not fit to attend to business and that he talked of turning it over to other persons; also conversations in which she said that Peter Shaver was not fit to make a will. Objected to by plaintiff. Objections sustained. Exceptions. (Assignments of error eleven to thirteen inclusive.) Defendants further offered to prove by two of the beneficiaries under the will, declarations of parties that Peter Shaver was of unsound mind at the time of making the will. Objected to by plaintiff on the ground that declarations of legatees will not be received in evidence against their colegatees. Objection sustained and evidence excluded. Exception. (Twenty-fourth assignment of error.)

After Hurtzman, a witness called by defendants, had testified that he had known decedent for some years and that on one occasion in the spring before his death he did not seem to recognize witness when he spoke to him, counsel for defendants proposed to ask witness what conclusion he drew from Shaver's conduct on that occasion as to the state of his mind. Objected to by plaintiff. Objection sustained and question excluded. (Fourteenth assignment of error.)

The other evidence to prove decedent's unsoundness of mind was that he sometimes acted foolishly and did not know where he was, that he sometimes failed to recognize his acquaintances, that he was childish and acted foolishly at the table, that he was blasphemous and at times was improperly clothed. No witness however testified to his making a bad bargain or that he had squandered any money.

Plaintiff called in rebuttal some seven witnesses, all of whom testified to having had business relations with Shaver, and when asked as to their opinion of Shaver's capacity to make a will, defendants objected. Objections overruled and evidence admitted. Exceptions. (Assignments of error fifteen to nineteen inclusive and twenty-one.)

H. E. Shaffer, the attorney who drew the will, produced a number of receipts and business transactions showing Shaver's capacity for business, and testified that he was competent to make a will.

It appeared that when the will was written decedent's son, Derrick, was with him and received a larger legacy than any of the other children, and that on the morning of the death of Shaver, Derrick hastened to the office of the Register of Wills and had the will probated within a few hours after the death of his father. From these facts defendants requested the court to charge that there was a conspiracy to get up this will. This was refused, the court saying: "There must be some evidence of a conspiracy before it can be asked to say that it is proved. It is a serious charge to make against a reputable citizen. That there was a conspiracy in this case we do not know. But it is plain that Dr. McCarthy was made plaintiff by the court. He is not bound to contest this will if he does not choose to do so, but the court has made him party plaintiff in this issue, because he was the executor named in the will. There is nothing about his appearance that would strike a stranger to him, with the idea that he was a man of bad character and capable of entering into a conspiracy. If his testimony is to believed he had nothing to do with the making of the will at all. In his testimony he stated that Peter Shaver had frequently spoken to him about making a will and asked him to write it, and he gave his reasons why he finally declined to do so; that he intended to write his will or had agreed to write it, but before he had done so, certain things occurred, and according to his own testimony he declined after these things had occurred, to write the will, and he so informed Peter Shaver. Now, if that evidence is to be believed, and there is no contradiction of it, that we recollect of, then he had nothing at all to do with the making of the will. The fact that he was made executor, would not of itself sustain the charge of conspiracy. It appears that he knew nothing of that until after the will was drawn up and executed, when he heard it from others. The charge that Dr. McCarthy entered into a conspiracy of so grave a character as this, seems to us to be more than the evidence warrants, and we feel bound to say to you that no charge of conspiracy to defraud can be sustained on the evidence here presented on that point, and we instruct the jury to find against a conspiracy in this case. We would not permit a verdict convicting any one of conspiracy to stand on such evidence as is asked for a conviction of that crime in this case." (Eight assignment of error.)

The court charged, inter alia, as follows: "If H. E. Shaffer, who drew up this will, testified to the truth, then Peter Shaver the testator understood exactly what he was doing, and what property he had and what disposition he wished to make of his property, and he knew of all his children, because all his offspring, -- his children and grandchildren are named in the will and all are given something. If the facts to which Mr. Shaffer testifies be true, of his counting up the value of certain property, summing up what it all would amount to, if he did this according to Mr. Shaffer's testimony, he knew exactly what he had and what disposition he desired to make of it. And if all the things to which Mr. H. E. Shaffer has testified be true, we say to you there can be no question about the testator, Peter Shaver, having sufficient testamentary capacity to make a will. Now, that is a fact for you to determine, whether he told the truth, or whether he told an untruth; did he testify truthfully or falsely, this you must determine from the evidence in the case. . . .

"The defendants have called a large number of witnesses who have testified to facts which go to show that at times this man Peter Shaver, acted with a great deal of levity and probably sometimes he acted indiscreetly, and it is in testimony that he was an erratic and peculiar man, in his ways and habits, and the witnesses from these facts have given it as their opinion on the part of the defendants that he was not capable of making a will. One or two of the most intelligent witnesses, as it struck us, when the question was put to them, would not say that he was crazy, but gave it as their opinion that he was not capable of making a will.

"The opinions of these witnesses are of very little account. You are to form your own opinions on the subject, you are to consider the facts upon which they base their opinions and which they have detailed in your hearing. In the expression of the Supreme Court, where it states, if he has a full and intelligent knowledge of the act that he is engaged in, then he is competent to make a will. If we understand the doctrine as laid down by Judge TRUNKEY in that portion of the opinion which we read in your hearing, then the testimony of at least these two of defendants' witnesses, who would not testify that he was crazy, amounts to nothing, their opinion that he was not competent to make a will amounts to nothing, because if they had had sufficient facts to convince them that he was crazy they would have so testified no doubt, and it then would have been evidence for you to have considered in determining whether or not he was crazy. But if you believe that he was crazy, that from any cause he was enfeebled in mind, that he did not know what he was doing on the 6th day of December, 1881, when he made this will, then of course you must find against the plaintiff and against the will, and in favor of the defendants. But do the facts which they have given in evidence so satisfy you, gentlemen of the jury, -- do they satisfy you that this man was crazy? Now it strikes us, and the Supreme Court has said in a number of cases, that in all cases where a question of law arises it is the duty of the court to instruct the jury on such points and the jury are bound by such instructions, and that the court can also express their opinion as to the facts proved in the case without it being binding upon the jury, that is, what the court says to you is the law is binding upon you, but what he says about the facts proved in the case is not, and what we now say to you as to the facts proved in this case, we do not mean shall be binding upon you, if you do not agree with us on this point. We say to you, gentlemen of the jury, that after hearing all of the evidence adduced on the part of the defendants going to show that Peter Shaver, the testator named in this will, was of...