Tawney v. Long

• Decision Date: 12 October 1874
• Citation: 76 Pa. 106
• Parties: Tawney <I>versus</I> Long and Wife.
• Court: Pennsylvania Supreme Court

76 Pa. 106

Tawney versus Long and Wife.

Supreme Court of Pennsylvania.

May 7, 1874.

October 12, 1874.

May 7th 1874.

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

Error to the Court of Common Pleas of Adams county: Of May Term 1874, No. 64.

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R. G. McCreary, for plaintiff in error.—The declarations of testator may be admissible to show his condition of mind, but not as evidence of the facts declared or stated, unless part of the res gestæ: Greenleaf Ev., sect. 108; Jarman on Wills 77. The declarations proved do not tend to show undue influence operative at the date of the will. The testimony of Henry Long related to a time eighteen months before the will was made, and that of Hannah Long six months before: Eckert v. Flowry, 7 Wright 46; McMahon v. Ryan, 8 Harris 329; Jarman on Wills 37, 41; Thompson v. Kyner, 15 P. F. Smith 368; Moritz v. Brough, 16 S. & R. 403. They proved, at most, only persuasion or importunity, which, when established, do not constitute undue influence such as would avoid a will: Miller v. Miller, 3 S. & R. 267. The statements taken altogether show that the importunity had no effect on testator, and no conclusion of undue influence could be legitimately drawn from them: Evans v. Mengel, 1 Barr 68; Haines v. Stouffer, 10 Id. 363.

There is no other testimony in the case tending to sustain the allegation, and it is distinctly disproved by the plaintiff. It is error to permit the jury to pass upon a matter of which there is no evidence, or to base a verdict on circumstances which do not justify their conclusion: Switland v. Holgate, 8 Watts 385; Sartwell v. Wilcox, 8 Harris 117; Kelly v. Kauffman, 6 Id. 351; Evans v. Mengel, 6 Watts 72; Urkett v. Coryell, 5 W. & S. 85.

W. A. Duncan, for defendants in error.—The decedent's declarations were admissible as circumstances tending to show undue influence: Rambler v. Tryon, 7 S. & R. 90; and although the acts had occurred a length of time previously to the execution of the will: Reeme v. Parthemere, 8 Barr 460; McTaggart v. Thompson, 2 Harris 153; Waterman v. Whitney, 5 N. Y. 165; 1 Redfield on Wills 115, 504, 509; Titlow v. Titlow, 4 P. F. Smith 221. As to the answers to the points he cited Boyd v. Boyd, 16 P. F. Smith 294. As to the sixth error: Eckert v. Flowry, 7 Wright 46; Thompson v. Kyner, 15 P. F. Smith 368; 1 Jarman on Wills; 1 Redfield on Wills 481; Zimmerman v. Zimmerman, 11 Harris 378; Dean v. Negley, 5 Wright 312.

Mr. Justice GORDON delivered the opinion of the court, October 12th 1874.

It is quite probable that in October 1871, the mind of John Bowman was so unsound as to be incapable of properly disposing of his estate by will. At all events there was evidence thereof sufficient to submit to a jury. On this branch of the case the ruling of the court was strictly correct. Not so, however, on that which relates to the question of undue influence, as an operative cause affecting the old man in the disposition of his property.

The evidence offered for this purpose was wholly insufficient, and should have been rejected.

In treating of this branch of the case, we must treat of it as a distinct issue, for if it be found that the testator was of unsound mind, then the question is determined against the will, and we proceed no further; but if on the other hand this question be determined in favor of the testator's testamentary capacity, then, and then only, do we consider the proposition involving the subject of undue influence.

However, then, the fact may be, and that fact is hereafter to be determined by a jury, we must, for the present purpose, treat the case as though the testator's sanity were proved. What then is there in the evidence to show that John E. Tawney improperly influenced John Bowman in the disposition of his property? That he treated the old man, who by marriage was his uncle, with kindness; that he permitted him to remain at his house; that he bailed him and assisted him when sued by his wife and son-in-law, indicates but ordinary acts of friendship, towards a frail old man, rendered necessary from the very circumstances thrown around him by the defendants themselves, but in nothing does it exhibit that corrupt and unlawful influence which amounts to constraint, and which substitutes the will of another for that of the testator. So we have no evidence, except that of Tawney himself, that Bowman ever spoke to him, or he to Bowman, about a will. We give in extenso what he says upon that subject. "The day before we come to town, I had a conversation with the old man about making the will. He told me in front of his room he had been thinking about making his will and fixing his things. He did not know whether he could make a will or not, that if he got like old Mr. Slagle, his property might not reach to keep him. I told him if I was in his place, I would take the good of what I had while I lived, and if there was anything left it was his own, and he could do with it as he pleased."

Again: "After that Bowman called me into the office and told me he had made up his mind to make a will. He...