Titlow v. Titlow
| Decision Date | 14 February 1867 |
| Citation | 54 Pa. 216 |
| Parties | Titlow v. Titlow. |
| Court | Pennsylvania Supreme Court |
February 4, 1867
1. A testator was found to be a lunatic with lucid intervals and after the finding made a will; in a feigned issue on this will, instructions given by him a short time before he was found lunatic, for another will, which was drawn accordingly and which was different from that in dispute, were proper evidence.
2. A change of intention is of no importance if there be a sound mind unconstrained, but when the question is whether there be such a mind, such change may be adduced to aid the inquiry.
3. Frequent declarations of the testator within ten years before his death, that he liked a brother better than his other relations, are not evidence on the question of sanity.
4. A legatee under a will immediately preceding that in contest is a competent witness against the latter will.
5. Declarations of the executor, who was also plaintiff in the issue, and whose interest under the will was less than under the intestate laws,--made before the will was made, are not evidence against the will.
6. A subscribing witness who has been examined to the execution of the will, may be examined in rebuttal on the competency of the testator.
7. A subscribing witness may give his opinion of the testator's capacity without the facts on which it is founded,--other witnesses may not; but after they have testified to the facts, their opinions may be placed before the jury.
8. An inquisition of lunacy found is prima facie evidence only.
9. A finding of lunacy with lucid intervals casts the burden of showing sanity on those sustaining the will.
Before WOODWARD, C. J., THOMPSON, STRONG and READ, JJ.
AGNEW J., at Nisi Prius.
Error to the Court of Common Pleas of Philadelphia.
In the court below this was a feigned issue, directed by the Register's Court, to try whether certain paper writings were the will of Abraham Titlow, deceased.
The papers were a will dated July 18th, a codicil dated August 4th, and a codicil dated August 11th 1863.
They were admitted to probate by the register on the 25th of June 1864, and letters testamentary granted to David Titlow, the executor named in the will.
The will gave to his niece, Alcenia Schuyler, $6000, and a mortgage of $1000, the residue of his estate, to be distributed under the intestate laws.
The first codicil directed that his executor should hold his estate in trust for five years, divide the income annually amongst his heirs, and at the end of five years sell and divide his estate as directed in his will.
In his second codicil he directed the sale and division to take place at any time after a year and a day from his death.
There was another will, dated May 30th 1863, offered to the register for probate, but not admitted. On the trial its execution was proved, and it was received in evidence.
Joseph Titlow and John Titlow, brothers, and Hannah Fisher, a sister, appealed July 5th 1864 to the Register's Court in which an issue was directed, December 3d 1864, between David Titlow, plaintiff, and John and Joseph Titlow and Hannah Fisher, defendants.
The case came on for trial in the Common Pleas, April 30th 1866 before Pierce, J.
The plaintiff, having proved the execution of the will, rested.
The defendants then gave in evidence proceedings in lunacy on Abraham Titlow, instituted November 21st 1863, on the petition of David Titlow. The inquisition finding lunacy with lucid intervals, from June 25th 1863, was returned March 16th 1864, and David Titlow was appointed one of the committee.
The defendants offered to prove by a witness whom they called " that in March 1863 Abraham Titlow requested witness to draw his will, devising 20 acres of his land to his brother Joseph, and the remaining 14 to his nephews and nieces, excepting David Titlow and his children; and that he then stated, that he would give nothing to John, because he was well enough off, and that he would give nothing to David or his family, because when he was in want of help he declined to help him; and that the witness did draw such a will and give it to Abraham Titlow; and further, that when witness asked Abraham why he gave to Joseph so much, he stated Joseph was the poorest, and had a large family." The court rejected the offer, and an exception was taken.
The defendants then called Christiana Drum and George Titlow, legatees under the will of May 30th 1863, who were objected to as incompetent, rejected and exception taken.
The defendants offered to prove by a witness, " That in frequent conversations with Abraham for a period of ten years preceding his death, Abraham always said he liked Joseph the best."
The offer was rejected and an exception taken.
A witness having stated that he had conversations with David Titlow in July 1863, about the sanity of Abraham; the defendants offered to prove the conversations of David at that time and his statements as to the disposition to be made of the said Abraham, said conversations and statements being his opinion upon the sanity of Abraham Titlow at that time.
The offer was rejected and an exception taken.
The plaintiffs in rebuttal called Dr. Sidney R. Morris, who was a subscribing witness to the will, and had been examined in chief to prove its execution. He was asked to testify as to the general sanity of the testator. This was objected to by the defendants as being evidence which should have been given in chief, but was admitted and an exception taken.
The plaintiffs offered to prove that on the 14th or 15th of July 1863, the testator said to David he wished him to be his executor; that he said he ought to get John to act, as he was the eldest; that the testator said John would not act; that John was sent for and declined; that the testator handed David a paper (hereafter given) dated May 4th 1861, and told him to have a will drawn according to that paper, and the balance as the law allows, and put himself in as executor. This offer was objected to by the defendants, admitted and an exception taken.
A witness for the plaintiff in his testimony detailed conversations he had had with the testator, and then said of the testator, " he was then just as rational as any man could be." The defendants moved to strike out this expression.
The motion was overruled and an exception taken.
The plaintiff offered to prove " that testator said to the witness two days after the execution of the will, that he had made his will, and that he stated the contents of it to him; and that he subsequently stated to witness that he intended to make a codicil so that the property could not be sold for five years; and subsequently, that he meant to give David Titlow the right to sell it if he chose."
The defendants objected; but the evidence was admitted and an exception taken.
This is to Certify that I give bequeath to Philip S. Schuyler, Junr., undertaker, 19th Ward, six thousand dollars, lawful money, to be paid to him or his heirs or assigns after my discease, allso the Morgage that I hold against his property for one thousand dollars to be released to the said Philip R. Schuyler, Junr., his heirs and assigns forever. Sined by me on the fourth day of May in the year of ower Lord one thousand eight hundred sixty-one.
| 7,000. | ABRAH. TITLOW, his [SEAL]." |
This was received against the defendants' objection and an exception taken.
The plaintiff offered to prove " the declarations of testator of good will to the Schuyler family, showing an uniform intention to dispose of his property in the manner he did dispose of it by will; " and " that testator at the time of making his will had poor nieces, as he said he had, who are provided for as he said they were by his will."
The offers were severally objected to by the defendants, admitted and exception taken.
The defendants in surrebuttal for the purpose of contradicting David H. Schuyler, one of the plaintiff's witnesses, offered evidence that the plaintiff had once brought the testator back when he had gone out.
The offer was rejected and an exception taken.
The defendants requested the court to charge:--
1. That David Titlow is bound conclusively by the finding of the inquisition, he having promoted it, submitted to it and accepted the office of committee founded thereon:
2. That a lunatic has no power to pass his estate in land immediately by conveyance, or mediately by will, if the lunacy has been established by inquisition. A lucid interval can avail nothing, unless the finding as to lunacy in general has been avoided by due course of law: which the court refused, and an exception was taken.
The jury found for the plaintiff.
The defendants took a writ of error, and assigned for error the rulings on the evidence and the answers to their points.
D. W. Sellers and G. M. Wharton, for plaintiff in error, on the 1st and 2d exceptions cited Heister v. Lynch, 1 Yeates 108; Starrett v. Douglass, 2 Id. 46; Redfield on Wills, ch. 10, §§ 2, 3, 4, p. 525-6, § 39, p. 528; Cartwright v. Cartwright, 1 Phillimore 90; Roberts v. Travick, 17 Ala. 55; Robinson v. Hutchinson, 26 Vt. 38; Waterman v. Whitney, 1 Kernan 157; McTaggart v. Thompson, 2 Harris 149; Rambler v. Tryon, 7 S. & R. 94; Chess v. Chess, 1 Penna. R. 32; Irish v. Smith, 8 S. & R. 573; Moritz v. Brough, 16 Id. 403; Norris v. Sheppard, 8 Harris 476; Kenyon v. Ashbridge, 11 Casey 161; Neel v. Potter, 4 Wright 483; Shay v. Henk, 13 Id. 79.
On the 3d exception, they cited 3 Greenlf. Ev. § 386; Bennett v. Hethington, 16 S. & R. 193; Commonwealth v. Allen, 6 Casey 49; Hatch v. Bartle, 9 Wright 167.
On the 5th exception, they cited Redfield on Wills, ch. 3, § 4; 2...
To continue reading
Request your trial