Wilkinson v. Pearson

• Decision Date: 16 May 1854
• Parties: Wilkinson <I>versus</I> Pearson.
• Court: Pennsylvania Supreme Court

23 Pa. 117

Wilkinson versus Pearson.

Supreme Court of Pennsylvania.

May 16, 1854.

ERROR to the Common Pleas of Bucks county.

E. J. Fox, for plaintiff in error.—The capacity of a testator is to be judged of by his acts: Shelford on Lun., 2 Law Lib. 277; 3 Whar. 137; 7 Ser. & R. 92.

As to the 4th assignment, reference was made to 1 Jones 429,

Irvin v. Nixon. In a former ejectment between these parties, grounded on the same cause of action, a verdict was rendered in favor of the defendant on 18th November, 1843. In 1844, the judgment was affirmed. This action was brought in April, 1851. Valuable improvements were made since that verdict, some as late as in 1850.

Du Bois, with whom was Michener, for defendant in error.— The declarations of the grantor were not the only evidence of imbecility. They were but cumulative evidence: 8 Ser. & R. 579, Irish v. Smith. The appearance of the party may be shown. The opinion of ROGERS, J., 2 Jones 31, was referred to, as to this point, by the Court below.

The opinion of the Court was delivered, May 16, by KNOX, J.

The question at issue was whether Joseph Wilkinson was capable of making a conveyance of his land on the 2d day of March, A. D. 1838. The plaintiff below, a daughter of the grantor, alleged his incompetency, from weakness of intellect and imbecility of mind.

After giving evidence, the tendency of which was to establish her allegation, she offered to prove that her father had said, in 1835, that his son Joseph P. Wilkinson (the defendant), by himself and his mother-in-law, had importuned him to make Joseph a deed for the place, but that he was determined never to do so, or to make a will, as the law would make a better will than he was able to make. This evidence was received under an exception, which forms the 1st assignment of error. It is clear that these declarations would not, standing alone, prove incapacity; on the contrary, they would rather show capacity, and a determination not to be influenced by the solicitations of others. I do not understand that the object of this evidence was to prove weakness of intellect at the time the declarations were made; but to show that, when the intellect was unimpaired, the expressed intention was directly adverse to the disposition afterwards made, and from this, to raise the inference of incapacity at the time when the deed was made. For this purpose it was properly received. The same species of evidence was admitted in Irish v. Smith, 8 Ser. & R. 579, Chief Justice TILGHMAN...