Jennings v. Pendergast ( 1856 )

Le Grand, C. J.,

delivered the opinion of this court.

We confess we have had great difficulty in coming to a conclusion in this case. The testatrix was ninety-six years of age at the time of the execution of the will in contest. This circumstance standing alone is of great weight, and although not,,per se, conclusive, yet goes far, when the common history of humanity is considered, to induce the belief that the party attaining so advanced an age must be much weakened in mind, if not reduced to that state which the books designate as fatuity. In the case before us the deductions to be made from the fact of extreme old age are strengthened by the peculiar character of the will; it disinherits the only son of the testatrix and eight grand-children, the offspring of two deceased daughters. It makes, in the first instance, none of the blood of the testatrix the object of her bounty, but gives it all to her son-in-law, the appellee, to the exclusion of his wife, her daughter. When is added to these facts the additional one, that a few days before the making of the will, the appellant and only son of the testatrix was confined in jail, on the complaint of some unknown person, for an alleged assault on her, and there remained for some months, and then discharged without trial; and also, that the appellee, the sole beneficiary under the will, procured its preparation by counsel, the caséis certainly surrounded with great suspicion. Did it rest entirely on these facts we would not hesitate to reverse the order of the orphans court. But the conclusions to be drawn from them are rebutted by very positive testimony as to (he mental condition of the testatrix at the time of the execution of the will. All the attesting witnesses state her to have been of sound capacity; one of them, Mr. Whyte, the draftsman of the will testifies, he carefully and slowly read the will to her, and she said it was all right, and that he had not “a doubt upon the face of the earth but chat the testatrix was of sound mind and memory.” Nine oilier witness give the opinion, she was of sound mind at the date of her will, although sometime prior to her death, which occurred two ypars thereafter, she became childish and imbecile. These witnesses are unknown to this court, as are, also, those who prove her imbecility. The credit to be attached to their evidence, in some degree, would depend upon their appearance, and their manner of giving it. We have been deprived of this advantage; the orphans court, enjoyed it, and we cannot be insensible to the value of the conclusions which it enabled them to derive from it. All cases like the present, we think, ought to be pronounced upon by a jury. They would • see the witnesses and be the better able to estimate the amount of credit which ought to be awarded to the testimony of each.

Repeating, were it not for the positive evidence of Mr. Whyte, and others, that we would hold the testatrix to have been incompetent at the time to have made a valid will, and the suspicions surrounding the transaction, yet we cannot feel ourselves justified in reversing the order of the orphans court.

Order affirmed but without costs.