Titlow v. Titlow , 1867 Pa. LEXIS 96 ( 1867 )

The opinion of the court was delivered, by

Strong, J.

The principal questions submitted to the jury in this case were whether Abraham Titlow was of sound mind on the 18th of July, on the 4th of August and on the 11th of August 1863, when the alleged will and codicils were made, and whether those instruments were made under the pressure of undue influence. By inquisition taken in 1864 he was found a lunatic, and found to have been such from the 25th day of June 1863, but with lucid intervals. On the trial, the defendants below, now plaintiffs in error, in order to show either mental unsoundness or undue influence, or both, at the time when the will was made, offered to prove that in March 1863, the testator had given instructions for the preparation of a will, making a very different disposition of his property from that made by the will in controversy ; that a will was then prepared in harmony with such instructions and given to him ; and that he assigned reasons for the testamentary disposition he then proposed. This offer the court overx-uled, and herein we think there was error.

The declarations offered were made some two months before the established lunacy, and they show a testamentary intent quite different from that which is manifested in the papers made in the July and August following. The presumption is that in March 1863 the testator -was compos mentis. But some cause produced a radical change in his purposes and testamentary plans. Is not the variance between his intentions in March and his intentions in July to be considered when the inquiry is what was his mental condition at the last-mentioned date ? 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, it is a circumstance that may be adduced in aid of the inquiry. That such evidence is admissible is asserted by the authorities almost with- ■ out exception, and very often in this state. It will suffice merely to refer to a few: Heister v. Lynch, 1 Yeates 108; Starrett v. Douglass, 2 Id. 46 ; Irish v. Smith, 8 S. & R. 573; Norris v. Sheppard, 8 Harris 475. The 1st assignment' of error must therefore be sustained. ■

The second assignment has less merit. It could have had no legitimate bearing upon the question whether the testator was sane in July 1863, or free from constraint in making his will, that he had frequently said within ten years preceding his death that he liked his brother Joseph better than his other relations.

But we think the court erred in excluding Christiana Drum from testifying bee; ; she was named as a legatee in a testamentary paper purporting to have been made by the testator on the 30th of May 1863. That did not show a certain interest either in the event of this suit or in the record. At most hers was but a contingent interest. The defeat of the probate of the paper of July did not establish as a will the paper of May. Had the verdict been for the defendants it could not have been used to support any former testamentary disposition. In no way, therefore, was the offered witness implicated in the legal consequences of any judgment that could be rendered in this case.

The declarations of David Titlow, offered to be proved by George Thomas, were properly rejected. True, he was the jDlaintiff in the feigned issue, but he was such only as a representative of those claiming interest under the will. His own interest was less than he would have taken under the intestate laws. There is then no reason why his declarations or admissions made, not while he was plaintiff, not even at the time when the alleged will was made, but at a time prior thereto, should be allowed to affect the decision of the question whether the instrument was a will.

The 5th assignment of error is hardly debateable under the practice in this state. It is settled with us that after proof of the execution of a will by the subscribing witnesses, a plaintiff who sustains a will may rest, on the prima facies of his case, and until the will has been assailed before he calls witnesses to sustain the competency of the testator. It is competent to recall subscribing witnesses for such a purpose. The ruling of the court to which this exception was taken accords with every day-practice, and it is reasonable.

We are also of opinion that no error is shown in the 6th assignment. The evidence was properly received at the time it was offered, and if it were not the ruling of the court in regard to the order of evidence is not assignable for error.

The 7th assignment is not sustained. • The witness, when he gave his opinion, had detailed the conversations he had with the testator. It was in view of them and with reference to them his opinion was given. There is undoubtedly a difference between the admissibility of opinion of subscribing witnesses to a will and those of persons not subscribing witnesses. The former may be given in evidence without the facts upon which they are founded. The latter may not. But when the subscribing witnesses have testified to facts and circumstances upon which their opinions ar» grounded, the opinions themselves may be placed before the jury, who, having a knowledge of their groundwork, can judge of their value: Brickner v. Lightner, Exec’r, 4 Wright 199; Gibson v. Gibson, 9 Yerg. 329; Dunham’s Appeal, 27 Conn. 192 ; Crane v. Northfield, 33 Vt. 124. If what we have said in regard to the 5th assignment of error be correct there is no foundation for the 8th. , ,.p

Nor is there any for the 9th. That such decL.jíion were proper to be admitted we have shown in our remarks upon the 1st assignment: see Neel v. Potter, 4 Wright 483.

The 10th and 11th assignments are also not sustained. The evidence admitted tends to show that when the declarations were made the testator had similar impressions to those which were upon his mind on the 18th of July -1863. It had therefore some bearing upon the questions, what was the state of his mind on that day, and whether he had in fact been unduly influenced in favor of Mrs. Schuyler. . ,y

It was error, however, to exclude George Titlow from testifying because of his being named as a legatee in the paper dated May 30th 1863. What we have said in regard to the competency of Christiana Drum applies equally to the 12th assignment of error.

We dismiss the 13th assignment with the remark that we do not perceive how the testimony offered tended to contradict the witness David H. Schuyler.

The two remaining assignments may be considered together. The plaintiffs in error requested the court to charge the jury 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, and also, that a lunatic has no power to pass his estate in land immediately by conveyance or mediately by will; and that after 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. These propositions the court refused to affirm, and we think correctly. The general principle is, that an inquisition of lunacy found is primá. facie evidence in cases involving the sanity of the lunatic, and no more; sucli is the doctrine of all our cases. Peculiar effect is sought to be attributed to the inquisition upon Abraham Titlow, because David Titlow, the executor named in the paper of July 18th 1863, was the party who promoted it. He signed the petition for an inquest, and he was subsequently appointed the committee of the lunatic. It is not perceived that this can make any difference in the legal effects of the inquisition. But suppose it were conclusive upon David Titlow, would that establish that Abraham Titlow could not make a will on the 18th of July ? The inquisition can be conclusive only of that which was found by it. Abraham was found a lunatic, with lucid intervals. His ordinary condition was thus ascertained to be that of lunacy, but the inquisition found there were times when he was not a lunatic. It was enough to throw upon those who asserted his competency to make a will on the 18th of July 1863, the burden of showing it affirmatively, but it did not ascertain insanity on that day — even as against Abraham himself. How could it then as against any one else ? See Harden v. Hays, 9 Barr 151; also Gangwere’s Estate, 2 Harris 417. In the latter of these cases it was distinctly ruled that an inquisition of lunacy, finding the party a lunatic without lucid intervals, was primé facie evidence only, and not conclusive, and a petitioner for the proceeding was not estopped from asserting the truth against it, and showing that the party had lucid intervals. See also Hutchinson v. Sandt, 4 Rawle 234. Much more is a petitioner for an inquest not estopped, by an inquisition finding lunacy but with lucid intervals, from asserting the existence of such intervals. There was no error, then, in the court’s refusal to affirm the points mentioned.

But as the 1st, 3d and 12th assignments of error are sustained, a new venire is ordered.

Judgment reversed, and a venire de novo awarded.