Cuthbertson's Appeal ( 1881 )

Chief Justice Sharswood

delivered the opinion of the court, February 14 th 1881.

Boyd v. Boyd, 16 P. F. Smith 283, established a general principle of the highest importance for the protection of persons who call in professional or other advisers to assist them in making their last wills. That principle may be briefly stated thus : Where the alleged testator is shown by evidence to be weak in mind, whether arising from age, bodily infirmity, great sorrow, or other cause tending to produce such weakness, though not sufficient to create testamentary incapacity, and the person whose advice has been sought and taken receives a large benefit under the instrument propounded as a will, it must be shown affirmatively that the alleged testator had full understanding of the nature of the disposition contained in it. The general rule undoubtedly is that testamentary capacity and knowledge of the disposition made are presumed. Where the testamentary capacity is perfect, fraud or undue influence must be shown. In such case the undue influence must be such as to destroy the freedom of will of the party, or at least very much to impair it. But not so in the case of an old, infirm and mentally weak man, disposing of his estate in favor of his confidential adviser. These principles were all affirmed ana recognised in Frew v. Clarke, 30 P. F. Smith 170. That case did not in the least shake the principle of Boyd v. Boyd, which was fully supported by the authorities, and is founded on sound principle and the wisest policy. Wills are generally prepared according to instructions given to the scrivener privately, when no one else is present; and to hold that in the case supposed it is sufficient to prove the formal execution of the paper in the presence of witnesses, and then throw upon the contestants the burden of proving fraud, undue influence, misrepresentation or mistake, would open the door wide for the arts of the cunning and designing to succeed in their nefarious purposes. Every man who draws a will in his own favor, under such circumstances, should know that he will be required to prove affirmatively all the circumstances connected with the drawing of the will, and that it must appear that the alleged testator was laboring under no mistaken apprehension as to the value of his property and the amount he was giving to his confidential adviser. It has been decided that the beneficiary himself is a competent witness to 'prove the will. ■ He cannot complain, then, that the rule is hard or unjust which requires him to make it clearly appear that the gift to him was the free, intelligent act of the testator. In truth, we were not called on in Erew v. Clarke to re-examine the decision in Boyd v. Boyd. In the latter case it was held merely that upon the evidence there given the judge below was right in submitting the case to the jury. In Frew v. Clarke, upon the trial of the issue of devisavit vel non below, the question had been submitted to the jury, and the verdict sustained the instrument propounded as a will. Mr. Justice Mercur says, in the opinion of the court delivered by him: “ If the mental capacity of McCully (the testator) had been impaired, if he had become weak from age or bodily infirmity, although not to such an extent as to destroy his testamentary capacity, it might have shifted the burden of proof, and required the defendant in error (the legatee) to negative by evidence a presumption of undue influence. It is shown, however, that McCully’s mental capacity was not impaired.” Of course, upon the principle of Boyd v. Boyd, the judgment of the court below had to be afiirmed. There were other questions in the case. Whether the paper propounded was a will or an obligation sealed and delivered inter partes, and whether, conceding it to be testamentary, Clarke, the legatee., was a competent witness to prove it. Upon these questions the court was divided, but not upon the general principle settled in Boyd v, Boyd.

We consider that the case presented on these appeals is entirely within that principle. Had the only question been on the testamentary capacity of John L. Neill there would be reason to hold that there was not sufficient evidence to justify a jury in setting aside the codicil. Had it been drawn without advice and suggestion by Neill himself, as was the original will, it must have stood. But it cannot be disputed that there was evidence, we think enough to carry the case to a jury, that the testator was not the same man physically and intellectually when he executed the codicil as when he made the original will. A jury might reasonably so conclude from the evidence. Then the onus was thrown on Yardley to prove that Neill fully understood the value of his property and the probable residue after paying all his legacies. It would not be proper for us to express any opinion upon the weight of the evidence as bearing upon this question. Upon the issue to be granted, it must be submitted to a jury under proper instructions from the court.

There may be a case where the alleged undue influence is applicable only to a single independent provision in a will, and that provision may fail, leaving the rest of the will to stand. It is certainly not this case, where the clause objected to is a residue, and that residue made up or largely increased by alterations made, as a jury may conclude, under the same influence for that purpose. It may be, however, that if the bequest of the residue in the codicil fail and the rest stands, the general direction of the will in the fourteenth item will apply to the legacies in the codicil as taking the place merely of the legacies from item 20 up to item 39 in the original will. Upon this point we express no opinion. In either case the appellants have an interest to contest the codicil.

Decree reversed. And it is ordered and decreed that the issue prayed for in the court below be granted, and the record remitted fijr further proceedings.