Grubbs v. McDonald , 1879 Pa. LEXIS 328 ( 1879 )

Mr. Justice Gordon

delivered the opinion of the court,

It is always better for the court to put a case to the jury on the evidence generally, rather than upon the testimony of one or more witnesses selected from the whole number sworn during trial. Such selection tends to make the case turn upon the credibility of the witnesses named, and upon a partial view of the evidence, both of which tend to weaken or exclude other testimony and circumstances of the case which should be considered.

Complaint is made that the court below, in the trial of the case in hand, fell into this error. The court, adopting the proponents’ eighth point say : “ The testimony as to the physical and mental condition of John Grubbs, before and after the execution of the will, and the testimony as to John Grubbs’s previous statements of the way in which he proposed to dispose of his property, becomes entirely immaterial and irrelevant if the jury believe John F. McDonald, John and Samuel Wallace.”

It would certainly have been better to have said, if, from the evidence, you believe that at the time of the making and execution of the will, John Grubbs was possessed of a sound mind and disposing memory, his previous and subsequent condition are not to be considered; nevertheless, on a careful examination of the evidence, we are not prepared to say that the court in the instructions, as above set forth, committed any serious error.

The testimony of McDonald and the two Wallaces, who were neighbors, without either interest or prejudice, is very explicit and clear, and, especially, when considered in connection with the evidence of the attending physician, does establish, beyond a peradventure, the testamentary capacity of John Grubbs, and if believed, as it seems to have been, the jury could do no otherwise than find for the proponents. On the other hand, the learned judge fairly submitted the testimony produced by the contestants, and left the jui’y to say whether or not, at the time of the making of the will, John Grubbs had testamentary capacity. On the whole we think no injury was worked to the defendants in the disposition of this part of the case. Neither do we discover error in any other of the court’s rulings. It is true, complaint is made, in the third and fourth assignments, that the burden of proof was thrown upon the contestants to prove want of testamentary capacity, and that the court told the jury that if, in weighing the evidence, they thought it doubtful or balanced, they ought to incline in favor of disposing ability. But what else could the court do under the rule as laid down in Landis v. Landis, 1 Grant 248, and in many other authorities, that “the law presumes every one of full age competent to make a will, of sufficient mental capacity to do the act; and allegations to the contrary must be proved.” Testamentary capacity is the normal condition of one of full age, and the affirmative is with him who undertakes to call it in question, and this affirmative he must establish, not in a doubtful, but in a positive manner. So complaint is made of the court in saying to the jury that there was no evidence that undue influence had been used with John Grubbs in the making of his will. This, however, was only the fact of the case; indeed the very contrary appears. Frank and Reed, if we credit the testimony of Dunlap and Huddle, could not muster courage to propound their desires with reference to the property to their father personally, but asked these persons to suggest the matter for them. This they did in a very cautious manner, and nothing came of it. The old man seems to have had a very positive will of his' own, and manifested a disposition to exercise it in strict accordance with his own ideas.

Finally, we notice the objection to the will itself as evidence; it was said to be altered in a material manner, after its execution by Grubbs, and in this manner its effect as a testamentary paper destroyed. This is an extraordinary proposition, for a will, unlike a deed, has but a single party, and the only thing to ascertain is what that party desired concerning the disposition of his property. The idea, therefore, that any one, by unwarranted interpolations or alterations, could defeat such will, is certainly novel. We might indeed, imagine a case where the mutilation or alteration of a testament was so great as to render it impossible to say what the will of the testator had been, and, so, as evidence of such will the paper would be worthless. Such, however, is not the case in hand. The will, as produced, is found to have the name John Grubbs, with his mark, appended thereto; over and below the mark, in the ordinary-manner appear the words “ his markthere is also a seal attached. These last, that is, the words “his mark” and the seal, are the alterations complained of. They were made by McDonald under the supposition that they were parts of a necessary legal form, found in his form book, and so, in his simplicity he added them. It will be seen, however, that these additions are wholly immaterial. The will, without them, was well executed under the Act of Assembly, and they certainly do not obscure the .intent of the testator or render doubtful the intended disposition of his property.

We conclude. this case was well and properly tried, and must be affirmed; accordingly the judgment is now affirmed.