Derr v. Greenawalt , 2 Foster 225 ( 1874 )

Mr. Justice Sharswood

delivered the opinion of the court, July 2d 1874.

The jury having found in favor of this will and against the defences of mental incapacity, undue influence and fraud, we are relieved from the necessity of considering many of the alleged errors, both in the reception and rejection of evidence, and the answers to the points and the instructions of the charge, which relate exclusively to those subjects.

The principal, indeed the only matter of which, in view of the verdict of the jury, this plaintiff in error has any right to complain, is the binding direction given by the court to the jury under the whole evidence, that the residuary bequest to the plaintiff in error must be rejected as not having been legally proved as a part of the will of the testator.

The will was duly proved to have been executed in the presence of the two subscribing witnesses, but with a blank for the name of the residuary legatee. This blank was afterwards filled, and the question presented is whether the act of filling up that blank was so proved by two witüesses as to make it in law a part of the will.

There is no difficulty in regard to the rule of law upon the subject. That has been well settled and repeatedly applied in the prior determinations of this court. It was fully considered and discussed in Carson’s Appeal, 9 P. F. Smith 493, in which the former cases are cited. That principle is well generalized in the language of Mr. Chief Justice Gibson in Hock v. Hock, 6 S. & R. 47: “ Proof of execution must be made by two witnesses, each of whom must separately depose to all facts necessary to complete the chain of evidence, so that no link of it may depend on the credibility of but one. When the evidence is positive there can be no difficulty, for the witnesses then attest the simple fact of execution itself; but where the evidence of one or both is circumstantial, each must make proof complete in itself, so that if the Act of Assembly were out of the question, the case would be well made out by the evidence of either. Circumstantial proof cannot, therefore, be made by two or more witnesses alternating with each other, as to the different parts of the aggregate of circumstances which are to make up the necessary sum of proof; the evidence of each not going to the whole.”

The rule is a simple, intelligible one, but the difficulty in this, as it has been in other cases, is in its application. It is not easy for the mind to divest itself of the influence which facts sworn to by one witness have in corroborating the evidence of another, especially of supplying what is a mere vacuum — a failure or uncertainty of memory in another. This difficulty is well illustrated by the evidence in this case. The evidence of Mrs. Huber was direct and positive that her son, George Rise, wrote the name in the blank in the presence of the testator and by his express direction. Striking out the entire testimony of Mrs. Huber, is there sufficient evidence from other witnesses in the cause which would justify the submission of that fact to the jury ? George Rise was unable to testify that he had inserted the name by the direction of the testator or in his presence. “This name,” said he, “is my writing. I cannot tell at whose instance I put it in; was done at Greenawalt’s or Derr’s office. I know I wrote it in; can’t say when or who present. If at Derr’s office, he present; if at Greenawalt’s house, he present. If at his house, my mother present; witnessed a bond; I was called on purpose to witness the bond. I never gave a thought to the other transaction.” The only other witness present was Lydia Frantz. She could not recollect having seen George Rise there. She left after the first execution of the will. “ I think I went home to tea.” The circumstance of the execution of the bond would of course be material, but that it was done at the same time with the writing in the will depends solely upon the credibility of Mrs. Huber. Lydia Frantz does not remember it. What other circumstances then have we in the case ? There is undoubtedly evidence of repeated declarations by the testator that Mr. Derr was his residuary legatee, though some evidence was given of declarations to the contrary. It is clear that they go for nothing: Hock v. Hock, 6 S. & R. 47 ; Clark v. Morton, 5 Rawle 235. Nor is the circumstance that the will continued four years from its date in the possession of the testator sufficient. Had there been no subscribing witnesses, and the will been proved by the testimony of two witnesses to the handwriting of the testator, it would perhaps have been sufficient primá. facie. The presumption may be that it was perfect when the testator subscribed to it. But the subscribing witnesses were there and must be called, and their testimony showed that the will was not perfect when he executed it. We are thrown back then upon the testimony of Mrs. Huber, as to when the blank was filled, and whether by the authority and at the instance of the testator. It' might well be that, believing his instruction to have been followed, he had kept .the will in his possession without further examination. It does not appear that he ever had the will in his hands after its execution. Even Mrs. Huber fails to prove that, but rather shows the contrary. “ After the will was executed, he asked me to take it ‘home with me. I took it home; kept it from December till some time in March. I took it back, gave it to his mother, and she put it in his desk; was found there after his death.” Adopting Chief Justice Gibson’s language in Hock v. Hock: “ Strike out Mrs. Huber’s testimony, and how will the case stand ? There would be a very material link wanting to connect the testator’s declarations with the paper in question. It is said these two witnesses mutually strengthen and support each other. So much the worse. Each must be competent to the whole proof without aid borrowed from the other.”

We are of opinion, therefore, that’ the learned judge below committed no error in the binding direction which he gave to the jury to reject the residuary bequest as no part of the will of L. T. Calvin Greenawalt.

As to the contention that no separate issue was directed as to the fifth item of the will, and the jury was not, therefore, empowered to find that to be no part of the will, as perhaps may be inferred from Hoxworth v. Miller, 7 Barr 458, it is sufficient to observe that no such point was made in the court below, nor has it been specifically assigned for error here.

Judgment affirmed.