Whitelaw's Adm'r v. Whitelaw's Adm'r , 96 Va. 712 ( 1899 )

Buchanan, J.,

delivered the opinion of the court. •

This was an issue to determine whether or not a writing which had been admitted to probate was the last will and* testament of Mrs. Mary Whitelaw, deceased.

Two bills of exceptions were taken upon the trial to the action of the court in admitting certain-evidence.

The evidence set out in the first bill of exceptions consisted of the nuncupative will of David Whitelaw (late husband of Mrs. Mary Whitelaw), who died April 8, 1825; a deed from Elizabeth Yager (daughter of David and Mary Whitelaw) and her husband to her brothers, B. R. and I. D. Whitelaw, dated August 11, 1844, conveying all the interest which the grantors took under the will of Mrs. Yager’s father; a deed from I. D. Whitelaw to B. R. Whitelaw., his brother, dated March 16, 1848, by which he conveyed all the interest in the lands which he acquired under his father’s will and which he had acquired from his sister, Mrs. Yager, and her husband under the deed of August 11, 1844; a deed from B. R. Whitelaw to his sister, Mrs. Yager, dated September 10, 1867, by which he conveyed to her a certain parcel of land which he had acquired under his father’s will, and through the deeds of his brother and sister; and six judgments confessed by Mrs. Yager in favor of her brother, B. R. Whitelaw, on the 20th day of October, 1877.

This evidence was offered by B. R. Whitelaw and those who claim under him to sustain their contention that her alleged will was made at a time when the testatrix was mentally incompetent to make a will; and that it was procured by improper influences.

If the party offering the nuncupative will in evidence had shown that Mrs. Whitelaw (the validity of whose will is in issue in this case) had declared her intention, prior to the execution of her will, of disposing of her property, or of the property attempted to be disposed of by her, in accordance with the wishes of her husband as disclosed in his will, it would, as counsel argue, have been admissible in evidence as a circumstance, perhaps of no great value, tending to show 'that she had been improperly influenced in making a will disposing of her property in a different manner. But no such evidence was offered with the will, so far as the bill of exceptions shows, nor have'we been able to find any such evidence in the record as would render it admissible in evidence.

Mrs. Whitelaw was not a party to either of the deeds, nor to the judgments which were offered in evidence. There was nothing in them which could in the most remote degree shed any light upon the issue submitted to the jury, so far as we have been able to see.

The general rule is that-collateral facts are inadmissible in evidence, because they do not afford any reasonable presumption or inference as to the principal fact or matter in dispute, and tend to draw away the minds of the jury from the point in issue, excite prejudice, and mislead the jury. 1 Greenleaf on Evidence, sec. 52.

There is nothing in this case to take it out of the general rule, and the evidence ought to have been excluded.

The question presented by the second bill of exceptions is whether upon an issue of devisavit vel non the legatee or devisee, who is attacking the validity of the will, can introduce in evidence the admissions of another legatee or devisee, tending to impeach it where there are other legatees or devisees interested in sustaining the will.

This question has never been passed upon by this court in any reported case.

- It was somewhat discussed in Burton v. Scott, 3 Rand. 399, but the declarations in that case were held to be inadmissible, on the ground that they were made prior to the execution of the will, the court/being of opinion that the declaration of a person as to a subject, in which he had no interest at the time, could not be given in evidence against him, if by any subsequent event an interest in the subject should be thrown upon him.

Though the admissions of a party to the record are generally receivable against him, yet, where there are several parties on the same side, the admissions of one are not admitted to affect the other, who may happen to be joined with him, unless there is some joint interest or privity in design between them; although the admissions may, in proper cases, be received against the person who made them. 1 Greenleaf on Ev., sec. 174. The fact that two or more persons have a common interest in the same subject-matter does not entitle them to make admissions respecting it as against each other, and where each claims independently of the other, though under a common instrument, neither the words nor the acts of one can bind the other. Stephens on Ev., Art. 17, p. 47; 1 Greenleaf on Ev., sec. 176. In a case like this, where the validity of the whole will is attacked, and in which it must either stand or fall as a whole, the admissions of Mrs. Yager tending to show a want of mental capacity in the testatrix, or the use of improper influence in the execution of the will, must necessarily affect her daughters (who are attempting to sustain the will) as well as herself. The only way, therefore, by which they can be protected from the influence of such admissions, for which they are in nowise responsible, is by excluding them from the jury, and by allowing the party attacking the will to introduce such evidence only as is competent against all the parties seeking to establish its validity.

This seems to us to be the correct rule in principle, and whilst the decisions of the courts of the States which have passed upon the question are conflicting, the weight of authority and the better reason is, in our opinion, in favor of the rule as laid down above. Nussear v. Arnold, 13 Serg. and R. 323; Clark v. Morrison, 25 Penn. St. 453; Shailer v. Bumstead, 99 Mass. 112, 113; Thompson v. Thompson, 13 Ohio St. 356; Forney v. Ferrell, 4 W. Va. 729; Hays, &c. v. Burkham, 67 Ind. 359; Blakey's Heirs v. Blakey's Ex’r, 33 Ala. 611.

We are of opinion, therefore, that the Circuit Court erred in • admitting the evidence set out in bills of exception, numbered one and two, and that for such error its judgment must be reversed, the verdict of the jury set aside, and a new trial awarded. This being so, it will be unnecessary to consider the other assignment of error, that the judgment was contrary to the law and the evidence.

Reversed.