Lipphard v. Humphrey

Mr. Chief Justice ShepaRd

delivered the opinion of the Court:

When or by whom the will of Loraine Lipphard was written does not appear in the evidence, but there is not a single circumstance of suspicion attending its execution. Though an aged and illiterate woman, she was of sound mind and body at the time. Bearing the instrument, she went alone to the office of a young lady whom she well knew. She said it was her will, and that she had come to have its execution attested by three witnesses, which number was then required to a will creating an estate in land. The two other witnesses sent for were acquaintances, one of them for forty years. She declared the instrument to be her last will, and asked them to attest it. She affixed her mark to it in their presence, and they then and there signed as witnesses. The witnesses were competent persons, evidently intelligent, had no interest whatever in the will; and no attempt was made to impeach their credibility. When the act was complete, the testatrix departed with the paper, and evidently delivered it to tbe pastor of ber cbnrcb, wbo was made executor and trustee.

Under sucb conditions tbe court was undoubtedly right in denying tbe appellant’s motion to direct a verdict for them on tbe issue of due execution because the will was not read to tbe testatrix at tbe time of execution and attestation. If possessed of tbe necessary capacity, persons illiterate, as well as literate, can dispose of their property by will. No distinction is made between them in tbe former or existing statutes regulating tbe máking of wills, and tbe procedure for their probate. In all cases tbe subscribing witnesses, if living and within tbe jurisdiction, must be called to prove tbe fact of execution; and if it appears, from their evidence, that tbe will was formally executed and tbe testator competent, it must be admitted to probate. Code, secs. 131, 132, 134, 1626 [31 Stat. at L. 1211, 1212, 1433, chap. 854.]

It is a settled rule, under sucb statutes, that if a person of sound mind executes a will, and tbe same is bis voluntary act, tbe law presumes knowledge on bis part of its contents. Taylor v. Creswell, 45 Md. 422, 431.

Tbe appellants concede this where tbe testator is able to read tbe instrument, but deny its application where be is unable to do so.

Illiterate persons, as well as others, may wish tbe contents of their wills to remain unknown to all but tbe confidential scrivener. Being of sound minds, and having satisfied themselves in their own way that tbe will has been written as directed, they may call in witnesses and execute it by affixing their marks, or having their names signed, without having tbe contents again made known to them. There is no good reason for excluding them from the benefit of the presumption which attaches to the same acts when performed by persons able to read and write. The great weight of authority is opposed to making such an exception to the general rule. Shanks v. Christopher, 3 A. K. Marsh, 144; Boyd v. Cook, 3 Leigh, 32, 51; Hoshauer v. Hoshauer, 26 Pa. 404, 406; Vernon v. Kirk, 30 Pa. 218, 224; King v. Kinsey, 74 N. C. 261, 263; Guthrie v. Price, 23 Ark. 396, 407; Clifton v. Murray, 7 Ga. 564, 50 Am. Dec. 411; Doran v. Mullen, 78 Ill. 342, 346; Browning v. Budd, 6 Moore, P. C. C. 430, 435.

Tbe majority of the cases cited by the appellants maintain the view that the presumption that a testator knew the contents of the instrument the execution of which he called the witnesses to attest and that it expressed his will, stands unless there are attending circumstances leading to a different conclusion. -As we have seen, there were no such circumstances in this case.

Passing to the question raised on the second assignment of error, we think it equally clear that there was no error in excluding the evidence of declarations made by the testatrix concerning the contents of her will. Evidence of the declarations of a testator are sometimes admissible in cases where the mental capacity of the testator is in issue, not, however, as proof of the facts declared, but as tending to show the condition of mind at the time of execution. Throckmorton v. Holt, 180 U. S. 552, 573, 45 L. ed. 663, 673, 21 Sup. Ct. Rep. 474.

In this case the mental capacity of the testatrix was clearly proved, and there was no evidence whatever tending to dispute the fact. Moreover, the declarations hád no tendency to show the want of mental capacity. The sole object of the proposed evidence was necessarily to show that because the testatrix had, some time after executing the will, made declarations indicating that she had made a different disposition of her property from that recited therein, she could not have known the contents at the time of its execution. The proposition is without foundation, either on principle or authority.

The judgment was right, and will be affirmed.

Affirmed.