Dickinson v. Dickinson

The opinion of the court was delivered, May 12th 1869, by

Agnew, J.

The first two assignments of error are not sustained. Henrietta Stroup, the witness, had not testified to facts fairly indicative of mental incapacity, and therefore no sufficient ground was laid to make her opinion competent evidence.

The decisions in this state certainly are, however, as claimed by the plaintiff in error, that when a witness, not a subscribing witness to the will, has testified to facts of his own knowledge tending to show want of testamentary capacity, he may be permitted to add his own opinion. To the cases cited by the plaintiff in error (Rambler v. Tryon, 7 S. & R. 90, and Wogan v. Small, 11 S. & R. 141), may be added Wilkinson v. Pearson, 11 Harris 117; Bricker v. Lightner, 4 Wright 199; Dean v. Fuller, Id. 478, and Titlow v. Titlow, 4 P. F. Smith 216. See also Redfield on Wills 140, 141, 142; 1 Greenlf. Ev. § 440, note 6.

The second error must be sustained, though not on the ground most urged. The proof of the election of Abel Dickinson, the husband of the testatrix, to claim against his wife’s will was not sustained. His receipt to A. B. Dickinson for $150, interest on the note of the latter to Mrs. Julia Dickinson, does not express the character in which he received the money, and there was no other proof. The receipt left the question of election in doubt. In fact Abel Dickinson had no right to receive the interest in any capacity. It was a mispayment; as the executor or administrator of Mrs. Dickinson only could legally receive it. An election in pais to take under a will, whether of husband or wife, should be clear and positive to prevent or estop a party from making it in a regular and proper form at law: Anderson’s Appeal, 12 Oasey 476.

The second ground of objection to Abel Dickinson’s competency is more tenable. The question trying was the testamentary capacity of Julia Dickinson. If she possessed it, she died testate; if she did not, she died intestate. If testate her husband could elect under the 1st section of the Act of 4th May 1855, to take such share and interest in her real and personal estate as she could when surviving elect to take against his will in his estates. This would be one-third of the personalty absolutely. But if she died intestate, then, under the 9th section of the Act of 11th April 1848, he would be entitled to an equal share with her children; in this case one-ninth of her personalty. It is clear it was the interest of Abel Dickinson to establish the will, as his election against it would thus give him one-third of her estate, while intestacy would give him but a ninth. But it is objected that the Act of 1855 has repealed that of 1848 in this respect. It does not expressly, and to do it impliedly it must be clearly repugnant, so that they cannot stand together. The 7th section of the Act of 1848 conferred the power upon a married woman to dispose of her separate estate by last will and testament. It was only on her failure to do so the 9 th section distributed her estate in certain proportions among her children and her husband as the consequence of intestacy. But when she exercised the power of a testatrix, she eould do it as absolutely as any other person, and therefore could will away from her husband as well as from her children. It was to correct this supposed excess of power and place her on a level with her husband, the Act of 1855 enacted— “that the power of any married woman to bequeath or devise her property by will shall be restricted as regards the husband to the same extent as the husband’s power so to dispose of his property, is restricted as regards the wife, namely,” &c. But this neither expressly nor impliedly repealed the 9th section of the Act of 1848, providing for a married woman’s intestacy only. The former relates to the husband’s rights where there is a will, which before could deprive him of all right to her property; and the latter ascertains the mutual rights of husband and children where there is no will. If there be no children the personal estate is given altogether to the husband. Her acts, therefore, relate to different subjects and are not repugnant. Abel Dickinson’s interest was to establish the will, his election giving him a greater share in her estate, and it was therefore error to admit him to testify.

The last assignment of error does not raise, except perhaps incidentally, the question most pressed in the argument, to wit: that the husband’s presence at the attestation of the will vitiates it. The court charged directly that his presence did not render the will invalid. We cannot say this was error. The legislature certainly intended that the husband should take no part in the proof of his wife’s will. The 7th section of the Act of 1848 reads thus: “Any married woman may dispose by her last will and testament of' her separate property, real, personal or mixed, whether the same accrues to her before or during coverture. Provided that said last will and testament be executed in the presence of two or more witnesses, neither of whom shall be her husband.” This is a provision for the proof of the instrument, and not a prohibition of a matter constituting no part of the proof. It is proper that the proof of the will should come from a disinterested source, and therefore the husband should not participate in the proof; but there is no prohibition against his presence when the attestation takes place. It is scarcely possible if the legislature intended a prohibition they would not have said so. Every ‘one, clerk or layman, knows that a separate acknowledgment of a wife apart from her husband is necessary to make her deed valid. Knowing this it is singular the legislature did not prohibit the husband’s presence if a similar ceremony was intended to take place before the subscribing witnesses. If the influence of the husband be a ground for excluding the husband’s presence at the attestation of the will, much greater is the reason that it should appear that his influence had nothing to do with the formation of the will, by requiring a ceremony similar to the separate acknowledgment of a wife’s deed,when she could freely say that her will was made of her own accord and without influence or compulsion. It is the undue influence in making the will which is most to be feared, and not that which might arise from the husband’s presence at its execution. There being no prohibition of any kind except against actual witnessing by the husband, we cannot say that the will is rendered invalid by the husband’s presence. To do so, would be rather to legislate than to interpret.

The precise question involved in the point already referred to was, that Julia Dickinson’s actual knowledge of the contents of her will was proved only by her husband, and therefore that there was a failure to prove due execution of the will. But the question of due execution depended on the testimony of the subscribing witnesses. It is true, they do not testify that the will was read to her in their presence, or that she knew the contents. But they testified to facts implying ho want of knowledge on her part — she spoke of facts concerning the drawing of her will, and referred to the paper before them as her will in such a manner as to leave the opposite impression, that she did know its contents. To adopt the rule that subscribing witnesses must hear the will read, or know that the contents have been made known to the testator, would embarrass the proof of wills. If facts are proved showing that a testator does not know the contents of the paper he subscribes as his will, it is a different thing; but if the proof is consistent with knowledge we must allow something for the natural presumption that no one will do so important an at$ without knowledge. As remarked by Lowrie, J., in Hoshauer v. Hoshauer, 2 Casey 406, “We must admit the presumptions that arise from the ordinary course of doing such business; and one of them is, that a person signing any instrument and asking persons to attest it, has taken care to understand its contents.” There being in the present ease no proof to negative Mrs. Dickinson’s knowledge of the contents of the paper, the affirmative proof of knowledge by her husband was, not necessary to help out the proof of due execution; and the court could not, therefore, as a matter of law, charge as requested in the point that the proof of execution of the will was insufficient.

Judgment reversed, and a venire facias de novo awarded.

Thompson, C. J., dissented.