Beall vs. Manu.

No. 53. JAMES S. BEALL, heir at law, plaintiff in error, es. JOHN H. MANN, executor, &c. defendant.

[1.] The usual mode in which assent to a will is manifested, is by subscribing it, or acknowledging the signature in the presence of the witnesses, and ordinarily, the execution would constitute sufficient evidence of the testator's kuowledge of its contents.

[2.] The presumption is strong against a party preparing a will, who takes abenefit under it, and although it will not be declared void on that account, strong evidence of intention in such case, will be required.

[3.] In an issue of devisavit vel non, the Court will not remand a cause for a rehearing, notwithstanding the irregularities committed on the trial-being satisfied from the testimony, that justice has been done, especially if the provis ions of the will furnish intrinsic evidence of its reasonableness, and the Court and jury, on the trial below, concurred in opinion, both as to the capacity of the testator, and the fairness of the will.

[4.] For the Court to announce at the close of the testimony, that its mind was fixed and unalterably made up, upon the merits of the case, and then to arrest the argument before its conclusion, is an unwarrantable interference with the rights and privileges of both counsel and jury.

[5.] The Court has the power to express to the jury its opinion upon the facts, but to its exercise there are assignable limits, and in a doubtful case, this infringement upon the peculiar province of the jury, would constitute sufficient ground for a new taial.*

Caveat to Will-Tried in Cass Superior Court, before Judge WRIGHT, August term, 1848.

The facts are incorporated at large, in the opinion of the Court.

McDONALD, for plaintiff in error.

In arguing this case, I want it to be kept in mind

1st. That the will was written at the house of John H. Mann. 2d. That it is in his hand writing.

3d. That there was no one there except Mann, the testator, and the servant of the latter.

4th. That he came to Mann's house in extremely bad health, and the will was executed within a little more than twenty-four hours after his arrival.

*See Supra-Holder vs. the State.

Beall vs. Mann.

5th. That he had written a will with his own hand, with which he was satisfied but a few days before.

6th. That there was no evidence that the testator knew the contents of the will.

"Ut

Lib.

In such a case there must be proof of the knowledge of the contents of the instrument. When the person who prepares the instrument, or conducts its execution, is himself benefitted by its dispositions, evidence of the signing alone will not be sufficient, but the proof must go to the knowledge of the contents of the instrument. 1 Williams' Ex. 219. There must be very clear proof of volition and capacity, as well as of a knowledge of the contents of the instrument. Ib. 63. So stringent was the rule of the Civil Law, that qui se scripsit heredem, could take no benefit under the will. There cannot be too great a security against fraud in making wills. The rule of the Civil Law is the only safe one. It effectually prevents fraud by writers of wills, in their own favor. Another rule of the Roman law, for the security of testaments, was that the name of the heir should be expressed, by the band writing of either the testator, or of the witnesses. per manus testatoris vel testium, nomen heredis exprimatur." 2, tit. 10, section 4, Justinian's Institutes. Such a regulation gives an assurance, that the testator will, in all cases, know the contents of the testament, and effectually protects him against imposition. The rule of the English Law is less stringent. By the Civil Law, if the writer took a benefit under the will, it was void, whether the testator knew the contents or not; by the English Law, he may take the benefit, provided he can prove that the testator knew the contents of the will. This constitutes the only difference between the codes. By the Roman Law, the will of Stallings is void. By the English Law, it is equally so, unless a knowledge of its contents can be brought home to the testator. No part of the proof is such as to warrant the inference, that the contents were known to him. Every thing that he said at the time of the execution of the will, and the fact that the will was on his bed when the witnesses came in, and the declaration that he had been making his will, are perfectly consistent with a total ignorance of its contents. It is nothing more than what a testator in ordinary cases would do, and in ordinary cases, cases in which the legatee is not the writer of the will, it is sufficient. But if a legatee write a will, the law of England requires that the proof

B. Minn.

should be c'e ir and decisive. The balance must not be left in epeling; the proof must not merely go to the act of signing, but a te korvedre of the contents of the paper. In ordinary cases tus = 1 C necessary, but the person who prepares the instru Det må med is the execution of it, is himself an interested miure must be watched as that of an interested perLuen. Our 1 Eer. Rep. 273.

Lys money peacus to protect the unwary against ma niewy and race. Where the relation of confidence In the pure frames the instrument for his own advanwein, mem presumption arises against the transacSICISSIT prove fraud and circumvention; he m ve De Teslypon by clear and satisfactory proof. 3 The Demontu. Wyatt.

fest ni de endence ring distinctly to show the nature * Nem s srething going distinctly to their nakaans, a teker the circumstances to supply the ostrat es and the absence of explanations at the exeLes tan this withesufficient to supply the demands

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mu to jam me the suspicions attaching upon the inEE00

las me, the Court pronounced against the will. Upon this Zuzuen a cell wis prsecuted to the delegates. It was red in fer consoleranda there, from the 20th January, to Sth Juy and the Court were, on the latter day, equally divided in opinan, and ne sentence was pronounced. 5 Ec. Rep. 183. After other judges were called in, the sentence of the Court of Prerogative wis reversed. The Court of Delegates did not disaffirm any of the principles of law laid down by the Judge of the Court of Prerogative, T. 184. They thought the facts warranted a diferent conclusion. There was evidence which went very far to prove a knowledge of the contents of the will. In fact, the testator referred directly to what he had done in his will. Speaking of Henry Wyatt, the legatee, the testator remarked, “if he wants money now, he wont want it when I am gone.” At another time he said. “I have made Henry quite independent of his father, and every one else," and again he said, "his father has not much to leave him, but I have taken care of him. 3 Ec. Rep. 201.

The Lord Chancellor, before whom a petition was presented

Beall vs. Maun,

for a Commission of Review of the decision of the Court of Delegates, said that unless he could be satisfied that the principles of law on which that Court decided were wrong, or that the facts were mis-stated, or misunderstood, he could not recommend the Crown to grant a Commission of Review; a doubt was not sufficient, he must be convinced that they were clearly wrong. He said also, that the testimony had raised doubts in his mind, that nothing that he had heard had removed. 5 Ec. Rep. 185.

Where a paper has been drawn up by a person for his own benefit, or where he takes a considerable benefit under it, the presumption lies strongly against the act, and it requires to be proved by satisfactory evidence, dehors the instrument, that it was a free and voluntary act of a capable testator, and executed with a full knowledge of its contents and effects. 6 Ec. Rep. 409. The probability of the testamentary dispositions will not aid the case, for the party confided in, who wished to practice an imposition for his own benefit, would draft the instrument according to such probability. He might even acquaint himself with prior declarations of the party, so as to mould the instrument in conformity to them, while the testator himself may have abandoned his previously declared purposes.

In the case of Barry vs. Butlin, the Court reviewed the authorities on this subject, and recognised the rule, that there are cases of wills prepared by a legatee, so pregnant with suspicion that they ought to be pronounced against in the absence of evidence in their support, and that extending to clear knowledge of the contents by the supposed testator, and that instructions proceeding from him, or the reading over of the instrument by or to him, are the most satisfactory evidence of such knowledge. 6 Ec. Rep. 418. One of the cases of such wills, so pregnant with suspicion, is where the legatee takes a considerable benefit under it.

In the case of Barry vs. Butlin above referred to, there was proof of capacity and intention or volition, and of a circumstance which led to the necessary conclusion, that he knew the contents of the will. The testator sent to desire a witness to come and see him execute his will. One of the witnesses testified that the testator declared it to be his last will and testament, and requested him to witness it. The draft of the will, in a page of it, is twice altered in the hand writing of the testator, "which," the Court remarks, "distinctly proves his mind was employed on

Bealls. Mann.

should be clear and decisive. The balance must not be left in equilibrio; the proof must not merely go to the act of signing, but to the knowledge of the contents of the paper. In ordinary cases this is not necessary, but the person who prepares the instrument and conducts the execution of it, is himself an interested person, his conduct must be watched as that of an interested person. Pashe vs. Ollat, 1 Ecc. Rep. 273.

The law is extremely jealous to protect the unwary against undue influence and control. Where the relation of confidence exists, and the party frames the instrument for his own advantage and benefit, every presumption arises against the transaction. It is not necessary to prove fraud and circumvention; he must remove the presumption by clear and satisfactory proof. 3 Eng. Eil. Rep. 172, 174, Ingram vs. Wyatt.

There ought to be evidence going distinctly to show the nature of the testamentary acts, something going distinctly to their nature and contents, in order for the circumstances to supply the want of instructions, and the absence of explanations at the execution. Less than this will not besufficient to supply the demands of the law, and to overcome the suspicions attaching upon the instructions. 3 Ec. Rep. 200.

In this case, the Court pronounced against the will. Upon this judgment an appeal was prosecuted to the delegates. It was held under consideration there, from the 20th January, to 8th July, and the Court were, on the latter day, equally divided in opinion, and no sentence was pronounced. 5 Ec. Rep. 183. After other judges were called in, the sentence of the Court of Prerogative was reversed. The Court of Delegates did not disaffirm any of the principles of law laid down by the Judge of the Court of Prerogative. Ib. 184. They thought the facts warranted a different conclusion. There was evidence which went very far to prove a knowledge of the contents of the will. In fact, the testator referred directly to what he had done in his will. Speaking of Henry Wyatt, the legatee, the testator remarked, "if he wants money now, he wont want it when I am gone." At another time he said, "I have made Henry quite independent of his father, and every one else," and again he said, "his father has not much to leave him, but I have taken care of him. 3 Ec. Rep. 201.

The Lord Chancellor, before whom a petition was presented