author: Thompson, C. J.

text:
    Thompson versus Kyner.
    1. An abnormal condition of mind is never presumed when a testator makes a will, unless a previous aberration be shown of such a nature as may admit of a presumption of reourring unsoundness at any time.
    2. Bach case as to incapacity is, to a great extent, to be tested by its own facts and circumstances.
    3. Old age, failure of memory or habitual drunkenness, will not per se constitute incapacity to make a will.
    4. The test of capacity is, that the testator’s mind and memory were sufficiently sound to enable him to know and understand the business in which he was engaged at the time he executed his will.
    5. Weakness alone will not invalidate a will, if there be mind and memory enough to understand the subject in hand and to direct the disposition of the property intelligently.

      6. The test of this is to be of the time when the will is made including' some latitude of proof, before and immediately, as distinguished from remotely, after.
    7. Undue influence may be either through threats or fraud and must destroy the free agency of the testator, at the time when the instrument is made.
    8. Declarations as to the incapacity of a testator by a party sustaining the will, were properly rejected, when the offer was made without limitation as to time, place and circumstances of making them.
    9. Proof is admissible to rebut a material presumption.
    10. As a general proposition less capacity is sufficient to make a valid will than to transact ordinary business-
    11. The rule as to incapacity and undue influence in McMasters v. Blair, 5 Casey 298, Daniel v. Daniel, 3 Wright 191, Storms v. Vancleve, 4 W. C. C. R. 262, Eckert v. Fleury, 7 Wright 46, adopted.
    May 10th 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Franklin county: No. 70, to May term 1870.
    This was an action of ejectment, brought March 24th 1868, for two tracts of land in Franklin county, by Mary Thompson and others, heirs of George Kyner, deceased, against Alexander W. Kyner. The defendant claimed as devisee of the decedent; the plaintiffs alleged that the will was invalid by reason of the incapacity of the decedent and undue influence exercised over him by defendant. The will had been contested in an issue directed by the Register’s Court, and a verdict rendered sustaining the will. The decedent died in July 1867, aged about 92 years, leaving a widow, Mary Kyner, seven children, including the defendant, and six grandchildren, children of Margaret, a deceased daughter, who died after the date of the will.
    The will was dated June 28th 1855, and established by the verdict in the feigned issue, February 12th 1868. The testator gave to his wife one-third of his personal property absolutely, and one-third of the rents, &c., of his real estate for life. He gave to each of his children, except the defendant, $400, the first payable in four years after his death, and the payment of others successively each in one year after the preceding; the last being in ten years after his death. He gave all his real estate to his son Alexander, and charged it with the bequest to the widow and the legacies to his brothers and sisters; he gave him also the residue of his estate and appointed him executor of his will. The will was admitted to be in the handwriting of James S. Ross, Esq., who died in October 1864. The widow elected to take under the intestate laws. She was called by the plaintiffs, and testified that the defendant had farmed his father’s farm to the shares from about 1850. The decedent previously to that, had become security to a large amount for a man named Wharton, who failed in 1849, and the decedent had been compelled to pay a large amount on account of these liabilities; after that he “ became weak-minded, and not able to attend to business.” Afterwards the defendant attended to his business; he never settled with his father, but with the witness ; they had settlements in the presence of the decedent; he took no part in them: was hard of hearing; his interest in his business decreased as he grew older; the defendant did not ask that the decedent should be present; he became paralyzed about seven years before his death; had symptoms of paralysis in 1855; was weak and sick, and slept a good deal.
    The plaintiffs proposed to prove by this witness:—
    That for several years prior to the date of the paper in dispute and up until the death of George Kyner, the defendant assumed to himself the entire control and management of his business. That he conducted and controlled all the work and business that Were performed upon the farm. That he sold the products thereof —paid expenses of conducting the farm, and paid outside debts of George Kyner. That George Kyner during all this time had entirely surrendered the control and management of his affairs to the defendant and the witness. That during all this period all settlements for the products of the farm, and the accounts between the defendant and his father were settled with the witness — without any interference, objection or remark on the part of the father. That he was frequently present on the occasion of these settlements, but took no part, and exhibited no concern or interest therein. That the farm was a productive one, and these settlements embraced accounts to the amount of $800 or $900 on an average every year. That this indifference and want of attention to these matters grew out of the mental imbecility and weakness of the father. That frequently in these settlements, the witness would remark, that they (that is the witness and the defendant) must be careful to make accurate settlements for they were transacting business for orphans — the father being for all business purposes the same as a dead man. And that the defendant would assent to this remark by the witness that this was true, and that the defendant frequently on the occasions of the settlement, and at other times admitted to the witness, that his father had not mind enough to transact his own business.
    Parts of the offer were objected to by the defendant. The court rejected the offer, except so far as it relates to time prior to the execution of the will, or to the time of the execution, or Within a short period after, and sealed a bill of exceptions.
    The witness proceeded: — Before the date of the will the defendant said the decedent was not fit to attend to business ; people could persuade him to do anything; witness thought decedent not fit to make a will in 1855; decedent told witness several times after 1855 that he had not made a will. After decedent’s death witness told defendant he ought to administer the estate, and should ask Mr. McLain to unite with him; he said he would go, but on his return said he had not seen McLain, but had gone to Chambersburg to see what he would have to do. Witness said that was strange ; defendant hesitated a moment, and said, “ Mother, there is a will, written twelve years ago,” that witness was left well off, each of the heirs got $400 — and defendant got the farm. Witness said, “ You and Ross made the will, and got your father to sign it. He just stood and made no answer.” Witness asked him how he knew there was a will ? he said that in the street in Chambersburg he met Clarke, who told him there was a will.
    Joshua Kennedy testified: In the middle of June 1855, about 1J o’clock p. M. of the day, he met defendant coming out of Mr. Ross’s office in Chambersburg. Witness went in, decedent was sitting at his table. Mr. Ross was writing. Witness went out, and returned at 4 o’clock, and Mr. Ross said he had just been writing decedent’s will. This witness testified to facts tending to showing the decedent’s incapacity.
    The plaintiffs proposed to show by this witness that from 1855 until testator’s death, his mind was weak and imbecile, and unfit for the transaction of business, and that this unfitness extended through the whole period.
    The offer was rejected by the court and a bill of exceptions sealed.
    Mrs. Ross, the widow of James S. Ross, testified, that after her husband’s death she had given the will to Lyman S. Clark, Esq. The defendant had called on witness and asked about the will; told her to keep it safe, and let no one know about it.
    Lyman S. Clark testified that the defendant came to the witness with Mr. Hayes, his counsel, and asked him if he had the will; witness did not meet defendant on the street and tell him that he had the will.
    The plaintiffs examined many witnesses, who gave testimony tending to show the decedent’s incapacity, influence exercised over him by the defendant, and that his mind was so weak that he could be easily persuaded to make the will he did.
    The defendants examined a great many witnesses, who testified that before and at and about the time of the date of the will, the decedent had capacity to make a will; that he gave attention to his affairs, that the defendant consulted his wishes, &c. He testified that he had not been at Mr. Ross’s office, nor even in Chambersburg on the day the will was prepared. There was other evidence also to the same effect.
    The plaintiffs recalled Joshua Kennedy, who testified:—
    “I had a conversation with James S. Ross on the day he told me the will was written. It was in his parlor after tea. After he made the statement that he had written Mr. Kyner’s will, I told him the condition of Mr. Kyner’s mind at the time I last saw him, three or four weeks before, which was as I gave it here. He stated that Mr. Kyner’s mind was confused during the time he was writing the will. I spoke of the vacillation of Kyner’s mind. He said Ml-. Kyner’s mind was excited when the will was writing. He remarked that he would take that will and keep it in his own hands. That was the substance of the conversation.”
    The plaintiffs submitted a number of points, of which the 6th was:—
    If the jury believe that Mr. Ross, on the evening that the will was made, told Rev. Joshua Kennedy that he observed that Mr. Kyner’s mind was confused and excited whilst he was making his will, and that he would retain the will in his own possession, this evidence is of grave importance in estimating the actual fitness of Mr. Kyner then to dispose of his estate.
    The court (Rowe, J.) answered, “We affirm all these propositions, the last being modified by what, we have said in the general charge.”
    The 10th and 12th points of the defendant were:—
    10. That it requires a greater degree of mental capacity to execute a contract than it does to make a valid last will and testament.
    12. That the attestation of said instrument by James S. Ross, Esq., and James L. Black, Esq., the proof of the handwriting of the said James S. Ross, and the testimony of the said James L. Black, as well as the fact that said James S. Ross retained the same in his custody for a period of seven years and more, are all facts and circumstances eutitled to great weight with the jury in the determination of this cause, and there is nothing in the declaration of James S. Ross, Esq., as stated by Rev. Joshua Kennedy, inconsistent with this position.
    These points were affirmed in the general charge.
    Judge Rowe, after recapitulating the admitted facts, &e., charged: — ■
    * * * “ This brings us to the consideration of what constitutes mental capacity to make a will. What amount of mind and memory must a testator possess ? What is that mental imbecility which disqualifies to make a will ? For this is a case of senile dementia, mental weakness arising from old age, the decay of the mental faculties following the loss of bodily vigor and vitality. We are not concerned in this investigation with questions of insanity, properly so called. This is not a case of delusion taking hold of a vigorous mind, but of a' loss of mental power; not of an irregular working of the machinery of the mind, but of a ceasing to work with sufficient power.
    “ It is supposed by some that capacity to make a contract or transact ordinary business, is the criterion of fitness to make a will, but it is not so. [Much less than this is sufficient in most cases, and certainly in the case of a simple will like this one’in question, where a testator gives his wife what the law gives her, $400 to each of his children — except one, and to him the remainder. To make such a disposition of one’s estate would require but little reflection and memory.]
    “ It has been supposed also, that a sound and disposing mind and memory consists in the testator’s ‘ ability to reflect upon his business affairs,’ understand the nature of what he is doing, with a recollection of all his estate, his family relations in life, as well as their condition in general, and the probable effect the proposed disposition will have, and to collect all this in one view.’ But the Supreme Court has said that this is requiring too much; that it is sufficient if he understands in detail what he is about.
    “ It is not probable that many place the standard of testable capacity so high as to require the testator to be able to understand theological problems or the requisites of a particular sect to a proper preparation for death. Nevertheless it is proper for us to say that this is no proper test. [It would be exceedingly dangerous to say the mind must be steady, coherent and retentive. It is a trinity not spoken of in any of the books.”] * * *
    [“ It is in evidence from the mouths of witnesses whose character for veracity is not impeached :—

      “ That he conversed intelligently of the purchase of a farm adjoining his own, bought by Mr. Cressler, of the payments and all about it, in 1854, and Mr. Cressler saw no change in his mental condition in June 1855, when Alexander’s barn was raised. In 1853, it would seem, he got Mr. Heck to lift a judgment at Chambersburg, that another judgment might come in first, and then gave him a second judgment a day or two after at Shippensburg. In 1855 he got John Johnston to endorse for him, in giving and renewing notes in bank. Henry Hollar had dealings with him in 1855. Sold him goods and bought cattle of him. Says he was a man of sound mind, fit to make a bargain, careful in buying and selling, as hard to deal with as another. In 1855 he took vessels to Samuel Boher, at Shippensburg, a cooper, and left a balance of account stand a few days, and came back and paid it. In 1855 he dealt so closely with Hugh Smith, that Smith could not buy. In 1854 he asked what the Eastern market might afford, but not the home market. He paid Smith his taxes after being threatened with a levy. In 1854 he refused Henry Stouffer corn, until he should ascertain the state of his accounts with Alexander. Said he would tell Alexander, and a day or two after the corn came. In 1851 he acted for David Hays as an appraiser, and the business was properly done. ■ In-1855, just about the time perhaps that this will was executed, or after, for it was when Alexander’s barn was painted by Samuel Winters, and it seems to have been
      raised in June, Winters made a contract with the old gentleman for the painting of his barn. He says, we got to bargaining; George Kyner asked me what I would take to do the job, and what I would do it for by the day, and what material it would take. I told him, and bargained with him. He drove his bargain as close as ordinary men. In a bargain he was as sound as any man I got hold of. On the 10th of May 1855, a month or two before the making of the will, he was at the house of Charles M. White, for several hours. He came on foot, from his son-in-law Duncan’s, he said, where he had been over night, a distance of four miles. He said he went down to see about their situation; that his daughters had all married well, except the one in the West — Margaret, whom he spoke of as being dead, and her children having been brought in and being well provided for. Said it was a fine thing to have sons that could take the care off fathers. Add to this,the testimony of Michael Lenher, Conrad Plasterer, John Dick, Daniel C. Miller, Peter Creamer — to whom he paid $100 in the field, on March 31st 1855 — Jacob Harclerode, David Oaks, Jeremiah Angle, James Shirk, with all of whom he had business transactions, and with most of them in 1855, it would appear, of greater or lesser importance, and who say he was fit to do business and of sound mind.
    “ This, taken altogether, presents a volume and force of testimony which, in our opinion, is irresistible in favor of the competency of the testator to make the will he did.]
    “And when this is supported by many other witnesses, especially those who worked at the barn of Alexander, and who ate and slept in the house with George Kyner, after the date of the will and just before its date; the fact also of the two witnesses who were present at the execution of the will testifying to his competency at the time, for such we think Mr. Ross must be understood as doing, notwithstanding his declarations, and the declination of Dr. David Kyner, and Mrs. Marshall, two of the plaintiffs, whose conduct on the stand impressed us very favorably, to say more than that, in 1855, their father was in a state of mind to be easily influenced, in reply to a distinct question of whether he was fit to make a will.
    [“ The declarations of the witnesses on the other side that he was childish, lost his subject, talked of hunting, and of bees, once looked wild, once sat behind the stove and muttered to himself for a day or two when Alexander was away out West, bringing home the children of Margaret, and the weather was rough, of hunting on Sunday, and the sound of his gun reaching to Chambersburg, of his saying ‘ Grievous, Boy!’ of his conversation going back to his early days, of his taking no part in the management of his affairs, of his sleeping a great deal, of his symptoms of paralysis in 1855, and the admissions of Alexander, the defendant, that he ■was not fit to attend to business, weigh as nothing in the scale: for all this may be true, and yet the witnesses who tell us how he did business in 1855 not be mistaken. He may have been dull and childish about many things, yet sufficiently wide awake upon the subject in which he was iiiterested, when it was necessary for him to arouse up and exert himself.]” * * *
    [“ I have said that Mr. James S. Ross, one of the subscribing witnesses to the will, must be' taken to speak in favor of the competency of the testator at the time the will was executed, for when his attention was called the same evening by Kennedy to the fact that he thought his mind imbecile, in a conversation he had had a few weeks before, Mr. Ross merely stated that George Kyner— his client for years, whom he well knew, was excited and confused, and that he would hold his will in his own hands. He did not say that his observation of him was the same as that of Mr. Kennedy; but the paramount fact remains, that lawyer as he was, and knowing presumably, that if he died his signature would stand for his oath in favor of George Kyner’s competency, and his attention having been called to the necessity of inquiry as to that, he lived for seven years and died without declaring to wife or acquaintance that the will was void on account of Kyner’s imbecility — and left it behind him to stand, a duly attested will.] The will proved throws the onus on the plaintiffs to establish incapacity; but if incapacity is once established before the date of the will, the presumption is that it remains, and the defendant must show competency at execution. This is all we have to say upon the question of mental competency. We have observed fully upon the facts, because it seemed to us that the case called for it and you had a right to whatever aid we could afford; but we refer all the facts to you, to be applied to the principles of law expounded by the court.” * * *
    “ Undue influence is some physical or moral coercion, which destroys the free agency of the testator at the time when the will is made. Some constraint which substitutes the will of another for that of the testator; a present constraint which operates on the mind of the testator in the very act of making the testament.
    “ Any undue influence, past and gone, and in no way connected with the testamentary act, is not evidence to impeach a will.
    “ Less influence will be required to control a weak will than the will of one whose mind is in full vigor. But neither moral nor physical restraint is to be inferred from mental weakness alone; that undue influence which suffices to destroy an alleged will is distinct from weakness, and has no necessary connection with it.” * *
    “ The influence to render a will void must be intentionally exercised specifically to procure the testament in question.

      u There must be pressure and contrivance to procure the will to be made more favorably than was intended, on the part of the person who is charged with the exertion of the undue influence.
    “Influence over the testator, arising from affection and regard on his part, however great it may be, which is general and operating at all times, will not.in itself avoid a will. The influence resulting from habitual confidence or even deference on the part of the testator, inspired by affectionate attentions or important services, or high opinion of capacity, will not in itself be sufficient for that purpose, though the effect of that confidence-or deference is visible in the will itself.
    “ But great affection on the part of the testator for the person charged with exerting the influence or fear of him, or confidence in him or deference for his superior judgment and capacity, especially in one of feeble mind, possessing little resistance, and who has, to a great extent, lost the power of self-direction, is a great fulcrum upon which to work the lever of influence.
    “ I may add that no argument, advice or persuasion will vitiate a will made freely, though it may have changed the testator’s intentions. * * *
    “ If George Kyner’s mind, from his many years and infirmities, bodily and mental, and from a long habit of depending upon his son for guidance, was- though sane, but little self-directing or combative, and easily led into the channel of his son’s suggestions, and if his son, the defendant, when the will-was made, by the stamp of his firm mind.on the weak and plastic will of his father, impressed there his wishes and views in- regard to the disposition to be made by the will, and thus constrained the mind of the old man aside from the purposes he intended when relieved from the pressure of his son’s influence, and so produced and procured such a will as his father would not otherwise have made, the will is not the free expression of George Kyner’s intention, and must be set aside.
    “ But though you should believe the son had such power over the will of his-father,-that he could not resist the wishes of his son if pressed upon-him, still if the son did not.in fact bring such pressure to bear upon-his father, in relation to the dispositions of his last will, it is valid if he was ■ of sound and' disposing mind and memory.”
    The verdict was for the defendant.
    The plaintiffs took out a writ of error, and-assigned for error the rulings as to the offers of evidence, the answers to the points, and the portions of the charge included in brackets.

      J. McD. Sharpe (with whom were Stambaugh & Gehr, Kennedy & Stewart and F. M. Kimmell), for plaintiffs in error.
    Excluding the evidence offered would íeave the proof of capacity to the subscribing witnesses, which might do great mischief: Harrison v. Rowan, 3 W. C. C. R. 581; 1 Redfield on Wills 525. After insanity is established, the burden is on the party alleging a lucid interval when the will was executed: 1 Redfield on Wills 112: Harden v. Hays, 9 Barr 152; Landis v. Landis, 1 Grant 248. The expression of opinion on the testimony was too strong: Hamet v. Dundas, 4 Barr 181; Nieman v. Ward, 1 W. & S. 68; Parker v. Donaldson, 6 Id. 132; Kiester v. Miller, 1 Casey 481; Ralston v. Groff, 5 P. F. Smith 278; Bogle v. Kreitzer, 10 Wright 466; Cadbury v. Nolen, 5 Barr 320; Keeler v. Vantuyle, 6 Id. 250; Trovillo v. Tilford, 6 Watts 468; Strohl v. Levan, 3 Wright 177; Graff v. Pittsb. & Steub. Railroad, 7 Casey 489; Ditmars v. Commonwealth, 11 Wright 335; Lane v. Commonwealth, 9 P. F. Smith 371. As to the instructions on the subject of testamentary capacity, Stevenson v. Stevenson, 9 Casey 469; Leech v. Leech, 9 Harris 69; McMasters v. Blair, 5 Casey 303; Daniel v. Daniel, 3 Wright 191; McTaggart v. Thompson, 2 Harris 149; Winchester’s Case, 6 Reports 23; Dornick v. Reichenback, 10 S. & R. 91. As to the answer to the defendants’ 10th point, 1 Redfield on Wills 128; Coleman v. Robertson, 17 Alabama 84. As to the instruction in regard to Mr. Ross’s attestation, Barker v. McFerran, 2 Casey 211; Lossee v. Lossee, 2 Hill 609; Fox v. Evans, 3 Yeates 506; McElwee v. Sutton, 2 Bailey 128.
    G. W. Brewer (with whom were J. R. Orr and J. Cessna), for defendants in error.
    The test is the competency of the testator at the execution of the will: 1 Redfield on Wills 38, 39; Stevens v. Vancleve, 4 W. C. C. R. 262; Harden v. Hays, 9 Barr 163; Grabill v. Barr, 5 Id. 443; Stevenson v. Stevenson, 9 Casey 472. There was no evidence of undue influence, and that question should have been withdrawn from the jury: Daniel v. Daniel, 3 Wright 191; Eckert v. Flowry, 7 Id. 52. The whole charge is to be taken together; the court may express an opinion on the facts: Porter v. Seiler, 11 Harris 428; Ditmars v. Commonwealth, 11 Wright 337; Watts v. Cummins, 9 P. F. Smith 88; Manhattan Ins. Co. v. Webster, Id. 231. As to the comparative capacity for a contract and a will, 1 Redfield 123, 124. The attestation of witnesses is strong evidence of capacity: Werstler v. Custer, 10 Wright 503.
   The opinion of the court was delivered, July 7th 1870, by

Thompson, C. J.

Testamentary capacity is always presumed to exist until the contrary is established. An abnormal condition of mind is never presumed when a testator makes his will, unless a previous aberration be shown, of such a nature as may admit of a presumption of recurring unsoundness at any time: 4 Wash. C. C. Rep. 262; 8 Shepley 461; 5 Johns. 144; 1 Pet. C. C. Rep. 166. It is true, the witnesses to a will when produced for probate, are asked whether they regarded the testator of sound and disposing mind and memory, but this is form merely, for in case of death, absence or incapacity of the witnesses to testify, proof of their handwriting satisfies the requirement of proof of execution.

What constitutes the want of a sound disposing mind and memory is incapable of a definition suited to all cases. Every case is, to a great extent, to be tested by its own facts, circumstances and surroundings. We can do but little more than generalize in regard to the subject.

As the will before us is contested on the grounds of want of capacity in the testator to make a will, and also undue influence in executing it, if he had capacity, we may as well here refer to some authorities on these points, which show the opinions of courts and writers in similar cases, and which are regarded as tests in such cases since their announcement.

On the subject of testamentary capacity, Redfield on Wills (p. 124), says: “ the result of the best considered cases upon the subject, seems to put the question of understanding requisite to the valid execution of a will upon the basis of knowing and comprehending the transaction; or in popular phrase, that the testator should, at the time of executing the will, know and understand what he is about.” “ Old age, failure of memory, or habitual drunkenness, will not (per se) constitute incapacity to execute a will:” 1 Green Ch. Rep. 11; 5 Johns. C. 158; and in 2 Green 581, it is said, “ the power of making a valid will is not impaired by the approach of old age.” In Converse v. Converse, 21 Vt. 168, it is held, that “ if the testator was at the time capable of understanding the nature of the business and the elements of the will, that is, the nature and extent of his property, and the persons to whom he meant to convey it, and the mode of distribution, it is sufficient.” This is our rule as stated in McMasters v. Blair, 5 Casey 298: “ To understand in detail,” say this court, “ all that he is about, is quite sufficient.” In Daniel v. Daniel, 3 Wright 191, the substance of this rule is stated in the court below, but more definitely expressed by this court. “ A sound and disposing mind and memory,” say the court, “is one in which the testator is shown to have had at the making and executing his will, a full and intelligent consciousness of the nature and effect of the act he is engaged in; a knowledge of the property he possessed ; an understanding of the disposition he wished to make of it by the will, and of the persons and objects he desired to participate in his bounty. It is not necessary he should collect all these in one review. If he understands in detail all he is about, and chooses with understanding and reason between one disposition and another, it is sufficient.” This is but an expression of what was said in Storms v. Vanclive, 4 W. C. C. Rep., supra, where the court, in regard to the testamentary capacity in that case, puts to the jury the inquiry : “ To sum up the whole in the short, simple and intelligible form, was his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will ?”

These citations, to which many more might be added, contain in a generalized form a rational rule on this subject, which is entirely capable of application by a court and jury. It is not meant in any of them that the mind may not be weakened by old age, or sickness, or other causes. That may be the case and no alienation or abnormal condition'exist. Weakness alone will not invalidate a will, if mind and memory exist sufficient to understand the subject in hand, and to direct intelligently the dispositions desired to be made of property. The test of all this is to be of the time when the will is made, including some latitude of proof before the execution, and immediately, as contradistinguished from remotely, after it.

The most usual attack on the will of an aged testator, and it is made here, is undue influence, which is, of course, a concession of capacity, although weak. In a recent case, this court has given its view of what constitutes the requisites to overturn a will on this ground, and I will content myself with referring to it alone. In Eckert v. Flowry, 7 Wright 46, Strong, J., in speaking on the subject, said: “ It (undue influence) may be either through threats or fraud; but however exercised, it must, in order to avoid a will, destroy the free agency of the testator at the time when the instrument is made.” In the language of Woodward, J., in McMahon v. Ryan, 8 Harris 329, “it must be a present constraint, operating on the mind of the testator in the very act of making the testament.” The learned judge, proceeding to the facts of the case, said, “ unless, therefore, there was some evidence tending legitimately to prove that some fraud had been practised upon the testatrix at that time (the 21st of June, the date of the will,) or that some misrepresentation had then been made, or that some physical or moral coercion had been employed, such as to destroy her free agency, the court erred in submitting to the jury the question, whether undue influence had been exerted.” * * “Neither moral nor physical constraint is to be inferred from mental weakness alone. That undue influence which suffices to destroy an alleged will, is distinct from weakness, and has no necessary connection with it.” All this is fully supported by the best authorities, and is to be regarded as a true exposition of what it treats.

As to the assignments of error, then: — 1st. The first is upon an exception taken to the exclusion of a portion of the offer contained in the first bill of exceptions. That portion referred to alleged declarations of the defendant, without limitation as tó time, place or tbe circumstances of making them. The court rejected all but such as related to the sanity or mental capacity of the testator at or before the time when the alleged will was made, or within a short period thereafter. This was right on every principle; such declarations are of slight weight, at all events; not sufficient to impeach a will on the ground, either of want of capacity, or of undue influence; or materially to aid in it. They must be shown to have been made when the subject of them is a transaction of a present or recent nature, showing that the mind of the declarant is actually in contemplation of what it has been referring to. The testimony offered referred to alleged settlements and transactions about the testator’s farm, or the rents, issues and profits thereof, and conversations of the parties relative thereto subsequent to the year 1855, the year in which the will was made, and the admissions and declarations of the defendant in regard to his sanity and mental capacity. This much of the offer was objected to and the objection sustained, excepting so far as it related to a time prior to the execution of the will, or to the time of its execution, or within a short period thereafter. This was a just and proper discrimination. The mental capacity of the testator was to be judged of by its condition at the time he performed the testamentary act. “Nothing else in the case,” said Woodward, J., in Stevenson v. Stevenson, 9 Casey 472, “was worthy the consideration of the jury.” The offer, however, was unlimited both as to the time before and the time after the execution of the will. It would have been error to have admitted the offer as proposed, either for the purpose of impeaching capacity, or showing undue influence. Both grounds upon which this will was attempted to be assailed required the testimony to refer to the time of its execution. If the evidence tended to support either, some latitude in regard to the condition indicated by the proof might be properly allowed as corroborative of that condition. But the offer in this case showed neither incapacity nor undue influence at the time. It was not at all inconsistent with testamentary capacity or entire independence. The preponderance of testimony in the case was, that the testator went alone to his lawyer and got him to draw his will. He did not go there under compulsion, or instruction from anybody as to how his will was to be drawn, or who were to be the recipients of his bounty; at least there is no testimony to this effect. The theory of the plaintiff’s case rests on a presumption from a presumption, which is not. allowable, namely, that the testator, being an old man, must be presumed to have been weak, and therefore it is to be presumed, that the defendant, who was taking charge of his farm, and was an active-minded man, coerced his will. Weakness alone proves neither want of capacity nor undue influence. Hundreds of cases show that mere weakness does not incapacitate the making of a will, and it must not be implied-from such a circumstance alone that a devisee has been guilty of a wrong and fraud in procuring a devise of property which it might be supposed he would not have been likely to have obtained, except by coercion of his will. Such a thing would be a fraud, not only upon the testator, but upon his heirs, equally entitled to his beneficence as was the inter-meddling procurer of the devise to himself, and it is not to be presumed, but is to be-established by competent and clear evidence. The argument of the able and industrious counsel for the plaintiff in error on this point, I think was hardly ingenuous in one particular. It assumed as proved, the pre-existence of some sort of dementia. on the part of the testator prior to making his will, and that the proposed testimony, including the defendant’s declarations, went to disprove a lucid interval when the will was made. There was no evidence whatever of 'previous dementia, and consequently no place for any suchdargument. It would be a most extreme use of the admissibility of inference from facts, to allow it to be inferred that because an old man, worn out by time and toil, yields up to the management of a son, that which he can no longer from physical inability manage himself, that this prudent and wise result is to be ascribed to insanity or dementia. There were no other grounds than these, that I can see, for inferring lunacy; and the necessity of proving a lucid interval was not therefore in the case.

But it.is further argued, that the testimony offered would have shown that the state and condition of the testator’s mind wras unsound from weakness and decaying intellect after the making of his will, and therefore no presumption was to be made in its favor by subsequent acquiescence in it. I admit that proof to rebut a material presumption may be giveh. This has often been decided, and as in other matters of proof, the order in which it may be given is subject to the choice of the party offering it, and to the discretion of the court as to the time of receiving it. But the presumption to be rebutted must always exist or arise out of some state of facts in the case. Eor instance, in order to give room for such a presumption as acquiescence by the testator in a will once made would afford, it should appear that there was something tending to show undue influence. That not being in the case the presumption was of no consequence or importance, and the offer to rebut it was foreigirto the question raised. What is here said is applicable to the second bill of exceptions also. This offer was to show the testator’s condition of mind until his death. That he was weak and imbecile. It was overruled on objection by defendant, and the court charged the jury in answer to his 15th point, that inasmuch as he had objected to the testimony showing his condition offered by the plaintiffs, he should not have the benefit of the presumption of continued acquiescence, unless lie affirmatively proved his continued competency, when the other side might rebut. The defendant did not accede to this, and the case stood alone on the proof of his capacity, and the proof on the subject of undue influence at the time of making the will. The plaintiffs were, therefore, not injured in the rejection of testimony to rebut a presumption which was not allowed to be insisted on. For all these reasons, the assignments of error based on the bills of exceptions to the rejection of testimony are unsustained.

It is' not possible, with a due regard to other duties pressing upon us, to answer in detail, the positions taken by the learned counsel for the plaintiff in error. I shall notice them cursorily only.

The strong expression of opinion of the learned judge complained of, after recapitulating the testimony in support of the testamentary capacity of the testator, is the subject of exception. It was but an opinion, it did not bind the jury, for all the facts referred to were submitted to the jury for their consideration, to form their own judgment of, in the general charge. The expressions of opinion are very short of the cases cited to prove it error; such as Cadbury v. Nolen, 5 Barr 320; Keeler v. Vantuyle, 6 Barr 250; Stohl v. Levan, 3 Wright 177. I hold the opinions expressed are justified on the principle suggested in Graff v. The Pittsburg and Steubenville Railroad Company, 7 Casey 489. A court could hardly have permitted a verdict to have stood against the preponderating evidence in the case, over what, by all the rules suggested, was proper testimony in the case of a will attacked for want of testamentary capacity. Almost none of it applied to the time of making a will. But aside from this the court only expressed its opinion, and did not in any way bind the jury to follow it. There was no error in this.

Another complaint is, that the learned judge said, that it needed much less capacity to make a valid will, “ than is sufficient, in most cases, to transact ordinary businesscertainly, than was required to make a simple will like the one in hand, “ where the testator gives his wife what the law gives her, $400 to each of his children excepting one, and to him the remainder.” This point was at best an abstraction in its bearing on the case, but in general it was entirely true. There was no error, therefore, in this.

As to the point in the argument taking exception to what the learned judge said in relation to the testimony, detailing what Mr. Ross, deceased, who drew the will, said on the evening of the day he drew it, little need be said. I must say, however, that I am not disposed to concede the propriety of the admission of what the deceased subscribing witness said on the occasion. It was admitted, and the plaintiffs have nothing to complain of on that score. I do not think the court would have been justified at all in charging the jury that the evidence of what he said, “ was of grave importanee in estimating the actual fitness of Mr. Kyner to then dispose of his estate.” Ross represented him according to the testimony as “ excited and confused” at the time. He did not say he was imbecile, or any way incompetent to make a valid testament. He was “ excited and confused.” How long this continued, whether it was momentary or continuing, or whether it amounted to inability to declare intelligently his wishes, is not intimated — ■ is left in the dark and entirely'to conjecture. It did not, in our opinion, in the least impeach- the testimony which the suggestion of the witnesses imported, namely, the presence of testamentary capacity. Nor did the superadded declaration, that he would hold the will in his own hands, add any weight to the declaration. A great many wills might be set aside if such remarks of a deceased subscribing witness, not amounting even to an intimation of a belief of incapacity, were allowed to outweigh the effect of attestation by the witness. We have examined the elaborate arguments presented to convince us of error' in the court on the trial below, and the answer to it, and considered all the testimony, and we see nothing in any of the complaints made, that causes a doubt of the accuracy of the court.

The judgment below is therefore affirmed.


source: Caselaw Access Project

author: Sharswood, J.

license: Public Domain

text:
    Graham and Wife versus Long.
    1. A married -woman’s power to cbnvey or charge her real .estate in Pennsylvania is derived solely from Act of February 24th 1770, § 2.
    2. The requirements of that act as to separate examination and acknowledgment must be strictly pursued and so appear on the magistrate’s certificate.
    3. The bond and warrant of attorney to confess judgment of a married woman are absolutely void.
    4. A judgment on a scire facias ipsued on a judgment on such warrant is void, and a sheriff’s sale under it conveys no title to the purchaser.
    (5. A resulting trust in land of which the title is in a married woman cannot be proved by her acknowledgment.
    6. Land was conveyed to a mother and two' daughters; in an action by one, a married woman, her receipt-with the assent of her husband to her mother for “ six hundred dollars^money I had in the property my mother now owns,” was inadmissible on the question whether the conveyance as to her third was a mortgage.
    7. A mortgage by parol defeasance or a constructive trust may exist in a married woman; but it must he made out by a formal declaration, accompanied by a certificate of separate examination and voluntary acknowledgment.
    March 10th 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Perry county: No. 60, to May Term 1870.

      This was an action of ejectment, by William J. Graham and Margaret his wife, in her right, against Jane Long, for the undivided one-third of a tract of land.
    The whole tract was, on the 30th of March 1859, conveyed by Samuel Lupfer, for the consideration of $1800 to Mary Long, Jane Long and Margaret Long; Mary Long was the mother of Jane and Margaret — Margaret was married about March 1862 to William J. Graham. Mary Long died about May 1868, leaving these two daughters to survive her.
    The plaintiffs proved the foregoing facts and'rested.
    The defendant offered in evidence the following receipt:—
    “Received, April 18th 1865, of Mary Long, six hundred dollars, money I had in the property my mother now owns.
    $600.00. Margaret Graham.”
    It was objected, to, admitted and a bill of exceptions sealed. The defendant gave evidence that the body of the receipt was in the handwriting'of William J. Graham, the husband.
    She gave in evidence that Mrs. Long lived on the land in question until her death and that she owned no other real estate. She also gave in evidence the will of Mrs. Long, dated January 16th 1866, and proved June 1st 1868, by which she devised to her daughter Jane Long, “ my entire interest in the real estate we now live on and occupy.”
    The court Graham, P. J. charged: * * * “ But the defendant alleges that although the deed is absolute on its face and vested the legal title in Margaret Long, that in fact Margaret loaned to her mother at the time of purchase $600, one-third of the purchase-money ; and Margaret took a conveyance of an undivided third of the land to secure the payment of the six hundred dollars loaned to her mother at the time of purchase. To establish this, the defendant relies upon the written declaration of Mrs. Graham, made in 1865, * * * (the receipt). This the defendant contends is satisfactory evidence” of her allegation. * * * “If tLis is the truth of the case, — if at the time of purchase Mrs. Graham loaned to her mother $600, and did not invest it in purchasing an interest in the property, and this loan has been repaid, — the deed, although absolute on its face, would be in law a mortgage to secure the loan of money; and on the repayment of the loan, the deed would be of no validity; and in this aspect of the case your verdict should be for the defendant. But to justify a verdict for defendant, the evidence ought to be satisfactory and convincing to your mind that Margaret Long, at the time of purchase, loaned the $600 to her mother, and did not invest it in the property as a purchaser. To overcome the effect of the deed, which conveys to Margaret one-third of the property, you ought to be well satisfied that the conveyance was taken by her to secure a loan, and not as a purchase of the undivided third part of the property conveyed. If the evidence fails to satisfy you that the deed was taken and intended by Margaret as a security for the loan of money, then the plaintiffs must recover, and your, verdict should be in their favor. «•’•'"Tjafe payment afterwards of $600 to Mrs. Graham by her mother, can have no effect in divesting Mrs. Graham’s title, if she had purchased originally an undivided third. The payment of the purchase-money to Mrs. Graham, she being a married woman, would not divest her title or defeat her recovery; and it is only in the event that the evidence satisfies you that Margaret Long, now Mrs. Graham, took the deed- in her name as security for a loan of money, and not as a purchaser, that you would be justified in finding for the defendant.”
    The verdict was for the defendant. The plaintiffs took a writ of error and assigned for error the admission of the receipt and the charge of the court.

      C. A. Barnett, for plaintiffs in error.
    The receipt was not evidence to show a sale of Mrs. Graham’s real estate: Rumfelt v. Clemens, 10 Wright 455. To constitute a mortgage, there must be a defeasance contemporaneously, or if afterwards, in pursuance of an agreement made at the execution of the deed: Directors of Poor v. Royer, 7 Wright 146; Kunkle v. Wolfersberger, 6 Watts 125; Rhines v. Baird, 5 Wright 256; Colwell v. Woods, 3 Watts 188; Kelly v. Thompson, 7 Watts 401; Reitenbaugh v. Ludwick, 7 Casey 131; Wilson v. Shoenberger, 7 Casey 295; Guthrie v. Kahle, 10 Wright 331; Houser v. Lamont, 5 P. F. Smith 311; Penna. L. Ins. Co. v. Austin, 6 Wright 257. The question of mortgage or no mortgage ivas for the court: Welsh v. Dusar, 3 Binney 329; Wharf v. Howell, 5 Binney 499; Stoever v. Stoever, 9 S. & R. 434; Dennison v. Wertz, 7 S. & R. 372; Halo v. Schick, 7 P. F. Smith 319.

      B. F. Junkin, for defendant in error,
    referred to and commented on: Rumfelt v. Clemens, Penna. L. Ins. Co. v. Austin, Houser v. Lamont, supra.

   The opinion of the court was delivered, July 7th 1870, by

Sharswood, J.

Nearly five centuries ago it was recognised to be a settled maxim of the law that no feme covert could be barred of her frank-tenement or inheritance by her confession merely, without an examination in due course of law : Mary Partington’s Case, 10 Rep. 42 1, citing the Year Book 44 Edw. 3, 28 a. This sure and uncontrollable ground'of judgment has never been questioned since at law or in equity. The cases which have been decided in this court without an exception most abundantly sustain it. It has frequently been attempted to escape from or evade it where it has seemed to work great and palpable injustice, but. always without success. It must always triumph over the hardship of any particular case; for it is a harrier which has been erected by common and statute law, to protect the property of married women which nothing but the sovereign authority of the legislature is competent to overthrow or change. A married woman’s power to convey or charge her real estate in this Commonwealth is derived solely from the Act of February 24th 1770, § 2, 1 Smith 307. The requirements of that act as to her separate examination and acknowledgment must be pursued and must so appear upon the face of the magistrate’s certificate: Watson v. Bailey, 1 Binn. 470; Evans v. The Commonwealth, 4 S. & R. 272; Thompson v. Morrow, 5 S. & R. 289; Watson v. Mercer, 6 S. & R. 49; Fowler v. McClurg, Id. 143; Jourdan v. Jourdan, 9 Id. 268. The bond and warrant of attorney to confess judgment of a married woman are absolutely void, and so is a judgment upon a scire facias issued upon a judgment entered under such warrant, and a sheriffs sale founded upon it conveys no title to the purchaser: Dorrance v. Scott, 3 Wharton 309; Caldwell v. Walters, 6 Harris 79. “A married woman has no capacity to contract for the sale of her real estate or to convey it except in the precise statutory mode conferring the power Per Agnew, J., in Glidden v. Strupler, 2 P. F. Smith 402; citing a long bead-roll of cases. It is manifest, then, that the receipt given in evidence in the court below under objection and exception ought not to have been admitted to affect her legal title. Even had there been an equity or resulting trust, it could not be proved in that way. To allow it would render the provision of the Act of Assembly nugatory, and take from the wife that protection which the law intends to throw around her. If such result could be accomplished by the adoption of a different form merely, for example, a distinct acknowledgment that the land had been bought and paid for with the money of another, and that she held in trust for him, we may be sure that it would not fail to be resorted to. The law means that in the act of disposing of or charging her realty a certain form and solemnity shall be observed, for the purpose of giving her the time and opportunity to reflect, and oppose the marital influence which may be brought to bear upon her. Even with all this form, it too often happens that by the threats or caresses of her husband she is induced to do what is ever after a source of regret.

After receiving this paper in evidence the learned judge below left it to the jury to say whether the interest of Mrs. Graham in the premises had not been that of a mere mortgagee. The theory of the defence seems to have been that she had loaned six hundred dollars to her mother, and that the deed had been taken to her mother, her sister and herself as security for the loan, and that her receipt with her husband’s assent was a discharge of the debt and satisfaction of the mortgage. The single fact upon which this whole theory appears to have been constructed was that the consideration of the deed was eighteen hundred dollars, which would be six hundred dollars by each of the grantees. Had the theory been supported by other evidence aliunde, the receipt in the handwriting of the husband and signed by the wife would no doubt have been evidence. But to establish a mortgage or trust it was incompetent. A married woman may be a mortgagee by an absolute deed with a parol defeasance, or her legal title may be affected by a constructive or resulting trust, but it must be made out in some other mode than by her admission or acknowledgment orally or in writing. The most formal and solemn declaration of trust by deed of a feme covert must be accompanied with a certificate of separate examination and voluntary acknowledgment, or it is not worth the parchment or paper upon which it is written.

There was not a spark of evidence in the case below of mortgage or other equity — nothing to rebut 4ho legal conclusion from the deed conveying the legal title to her in fee simple of one-third of the premises. Even the receipt, had it been properly admissible for such a purpose, was no evidence of it. It containeckio admission of mortgage or trust. She acknowledges the receipt of six hundred dollars, “ money I had in the property my mother now owns.” Conceding that as her mother owned no other real estate than one-third of the land in dispute that the paper refers to that, it would be a more reasonable inference that the six hundred dollars had been advanced to her mother to enable her to purchase her interest. That one-third was the only property she owned as far as appeared — not the whole land. It is a mere conjecture that she referred to the purchase-money of her own share, but it is a more reasonable one than the idea of there having been a mortgage to secure money originally advanced to her mother. She and her husband may have meant, and for myself I conjecture did mean, to sell out and release to her mother the interest which she had in the land for the price which she had originally paid for it: but it is too clear for argument that this could not be done in that way so as either to convey her legal title, charge it with an encumbrance or lien, or affect it with an equity or trust. If this was the nature of the transaction, and it had even been clearly proved by other evidence than her acknowledgment, it would have availed nothing, nor could she have been compelled as the price of her recovery of the land in ejectment to have refunded the purchase-money so received, as is conclusively shown in the opinion of Mr. Justice Agnew, in (Hidden v. Strupler, before cited.

Both assignments of error must therefore be sustained.

Judgment reversed and venire facias de novo awarded.

Thompson, C. J., dissented.


text:
    Fahrney versus Holsinger.
    1. A devise was “ I give to my son Daniel and my daughter Susanna the balance of my farm at $55 per acrethe testator directed that the proceeds of all his estate should be equally divided amongst his children, so that those who had more than their share in their bequests should pay over to two other daughters named such sum as would equalize their shares, so that all his children should “ get share and share alike.” By a codicil it was ordered “that if my daughter Susanna die without heirs then the part bequeathed to her shall fall to Daniel at the same rate as in the will, and be equally divided between those of my other children or their heirs and representatives then living, to be paid as the payments are directed in my will.” Held, 1. That the devise was a fee to Daniel and Susanna. 2. That heirs in the codicil meant issue. 3. That the contingency of death without issue was confined to the testator’s lifetime.
    2. The charge of $55 per acre made the devise a fee without reference to the Act of April 8th 1833, g 9.
    3. The nature of the devise over has always been considered in determining whether a definite or indefinite failure of issue was intended.
    4. The devise over was to take effect in Daniel’s life, for he was to do a personal act, viz., pay for Susanna’s share, so as to be divided amongst the other children, &c., then living.
    5. When a testator indicates that all his children shall take equally, in cases of doubt the will shall be so construed as not to disappoint this primary and paramount intention.
    i 6. Susanna having survived the testator, the provision in the codicil did not come into operation and she took an absolute fee simple under the devise.
    7. Taylor v. Taylor, 13 P. F. Smith 481, recognised.
    May 10th 1870.
    Before Thompson, C. J, Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Franklin county: No. 88, to May Term 1870.
    On the 1st of April 1870 an amicable action of covenant was entered, in which Susanna Holsinger was plaintiff, and D. D. Eahrney defendant; and on the same day a case stated was filed in the action, in which the following facts were agreed to :—
    On the 15th of December 1852 Jacob Holsinger died, leaving his wife Elizabeth and five children, viz., Daniel, Jacob, Elizabeth, Christina, and Susanna the plaintiff in this action. At his death he was seised of a tract of land which, by his will, dated December 1847, he disposed of as follows:—
    “ Item 2. I give and bequeath to my son, Daniel Holsinger, and daughter Susanna Holsinger, the balance of my mansion farm at the rate of $55 per acre.”
    “ Item 3. I give, &c., to my wife, Elizabeth Holsinger, the possession of my mansion-house a.nd necessary privileges around the same, with all whatsoever it contains, &c., during her natural life, and my son Daniel and daughter Susanna shall give her yearly fifteen bushels of good wheat, and one hundred and fifty pounds of pork, and the same quantity of good beef; they shall also keep one cow well fed for her use during her lifetime, and also furnish her a sufficiency of good wood, together with the foregoing item to pay her the sum of $80 in cash annually; and for a compensation for what Daniel and Susanna pay their mother annually, they shall retain in hand out of the estate the sum of $2000, without paying interest thereof during her life or within three months thereafter; and my son Jacob also shall pay her the sum of $24 in cash annually, for which he also shall retain in hand the sum of $400, without interest during her life or within three months after her decease.”
    “ Item 4. After my decease, as Soon as it can be advantageously done, all my real and personal estate shall be sold, and the proceeds of the same, if any left, shall be equally divided among all my children, and when the amount' of my whole estate will be ascertained, it shall be divided into five equal shares in order to find out the amount of one share, so that those of my children that have more than their share in -the property bequeathed to them shall pay over to my daughter Elizabeth, intermarried with Dr. Jacob Fahrney, and to my daughter Christina, intermarried with Isaac Deardorf, such amounts as will equal their shares with the others, so that all my children will get share and share alike. But my daughters Elizabeth and Christina shall not receive anything until one year after my decease, then they shall receive one-half of their portion, and the other half in two years after my decease.” * * *
    At the time the said will was written the said testator was seised and possessed of other property, real and personal, not disposed of by devise or bequest to any particular person, but left to be sold at his death, and the proceeds divided among the ■children of said testator, share and share alike.
    By a codicil to this will, made March 16th 1850, the testator provided:—
    “ And lastly my express will. and desire is, and I do hereby order that if my daughter Susanna should die without heirs, then the part or share bequeathed to her in my mansion farm shall fall to my son Daniel, at the same rate per acre that is named in my will, and equally divided, share and share alike, between those of my other children, or their legal heirs or representatives then living, and to be paid in the same manner as the payments are directed to be made in my aforesaid will. And further, if either my son Daniel or my daughter Susanna should have a desire to sell or dispose of his or her share in the said mansion farm, then and in that case to avoid any difference or dispute, &c., to sell one to the other, and. in case they could not agree in the price thereof, then in order that no suit, &c., shall be brought, &c., the same shall be referred wholly to the award of two of their esteemed and qualified neighbors, each one to choose one, with power for them to choose an umpire, and what the said, arbitrators shall order, See., shall he binding and conclusive, to and on both concerned.”
    Elizabeth Holsinger, the widow,died August 7th 1854. Daniel and Susanna havé held the said mansion farm as tenants in common under the deyise of said will. Susanna has never been married. Wishing to sell and dispose of her share in said mansion farm, she offered it to her brother Daniel, in compliance with the expressed wish and desire of her father in his will, but Daniel having refused, and still refusing to buy the same on any terms, she conveyed her interest in said farm so as to bar any supposed entailment, and had a reconveyance made to her.
    On the 2d of March 1870, Susanna entered into articles of agreement with D. D. Eahrney, the defendant, for the sale of her undivided half of said farm to him, whereby he, the said defendant, agreed to purchase the said share or interest of said Susanna in said mansion farm. The plaintiff is willing and ready to execute a conveyance of the same to him, but said defendant refuses to accept said conveyance and pay the purchase-money therefor, and suggests that it is doubtful whether she took an absolute, indefeasible estate in fee simple in her share under said will, or whether she has now such an estate under said will and conveyances.
    The question submitted to the court is, “ Did Susanna Holsinger take an absolute and indefeasible estate in fee simple in her share under said will, or has she now such an estate under said will and conveyances ?”
    If the court decide in the affirmative, then judgment to be entered for the plaintiff, damages to be assessed by counsel; if in the negative, judgment to be entered for the defendant.
    The court (King, P. J., delivering the opinion) entered judgment for the plaintiff.
    This was assigned for error by the defendant on the removal of the case to the Supreme Court.

      J. W. Douglas, for plaintiff in error.
    The power given to the executors to sell was a conversion, and vested the title in them: Act of February 24th 1834, § 13, Pamph. L. 35, Purd. 282, pl. 62; Chew v. Nicklin, 9 Wright 87. “ Heirs” in the codicil is not used in the legal sense: Mitchell v. Sidebotham, Douglass 734; Johnson v. Currin, 10 Barr 500. The failure of heirs was definite: Smith on Ex. Interests 301; Turner v. Fowler, 10 Watts 325; Taylor v. Taylor, 13 P. F. Smith 481.

      Clarke & Garver, for defendant in error,
    The intention of the testator which is to govern must be the legal intention: Johnson v. Morton, 10 Barr 245. The words show that he intended an absolute disposition: Schriver v. Meyer, 7 Harris 87; Wood v. Hills, Id. 513; Shinn v. Holmes, 1 Casey 142. The word “ heirs” must mean “heirs of the body,” the devise over being to the brother, she could not die without heirs generally whilst he lived: Braden v. Cannon, 12 Harris 168; Wall v. Maguire, Id. 248; Covert v. Robinson, 10 Wright 274; Shutt v. Rambo, 7 P. F. Smith 149. Does the limitation oyer on Susanna’s dying without issue change the fee simple into a fee tail? Eichelberger v. Barnitz, 9 Watts 450; Vaughan v. Dickes, 8 Harris 509; Criley v. Chamberlain, 6 Casey 161; Curran v. McMeen, 5 P. F. Smith 487. A power to dispose is indonsistent with an executory devise: Jackson v. Bull, 10 Johns. R. 19; Jackson v. Robbins, 16 Id. 537. The dying without issue is intended in the life of the testator: Caldwell v. Skilton, 1 Harris 152; Clayton v. Lowe, 5 Barn. & Ald. 636; Fulton v. Fulton, 2 Grant 28; Mary Biddle’s Estate, 4 Casey 59; Schoonmaker v. Stockton, 1 Wright 461.
   The opinion of the court was delivered, July 7th 1870, by

Sharswood, J.

There can be no question that the devise of the balance of the mansion farm to Daniel and Susanna, vested in them an estate in fee simple: “ unless it appear by a devise over or by words of limitation or otherwise in the will that the testator intended to devise a less estate.” Such is the provision of the ninth section of the Act of April 8 th 1833, Pamph. L. 250. Even, however, without the aid of that provision, the express charge of a sum in gross to be paid by the devisees as here the rate of fifty-five dollars an acre makes it a fee without other words: 2 Jarman 171; Burkart v. Bucher, 2 Binn. 455; Lobach’s Case, 6 Watts 171.

We think it very clear that the clause directing all the real and personal property to be sold and the proceeds divided, does not comprehend those parts of the estate before specifically devised. The devises to Jacob and to Daniel and Susanna were valued by the testator, and in the provision for distribution of the proceeds of sale he directs that they shall be so divided that those of his children that had more than their share in the property bequeathed to them in the will should pay to those who had not, namely, Elizabeth and Christina, such amounts as will equal their shares with the others so that all the children should get share and share alike. We may dismiss altogether the argument that the entire estate'by this absolute direction to sell was converted into personalty, though what operation that would ha^e upon the construction of the parts of the will now in controversy has not been explained, and it is not easy to see.

What effect then ought the words of the codicil to have upon the absolute estate in fee simple given to Susanna by the will ? It seems to be conceded that by the words “ if my daughter Susanna should die without heirs,’-’ the testator did not intend heirs in the general and technical sense; because her share in the farm is then to fall to her brother Daniel, and certainly as long as he was living, or indeed any of his heirs, she could not die without heirs. Indeed if the devise over were to a stranger it would have been void: for as a remainder it would have been a fee mounted upon a fee, and as an executory devise bad because contrary to the rule against perpetuities.

The word heirs then must be restricted to “ heirs of the body, issue or children.” There is nothing to confine it to children, so that if Susanna should die without children, but leaving grandchildren or remote descendants, they should be cut off. It must therefore mean heirs of the body or issue. It does not seem to matter which, as both must have the same meaning.

There are then three theories of construction presented. The first maintains that by a dying without heirs an indefinite failure of issue was provided for, and that the consequence is to reduce Susanna’s estate in fee devised by the will to an estate tail, according to the principle of Eichelberger v. Barnitz, 9 Watts 447. But the reasons against such a construction seem to be very cogent. The nature of the devise over has always been considered in determining whether a definite or an indefinite failure of issue was intended. The devise over in this instance was to take effect in Daniel’s lifetime, for he was to do a personal act, namely, he was to pay or be charged for the share of Susanna in that event at the rate of fifty-five dollars an acre: and this sum was to be divided equally between the testator’s other children or their legal heirs or representatives then living. It is impossible to conceive that the testator could have contemplated in this devise over an indefinite failure of issue at any period however remote: when the heirs or legal representatives of Daniel were to pay fifty-five dollars per acre for the land to be divided among the heirs or legal representatives of his other children. Had he intended it, it would undoubtedly be void as an executory devise, and to prevent that result the courts in such cases vest an estate tail in the first taker. But if it is clear that the testator had no eye to such a remote period, the construction of an indefinite failure of issue must be rejected. Mr. Smith in his Original View of Executory Interests p. 559, after stating that where on-failure of issue the property is devised in trust for payment of debts, the failure shall not be construed as indefinite, gives this as the reason: because it could not be supposed that the testator would provide for the payment of debts on an indefinite failure of issue, which might not happen for two or three hundred years.” In Doe d. Smith v. Webber, 1 B. & Ald. 713, there was a devise to M. H. and her heirs forever; and in case M. H. shall happen to die and leave no child or children, then to I. B. and her heirs for ever, paying the sum of £1000 to the executor or executors of M. H. or to such person as M. H. by her will shall appoint. Lord Ellenborough held that the words “ child or children,” were here synonymous with issue, and that the devise over took effect when M. H. died leaving no issue living at her death. He said that it was like the case of Roe v. Jeffrey, 7 T. R. 589, which was a devise to J. F. and to his heirs for ever,but in case J. F. should depart this life and leave no issue, then the testator, devised over an estate' for life only. Falling within the same principle is the recent case of Taylor v. Taylor, 13 P. F. Smith 481, decided by this court, in which it was held that a devise over to the testator’s executors to sell and divide the proceeds after a failure of issue of the first taker indicated clearly that the testator intended a definite failure of issue.

The second theory of construction is, that this being an ultimate devise to Daniel in fee upon a definite failure of issue, Susanna’s estate in fee was subject to this executory devise over upon that contingency: an executory devise which she could neither bar nor destroy. But while it is impossible to admit that the testator could have contemplated an indefinite failure1 of issue, the difficulty is not much less of construing the devise over to have reference to the death of Susanna. That might be deferred until many years after his estate was settled. He contemplated that this might be in a short time: he directed that it should be as soon .after his decease as it could be done advantageously. Let us suppose that Susanna now, at the expiration of eighteen years from the death of the testator, should die without issue. Daniel and Susanna have paid Ur been charged in the settlement of their father’s estate for the- mansion-farm at the rate of fifty-five dollars an acre. All the other real and personal estate of the testator has been sold, and the proceeds divided in the manner directed in the will. Then Daniel is to pay fifty-five dollars an acre for Susanna’s share of the farm to the executors or administrator de bonis non, and this sum is to be divided, share and share alike, between his other children or their legal heirs and representatives, and to be paid in the same manner as the payments are directed to be made in the will. These payments were to be made so that those of the children that had more than their share in the property bequeathed to them, should pay over to Elizabeth and Christina such amounts as should make them equal. If he referred this division to the death of Susanna at any period, why does he do more than" provide for its equal division ? If he considered the price fixed atS the fair value of the land, why was Daniel excluded from his share of the amount ? On the other hand, if its value might be very much enhanced, what reason is there to think that he intended for him so considerable an advantage over the others ? "When a testator indicates, as this one has most unmistakeably, that all his children shall take what he leaves, share and share alike, it is the duty of the court, in a case of doubt, to put such a construction on- the will as will not disappoint this the primary and paramount purpose. Let it he added to all this, that the clause which follows this provision of the codicil which directs that if either Daniel or Susanna should desire to sell or dispose of his or her share, the other should have a pre-emption right at a price to be fixed by referees mutually chosen, is very significant of his opinion that each of them would have a vested estate in fee capable of such sale and disposition.

We are driven, then, to adopt the third construction contended for, which is, that by the codicil he intended to provide only for the contingency of the death of Susanna without issue in his lifetime. ■ This satisfies all the words of the codicil, and is consistent with the whole scheme of the will. The valuation-money of the entire farm falling to Daniel was in that event to form a part of his whole estate, and Daniel was to be charged and make such payments as would render all the shares of the children equal, just as Jacob wap for the valued part devised to him. Thus, the words of the codicil requiring the valuation to be paid in the same manner as the payments are directed to be made in the will are fully satisfied. It is not an immaterial circumstance that the codicil was an after-rthought; the will was complete without it. The testator thought only to provide for a contingency which might occur in the case of Susanna — but which, perhaps, was not so likely to occur in the case of the other children — her death without issue .before him or before the period of distribution should arrive. Mr. Jarman remarks that “ sometimes, where an estate in fee is followed by apparently inconsistent limitations, the whole has been reconciled by reading the latter disposition as applying exclusively to the event of the prior devisee in fee dying in the testator’s lifetime, the intention being, it is considered, to provide a substituted devise in the case of lapse:” 1 Jarman 419; and there are many cases in our own and other reports, in which, under similar circumstances, the same principle has been adopted: Doe v. Sparrow, 13 East 359; Clayton v. Lowe, 5 B. & Ald. 636; Caldwell v. Skilton, 1 Harris 153; Mary Biddle’s Estate, 4 Casey 59; Schoonmaker v. Stockton, 1 Wright 461; Shutt v. Rambo, 7 P. F. Smith 149.

The result of the whole then is, that Susanna having survived the testator, the provision of the codicil never came into play, and that she is vested by the will with an absolute and indefeasible estate in fee simple.

Judgment affirmed.


author: Agnew, J.

text:
    Gillan’s Executors versus Dixon et al.

    1. A child died intestate, unmarried and without issue, her personal estate vested in her father and mother jointly and absolutely under Act of April 8th 1833, $ 3 (Intestates). ,
    2. The interest of the parents in a note due her was enforceable only through administration on her estate.
    3. Until distribution of the child's estate, the interest of the parents remained joint.
    4. The father died, the notes not having been paid, and there having been no administration of the child's estate, there was no question about reduction into possession by the father, although the notes were found in his possession at his death.
    5. On the death of the father, the title to receive the estate of the child devolved on the mother who survived him.
    6. The father and mother did not hold as ordinary joint-tenants'but by the entireties.
    7. 'The Act of April 11th 1848 (Married Women) did not change this relation.
    May 10th 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Franklin county: No. 106, to May Term 1870.
    This was an amicable action of assumpsit, entered October 26th 1868, between William D. Dixon and Martha his wife in her right, and John Walker and Sarah Ann his wife in her right, plaintiffs, and William Gillan, John Gillan and Samuel H. Gillan, executors of William Gillan, deceased, defendants.
    Elizabeth Gillan, a daughter of the decedent, owned two notes, one for $1000, due by the commissioners of Franklin county, and one for $200, due by John Walker. She died in September 1866, intestate, unmarried and without issue, leaving to survive her, her father and mother, Sarah Gillan. At the time of her death she was living with her father. William Gillan died February 18th 1867, leaving his wife, the" above-named Sarah Gillan, and six children, William, John, Samuel H. (the defendants), Martha, Sarah Ann (the plaintiffs), an(l Mary. By his will he gave legacies to his three daughters, and gave the residue of his estate to his three sons. The commissioners’ note was collected April 1st 1867, by the defendants, as part of William Gillan’s estate: the other note was unpaid. Sarah Gillan, the widow, died intestate January 29th 1868. Administration of her estate was granted to the defendants.
    The question in the case was, whether the notes of Elizabeth Gillan became the property of h'er father in his lifetime, and thus passed into his estate, or whether they survived to the mother and were to be distributed as her estate.
    It was “agreed that- no exception shall be taken either to the parties to the action or to the form of the action. That the plaintiffs are to have the same right to recover in this action as though they were the administrators of Sarah Gillan, widow of William Gillan, Sr., deceased, or of Elizabeth Gillan, a deceased daughter of said William Gillan, Sr.”
    On the trial, October 20th 1869, before Rowe, J., the above facts were proved; it was also proved that “ there was no change of the (commissioners’) note from Elizabeth Gillan to William Gillanthat William Gillan, in the winter before his death, notified the commissioners that he would collect the note on the following 1st of April. They gave in evidence this receipt on the note:—

      “ Chambersburg, April 1st 1864, received of J. G. Elder $50, interest in full to date on within note.
    “ William Gillan, Sr.,
    “ For Elizabeth Gillan.”
    The defendants gave evidence that the notes were found after William Gillan’s death in his desk, with his other papers, and were inventoried with his personal estate. The defendants, as administrators of their mother, never treated these notes as part of her estate, but held them as part of their father’s estate. Elizabeth held the papers till her death. For the plaintiffs it was testified that these notes were about the time of Elizabeth’s death in her father’s desk, with other notes belonging to her.
    On the trial, it was agreed by the parties that if there should be a recovery by the plaintiffs, the amount recovered should be held by the defendants as if administrators, &c., of Elizabeth Gillan.
    The plaintiffs’ points were:—
    1. The facts as proved do not amount to such a reduction into possession of the choses in action of Elizabeth Gillan, by her father William Gillan in his lifetime, as to destroy at his death the right of the mother to the whole estate.
    2. The money in dispute belonged originally to Elizabeth Gillan, and at her death would in law be recoverable by her administrator. If her administrator would in law have a right to recover this money from the defendants, the plaintiffs may do so, because by the agreement filed in this case they are entitled to occupy the position of the administrator of Elizabeth Gillan..
    3. That under no circumstances would more than one-half of the fund pass to William Gillan, deceased.
    The defendants’ 3d point was:—
    3. That the question of reduction is for the jury, and inasmuch as William Gillan, after Elizabeth’s death, received the interest from the commissioners on the county note, having fixed the day for the payment of the note, having exercised acts of ownership over the chose in action, in his lifetime, this was a reduction of the property to his possession, and made it part of his estate, and plaintiffs cannot recover.
    The court charged: * * *

      “ It does not appear to be important where the notes were found, or whether William Gillan, Sr., deceased, had them in his possession before his daughter’s death, or formally took them into his possession afterwards. ' -
    “ For it is indisputable that he did not receive the money which they secured, or any part of it, ór surrender them and take new notes in his own name, or assign them. He simply kept them as they were, and they were found in his desk after his death, as Elizabeth had held them and left them.
    “ These notes were inventoried by the executors of William Gillan as part of his estate; they have received the money for the $1000 county note, and they hold the Walker note and the money as their father’s executors. Being his residuary legatees, they in fact hold the Walker note and the money received on the county note as their own. These defendants are also the administrators of Sarah Gillan, the mother. But they say they never treated this money as part of their mother’s estate, but hold and claim it as part of their father’s estate. It was to determine whether this fund, or any part of it, is part of the father’s estate that this amicable action was instituted. Perhaps a better form of proceeding might have been adopted to settle this question, but there is no difficulty in settling it in this form, under the terms of the agreement of counsel.
    “ If the choses had been converted into money, or anything been done by William Gillan in the lifetime of himself and wife to destroy their joint nature (for upon the death of Elizabeth they became joint choses in the father and mother), then, doubtless the father, William, would have taken one-half of the sum to himself, and the mother, Sarah, the other half, and upon the death of William his executors woqld have rightfully claimed and held his one-half as part of his estate. But at the time of William Gillan’s death these notes or choses were~the joint property of himself and his wife, and as such survived to the surviving wife. For a suit brought upon these notes in the lifetime of the father and mother must have been in their joint names, and it is a general rule that in all cases when it is necessary to- bring the suit in the joint names of husband and wife during coverture, the cause of action survives to the wife for for her Benefit. When money is secured to the husband and wife by a promissory note, the wife is held to be entitled to survivorship in the money.

      “ [We are, therefore, of opinion that these notes constituted no part of the estate of William Gillan, Sr., deceased], and that the plaintiffs, under the agreement, are entitled to recover the amount of the two notes, to be held by them and accounted for as administrators of Elizabeth Gillan. Thus, after payment of Elizabeth’s debts, the balance will be distributed among the next of kin of Sarah Gillan, the mother, who survived.”
    The court affirmed all of plaintiffs’ points, and negatived the defendants’ points.
    The verdict was for the plaintiffs for $1485.56.
    The defendants took a writ of error and assigned for error the answers to the points and the part of the charge in brackets.
    The case was submitted in the Supreme Court on the paper-books. Neither of the paper-books was signed by counsel.
    The defendants in error cited Act of April 8th 1833, § 3, Pamph. L. 316, Purd. 563, pl. 15; Frankenfield v. Gruver, 7 Barr 448; Lodge v. Hamilton, 2 S. & R. 493; Woelper’s Appeal, 2 Barr 71; Wintercast v. Smith, 4 Rawle 182; Hartman v. Dowdell, 1 Id. 279; Hind’s Estate, 5 Whart. 138; Timbers v. Katz, 6 W. & S. 290; Gray’s Estate, 1 Barr 329; Stewart’s Appeal, 3 W. & S. 476; Swoyer’s Appeal, 5 Barr 377; McDowell v. Potter, 8 Id. 189; Gochenaur’s Estate, 11 Harris 460; Tritt v. Cowell, 7 Casey 228; Stuckey v. Keefe, 2 Id. 397; Diver v. Diyer, 6 P. F. Smith 106; Tyler on Infancy and Coverture 382.
   The opinion of the court was delivered, May 19th 1870, by

Agnew, J.

When Elizabeth Gillan died, her personal estate vested in her father and mother jointly and absolutely under the 3d section of the Act of 8th April 1833 relating to intestates. This interest of the father and mother -was a chose in action, enforceable only through administration upon the estate of Elizabeth. That their interest is joint in its nature has been held and is evident from the intent of the act: Frankenfield v. Gruver, 7 Barr 448; Hamm v. Meisenhelter, 9 Watts 349. Until distribution of the estate of Elizabeth and payment of the sum coming to the father and mother, their interest necessarily remained joint. There can be no question of reduction to possession by William Gillan, the father, in this case, for the estate of Elizabeth remained without administration, and the notes evidencing the debts due to her estate remained unpaid at William Gillan’s death. It is clear therefore that the title to receive the share thus devolving on the father and mother by the intestacy of Elizabeth survived to Mrs. Sarah Gillan on the death of William Gillan, her husband. This resulted from their relation as husband and wife. Owing to their legal unity they did not stand as ordinary joint tenants to each other, but were seised or possessed as the case might be of the estate or interest in the property by entireties and not per my et per tout. This is well settled in this state both as to real and personal estate: Johnson v. Hart, 6 W. & S. 319; Robb v. Beaver, 8 Id. 107; Fairchild v. Chastelleux, 1 Barr 176; Stuckey v. Keefe, 2 Casey 397. Nor does the Act of 1848 relative to the property of married women change this principle of the common law: Diver v. Diver, 6 P. F. Smith 106. That act was intended to protect the property of the wife from the dominion or control of the husband, but not to change the nature of her estate, or to destroy the legal unity of person which characterizes their relation to each other. We perceive no error, therefore, in the doctrine held by the court, and the

Judgment is affirmed.