text:
    Gourley versus Kinley.
    1. A widow cannot take the land of her husband at the appraisement under proceedings in partition.
    2. Where a widow’s portion is laid off to her, she has a life estate in it as land.

      3. When the husband’s land is accepted at the appraisement or sold, she has a life estate not in any specific portion of the land, but in an equivalent share of the rents and profits of the whole measured by the interest on her share of its value, ascertained by appraisement or sale.
    4. In either form of assignment, she has an estate in the land, and by force of the statute it vests in her eo instanti the husband dies.
    5. The widow’s interest in her husband’s land is not like dower at common law.
    6. Dower will not lie for the widow’s share of land of which her husband died seised.
    7. The widow may maintain dower if the land is in possession of one who claims adversely to the heirs and denies her right, and is not amenable to the Orphans’ Court.
    8. When the husband dies seised and in possession, she must have her share assigned under the partition acts.
    9. Since the Act of April 21st 1846, the common-law courts have concurrent jurisdiction in partition with the Orphans’ Court.
    10. The widow cannot join with the heirs in ejectment for her husband’s land.
    11. The widow cannot bring ejectment for her interest in her husband’s land.
    12. An heir cannot before partition maintain ejectment against a widow in possession of land of which her husband died seised.
    13. Kurtz’s Appeal, 2 Casey 465, Zeigler’s Appeal, 11 Id. 189, remarked on; Seider v. Seider, 5 Whart. 208, recognised.
    October 25th 1870.
    Before Thompson, O. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Armstrong county: No, 65, of October and November Term 1870.
    This was an action of ejectment by James Kinley, by his guardian James Hunter, against Harrison Grourley and Sarah Grourley, brought to June Term 1868.
    James Kinley, being the owner of the land in controversy, died intestate, leaving a widow, Sarah, defendant (who afterwards married Harrison Grourley, the other defendant), and a son, the plaintiff, for whom James Hunter was appointed guardian by the Orphans’ Court. The wife continued in possession of the land.
    The plaintiff having given the foregoing facts in evidence, the defendant moved for a nonsuit which was refused.
    The defendant then submitted these points:—
    “ 1. Under the evidence in this case there cannot be, in any event, a recovery of more than the undivided two-thirds of the land.
    “ 2. There being no evidence of an ouster in this case, the verdict must be for the defendant.
    The court (Buffington, P. J.) answered both points in the negative.
    The verdict was for the plaintiff.
    The defendant having removed the case to the Supreme Court, assigned the answers to their points for errors.

      D. Barclay, for plaintiffs in error,
    cited Act of April 3d 1833, § 1, Pamph. L. 315, Purd. 362, pl. 1; Bachman v. Christman, 11 Harris 163; Shaupe v. Shaupe, 12 S. & R. 9; Lancaster Co. Bank v. Stauffer, 10 Barr 398; Lefever v. Whitmer, Id. 505; Evans v. Evans, 5 Casey 277; Galbraith v. Eenton, 3 S. & R. 359; Bonslaugh v. Bonslaugh, 17 Id. 361.

      E. S. Golden, for defendant,
    cited Pringle v. Gaw, 5 S. & R. 536; Bratton v. Mitchell, 7 Watts 113.
    [During the argument Judge Sharswood referred to Seider v. Seider, 5 Whart. 208.]
   The opinion of the court was delivered, February 9th 1871, by

Williams, J.

— This was an ejectment for 135 acres of. land in Cowanshannock township, in the county of Armstrong. It was shown by the evidence given on the trial that James Kinley died in the fall of 1849 intestate, seised of the land in controversy, leaving a widow, Sarah, now intermarried with Harrison Gourley, the defendants in the ejectment, and the plaintiff, his only son and heir at law, surviving; that James Hunter was appointed his guardian, on the 27th of March 1868, by the Orphans’ Court of Armstrong county; and that the writ in this case was duly served on the defendants. This is the substance of the plaintiff’s evidence. The defendants, having given no evidence, requested the court to charge the jury: 1st. That under the evidence there cannot be, in any event, a recovery for more than the undivided two-thirds of the land. 2d. There being no evidence of an ouster in this case, the verdict must be for the defendants.

The court answered both points in the negative, and instructed the jury that the plaintiff, having shown a good title, must recover, and that the widoiv’s remedy is in the Orphans’ Court.

The assignments of error embrace the ansAver of the court to the defendants’ points, and virtually raise but one question: Is the plaintiff, under the evidence, entitled to recover the land of which the intestate died seised ? In other words, can the heir at law turn the widow out of possession by ejectment before any proceedings have been had for the partition or appraisement of the estate ?

The Intestate Act of the 8th of April 1833 provides that where such intestate shall leave a widow and issue, the widow shall be entitled to one-third part of the real estate for the term of her life;” and “ where such intestate shall leave a widow and collateral heirs or other kindred, but no issue, the widow-shall be entitled to one-half part of the real estate, including the mansion-house and buildings appurtenant thereto, for the term of her life.” Under the provisions of the Orphans’ Court Partition Act of the 29th March 1832, the widow’s portion, whether there be one or more lineal descendants, or collateral heirs only, may be assigned to her by metes and bounds, if the estate can be divided without prejudice: Bishop’s Appeal, 7 W. & S. 251; McCall’s Appeal, 6 P. F. Smith 363. But where the estate cannot be divided among the lineal descendants and the widow, or among the collateral heirs and the widow, without prejudice to, or spoiling the whole, it may be appraised and finally sold, if no one, entitled to take it under the provisions of the act, will accept it at the appraisement. The widow cannot take the estate at the valuation put upon it by the inquest: Painter v. Henderson, 7 Barr 48. But if it is taken by one of the heirs, the act provides in substance that the sum at which her purpart is valued, or if the estate is sold, her share of the purchase-money shall be and remain charged upon the premises, and the interest thereof shall be annually and regularly paid to her, in lieu and full satisfaction of her dower at common ¿aw, to be recovered by distress or otherwise as rents are recoverable. What the precise nature of the widow’s purpart or share is, when thus ascertained and charged on the land, is a questipn which has been much discussed, and in regard to which the authorities are somewhat discordant, owing to the different aspects in which the question has been presented. In Shaupe v. Shaupe, 12 S. & R. 9, and in Thomas v. Simpson, 3 Barr 60, it is declared to be “ an interest arising out of the land, in all respects of the nature of a rent-charge,” and subject to levy and sale upon execution. In Miller v. Lindsay, 8 W. & S. 456, it is said that “ primarily and essentially her estate is a rent issuing out of the land, and therefore an incorporeal hereditament, ranking as real estate.” In other cases, as in Medlar v. Aulenbach, 2 Penna. R. 355, and Hise v. Geigar, 7 W. & S. 273, it is treated as a statutory lien; in Bachman v. Chrisman, 11 Harris 163, it is called “statutory dower,” and described as “a defined interest in her late husband’s land,” and a “freehold estate.” In Kurtz’s Appeal, 2 Casey 465, it is said that “ whatever doubt there may be as to the nature of the widow’s estate, it is certain that, so far as relates to the principal sum, it is simply a charge on the land in the nature of a lien, payable at the widow’s death to the heirs of the intestate, to be recovered as personal only.”

This case is criticised by Woodward,. J., in Zeigler’s Appeal, 11 Casey 189, and his concurrence in the decree in that case, is put expressly on the ground that the widow’s interest, as ascertained by proceedings in partition under the Act of 1794, is an estate in land, and not a lien within the meaning of the Act of. 1830, relative to the lien of mortgages; and it is reviewed in Schall’s Appeal, 4 Wright 177, and the reasoning — but not the conclusion arrived at — is disapproved; and it is there said “ that the widow’s statutory dower ought not to be treated as a lien on, land, but as an interest in it. What her estate really is, is expressed in the Intestate Act of 8th April 1838, § 1: ‘ One-third part of the real estate for the term of her life,’ and the form in which the law assigns it leaves its character unchanged.” Again : It is an estate that is given by the intestate laws, and the partition laws do not change it.” But whatever difficulty there may be in defining the estate, there is no difficulty in understanding what it really and practically is. Where the widow’s share is laid off by metes and bounds, she has a life estate in the portion assigned to her as land, which carries with it as a necessary incident the right to receive the rents and profits; but where the estate is accepted at the appraisement or sold, she has a life estate, not in any specific portion of the land, but in an equivalent share of the rents and profits of the whole estate, measured by the interest on her share of its value as ascertained by appraisement or sale. In whichever form, therefore, the assignment of her share is made, she has an estate in the land of which her husband died seised, and by force of the statute it vests in her eo instanti the husband dies. Her interest in his lands is in no respect like dower at common law, except that it is only for life. No writ of dower lies for the share given her by the Intestate Act where the husband dies seised and in possession: Seider v. Seider, 5 Wh. 208. It is true that she may maintain an action of dower if the land is in the possession of one claiming it by title adverse to the heirs and denying her right, or of one not amenable to the Orphans’ Court: Galbraith v. Green and Wife, 13 S. & R. 85; Evans v. Evans, 5 Casey 277. But where the husband dies seised and in possession of real estate, she must proceed under the partition acts to have her share assigned to her. Formerly the Orphans’ Court alone had jurisdiction and authority to set out and détermine the portion of the widow in her husband’s estate: Seider v. Seider, supra; Thomas v. Simpson, 3 Barr 60; or to make partition between parties who take by descent from one who died sole seised: Clawges v. Clawges, 2 Miles; McMichael v. Skilton, 1 Harris 215. But now the exclusive jurisdiction of the Orphans’ Court, in the partition and valuation of the real estate of intestat.eS, is taken away by the Act of the 21st of April 1846, Pamph. L. 426, and any of the parties interested in such estates may proceed by action of partition in the other courts of this Commonwealth having jurisdiction of the action of partition. But the concurrent jurisdiction conferred by this act is seldom or never exercised, owing to the practical inconvenience and difficulty of carrying out the provisions of the Orphans’ Court Partition Act by an action of partition in courts of common-law jurisdiction.

The case of The Commonwealth v. Haffey, 6 Barr 348, where an action of partition was brought in the Common Pleas, and an action on the recognisance to secure the share of a married woman was brought in the District Court, is a practical illustration of some of the difficulties that must be met, and of the bungling expedients that must be adopted in order to overcome them. But though the act takes away the exclusive jurisdiction of the Orphans’ Court, and gives the widow the right to choose the forum in which to seek her remedy, it does not change its essential character. Her remedy for the assignment of her share is still by partition or appraisement, as provided by the Partition Act, whether the proceeding is in the Orphans’ Court or in the other courts to which concurrent jurisdiction is given. She cannot join with the heirs in bringing ejectment for the land belonging to her deceased husband ; nor can she bring ejectment for her interest in the real estate of which her husband died seised: Pringle v. Graw, 5 S. & B. 536; Bratton v. Mitchell, 7 Watts 113. But if she cannot bring ejectment for her interest in his estate, it does not follow that the heir can turn her out of possession, by an action of ejectment, before any proceedings have been had for the partition of the estate. If the widow’s only remedy is by partition or appraisementj under the Act of 29th March 1832 and its supplements, why should it not be the only remedy of the heir ? She has a vested estate in the land of which her husband died seised, why then should she be turned out of its possession before her portion is assigned or secured to her, as provided by the act ? If the heir wishes the exclusive possession of his share, why should he not proceed to have it set off to him under the provisions of the partition laws ? But we are not without authority on this question. This is not the first attempt that has been made to turn the widow out of possession of the real estate of which her husband'died seised, without having her share assigned or secured to her. The experiment was tried in Seider v. Seider, 5 Wh. 208. There the action was brought by collateral heirs. The intestate died in 1831, seised of the real estate, leaving a widow and brothers and sisters, but no children. Upon the petition of the brothers and sisters, the Orphans’ Court awarded an inquest. The inquest returned that the real estate could not be divided among the widow and legal representatives of the deceased in such manner as to give the widow the one-half, including the mansion-house, but made no appraisement. The finding of the inquest was confirmed by the Orphans’ Court in 1833. The widow remained in possession after the death of her husband, and received the rents and benefits of the estate, until the trial of the ejectment in 1838, and it was held that the brothers and sisters could not maintain ejectment against her under the circumstances.

The judge, before whom the cause was tried, instructed the jury that “the widow is entitled to live in the mansion-house, and occupy the premises with the other heirs, until there is a proceeding to have the land appraised, when it will not divide, and her share is ascertained and secured, as the law provides”; and in delivering the opinion of this court, Pluston, J., said : “ The question is, whether the brothers and sisters can by ejectment recover the whole or one-half of the estate, the widow never having resisted or denied their claim or right according to law. If they could so recover, what would be' done next? Would they bring a writ of partition at common law? The acts expressly forbid this. They must then petition the Orphans’ Court, under and according to the Acts of Assembly. Rut they could have done this before bringing the ejectment; it was then useless; it was more, it was vexatious and oppressive, and against the express provision of the Act of 1774, which says, ‘to prevent disputes, concerning the manner in which the partition of the intestate’s estate may be made.’ ” There is no substantial difference between that case and the one now before us. It is true that there the intestate left no issue, and that the widow was entitled to the one-half of the estate, including the mansion-house. But, except as to the quantity, her interest was the same as if there had been children, and she had got the one-third: Bratton v. Mitchell, supra. If the estate cannot be divided among the collateral heirs and the widow, it may be appraised and sold. The provision that the widow shall have the mansion-house, applies only to cases where actual partition can be made: McCall’s Appeal, supra. And where there is a widow and one child, there may be partition between them, if it can be made without prejudice to the estate: Bishop’s Appeal, supra. It is clear, then, that there is no difference in principle between the two eases. The decision in the one must govern the other. If the heir wishes to acquire the exclusive possession of the land, he must proceed under the Partition Acts to have the widow’s share ascertained and secured to her, if the land cannot be divided between them. This is the remedy which the law provides, and the Act of the 21st of March 1806 makes it his duty to pursue it.

It follows that the court should have affirmed the defendant’s 2d point, and instructed the jury that the plaintiff is not entitled to recover.

Judgment reversed.


source: Caselaw Access Project

author: Agnew, J.

license: Public Domain

text:
    Brady’s Appeal.
    1. In a proceeding in the Orphans’ Court to compel specific performance, the same principles govern as in a court of equity.
    2. Specific performance is of grace; if a chancellor find reasons to withhold his aid, he will leave the party to his remedy at law.
    3. Specific performance refused of an executory contract between a son and a very old and feeble father, although in possession of his mental faculties, there being no part execution and there being evidence of trick and undue influence.
    4. Peirsoll v. Neill, 13 P. P. Smith 420, recognised.
    October 25th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Orphans’ Court of Westmoreland county: In the estate of Joseph Brady, deceased: No. 41, to October and November Term 1869.
    On the 21st of February 1867, Hugh Brady presented a petition to the Orphans’ Court, representing, “ That on the 13th of February 1864, Joseph Brady, of the same township, entered into an article of agreement, in writing, to sell to your petitioner a certain tract of land situate in Hempfield township, on which the said Joseph Brady then resided, adjoining lands of James Brady, of which this was formerly a part,” &c., containing about 100 acres; that Joseph Brady died in July 1866, having made a will, but without having made any provision for the execution of the contract, and leaving a widow who died in August 1866, six childdren, and the children of two other deceased children, and that George Mechling was administrator, c. t. a. The prayer of the petition was for a decree for specific execution of the contract.
    The answer alleged fraud and undue influence: that the article of agreement was fraudulently obtained, and that Joseph Brady, a feeble-minded old man, was deceived and misled by undue influence, and had no knowlege of the nature and character of the instrument he signed, &e.
    The agreement was as follows :—
    “Westmoreland County, Pa., Feb. 13th 1864.
    “ An article of agreement maid and executed the above date between Joseph Brady of the first part and his son Hugh Brady of the second part. Said Joseph Brady doth bargan and agree to Deed in fee simple the farm that he nowe lives upon situated in Hempfield Township adjoining my son James — which I have Deeded to him of same tract, and P. Sneeder and Barnhart and J. & S. Rugh, containing over one hundred acres at the valuation of Four Thousand Dollars $4000.00 one half of said purchase-money I give him, said Hugh Brady, in right of sonship as his portion of my estate, and the balins of Two Thousand Dollars $2000, said Hugh Brady agrees to pay out of said land as follows — to his sister Susan Brady as follows One Thousand Dollars to remain a lean upon the Land and said Hugh to pay her, Susan, the Interest anualy of Sixty Dollars a year, on the above one thousand Dollars during her remaining unmarryed, and if she marrys then the Principle is to be paid to her in one year after her marriage, and if she never marrys said one thousand Dollars air to be paid at Susans Death as disposed off by her fathers Joseph Bradys Will — the ballence of One Thousand Dollars to be paid out as disposed off by said Joseph Brady as he sees proper by his Will — said Hugh Brady is to continue to farm said land for the two thirds f and to give J one third to his Father or Mother as long as either of them lives as he now does he said Hugh paying all Taxes repairs and expenses of said farm and none of said payments to come dew unto one year after the Death of his father and mother if the father dies first said one third of proceeds of farm is to be paid to his mother, and the foregoing payments to commens one year after the death of both his father and mother. On further consultation Hugh Brady agrees to pay five Hundred Dollars in addition to the Two Thousand Dollars afforesaid making it to be paid out in all by Hugh Brady on said land Twenty five Hundred Dol which the partyes agree that theire is about one Hundred and Twenty acres more or less.
    Signed sealed this 13th day of February A d 1864 interlinings maid before signing. Joseph Brady, [l. s.]
    Attest, Hugh Brady, [l. s.]
    John McCullogh,
    H. Y. Brady.”
    The execution of the article was proved June 3d 1864, by the oaths of the subscribing witnesses and recorded the same day.
    The will was dated March 4th 1864. It directed the land mentioned in the agreement, which was all of which the testator died seised, to be sold after his wife’s death, and after deducting $200 which he gave to a daughter, he directed the balance to be divided into seven shares, and distributed amongst his children, including Hugh, and the children of his deceased children; James, his son, being omitted, because, as stated in the will, he had been advanced to an amount equal to his share.
    Joseph Brady was in his 91st year when the article was executed. His son Abraham had lived on the farm and managed it for his father for some years, when he died. Hugh then came to the farm, and occupied it on the same conditions as those under which he was to hold it by the agreement during his father’s and mother’s life. At the date of the article Joseph Brady was in full possession of his mental faculties, but in very feeble bodily health; generally bed-ridden.
    James A. Hunter, Esq., who drew the will, testified:—

      “ I asked the old man if we should make any reference in the will to this article between him and Hugh. He said ‘ No, write it as though that article had never been made.’ He referred to this article of agreement, and stated that McCullough and Hugh Y. Brady came out and got him to sign it. He said it wasn’t the way he wanted matters at all.”
    The evidence fixed the value of the property at about $60 or $65 per acre.
    The testimony was taken before an examiner. Its substance will be found succinctly stated in Judge Agnew’s opinion.
    The court decreed specific performance, according to the prayer of the petition.
    The respondents appealed to the Supreme Court, assigning the decree for error.

      J. A. Hunter and H. P. Laird, for appellants.
    — In cases of inadvertency and surprise, not amounting to fraud, the plaintiff will be left to his remedy at law: Henderson v. Hays, 2 Watts 149; Mortlock v. Butler, 10 Vesey 308 ; Campbell v. Spencer, 2 Binn. 129; Delameter’s Estate, 1 Wharton 374; Graham v. Pan-coast, 6 Casey 89; Baker’s Case, 2 Johns. Ch. R. 232. Equity will not decree specific performance of voluntary agreements: Pulvertoft v. Pulvertoft, 18 Vesey 91; Coleman v. Sorrell, 1 Id. 52; Atrobus v. Smith, 12 Id. 39; 2 Story’s Eq. § 793 b.

      A. A. Stewart and H. P. Foster, for appellee.
   The opinion of the court was delivered, November 3d 1870, by

Agnew, J.

— This is a proceeding under the 15th section of the Act of 24th February 1834, in the Orphans’ Court, to obtain a decree for specific performance of a written contract for the sale of land between Joseph Brady and his son Hugh Brady. Hugh Brady, the purchaser, presented the petition against the administrator with the will annexed, and the devisees of Joseph Brady, who died after the written agreement was executed, without making a provision for its performance, and, indeed, having protested against carrying it into execution. Nothing whatever was done by the parties toward its execution in the lifetime of Joseph Brady. Hugh Brady, the son, was living on the land, farming it for his father, when the writing was entered into, and continued upon the same terms afterwards. The terms of the writing upon which Hugh was to remain on the farm during the lifetime of his father and mother being the same, or nearly so, as those upon which he was farming the place, it might be fairly presumed that he was living there after the execution of the writing under its terms, had not the evidence shown the contrary very conclusively. The writing was executed on Saturday, and the evidence shows very clearly that, alleging it was obtained from him against his will, and was ruinous to his interests, as well as imperfect, omitting provisions essential to his welfare, he demanded its return on the following Monday. He persisted in demanding its destruction, and, after the refusal of Hugh to destroy it, called witnesses to bear testimony to his unwillingness to perform it.

The question, therefore, is whether upon the proof a chancellor would be moved to decree specific performance. The fact that the proceeding is in the Orphans’ Court, we think, makes no difference. The section of the act referred to provides that “such court shall have power, if the facts of the case be sufficient in equity, and no sufficient cause be shown to the contrary, to decree the specific performance of such contract, according to the true intent and meaning thereof.” The case being referred by the law to equity, the principles which govern the doctrine of specific performance must be the same, whether the case be in the Orphans’ Court or in the Common Pleas as a court of chancery. In equity proceedings it is well settled the decree is of grace, and not of right, and a chancellor, if he find reasons to withhold his assistance, will refuse specific performance, and leave the party to his remedy for damages. We have applied this rule in a case decided at the present term: Piersoll v. Neill, 13 P. F. Smith 420, opinion by the Chief Justice, where the action was an ejectment to enforce specific performance. In that case it is held that it is the duty of the judge trying the cause, if the case be insufficient in equity, to take it from the jury, by instructing them that on all the facts proved the plaintiff is not entitled to a verdict. The judge takes the place of a chancellor in such a trial, and must see that a verdict be not rendered against the principles of equity. Eor, though, the action is in form at common law, the plaintiff seeking to recover on an equitable title is permitted to do so only on the principle that equity considers that as done which, according to equity, ought to be done. If, therefore, a chancellor woul4 feel that he ought not to be moved by the facts presented, a decree would not be granted.

Applying these principles to the case before us, what are the facts ? Taking the testimony of the complainant, it will be seen that this contract of sale did not originate with Joseph Brady and he had no hand in producing it. It came from Hugh Brady, who contrived the plan to procure it, sent the agent to execute his purpose, and suggested the motive to operate upon the mind of his father. Joseph Brady was a feeble old man, upward of ninety years of age, wholly incapable of taking upon himself the direction and management of his farm, confined much of the time to his bed, and having a wife of nearly equal age to provide for. Eor years his farm had been farmed by his sons. Abraham had died and Hugh taken his place, at a fair and ordinary compensation in the share of the products he was receiving; and with the prospect of being bountifully pi'ovided for in the old man’s will. But determining to secure a better provision for himself, which would not depend on his father’s will, he gave out that he would leave if the place was not secured to him, and had this communicated to his father. He then secured the services of his uncle, Hugh Y. Brady, to carry out his design. Hugh Y. Brady took with him John McCullough to assist him and to draw the writings, men in whom Joseph Brady had confidence. On Saturday they appeared at the old man’s house, uninvited by him and their purpose unknown to him. They talked with him several hours before anything was done. The conversation was turned upon Hugh, that he was going to leave, and the old man said he did not know how he could get along without him. A will was first proposed to him. McCullough said that would not do, and then an article was proposed. It was then proposed to draw one up just to show what the bargain was. McCullough said he would write it down and the old man could see how it would be. McCullough wrote it and read it in a blundering way. Then it was suggested to the old man that he had better sign it until McCullough could get a better one written by Mr. Armstrong of Greensburg. He was urged to sign it lest he might die before the other could be written. Finally their purpose was accomplished. The old man consented to sign it, McCullough led him to the table, held the paper and steadied his hand, and then took possession of the writing, saying he would get Armstrong to copy it and make a better one. During all this time Hugh Y. Brady did the principal part of the talking, aided by suggestions from McCullough. Not a suggestion, by way of initiation, or a word of instruction to make or enter into a contract, came from old Joseph Brady. Everything was done for him. The contract was wholly the production of his visitors, and there is no evidence that he had ever precogitated or intended it. It is true that he signed the paper and was not legally incapacitated to execute it, yet it is manifest his own mind was not in it. There is another sense in which it may be said it was not his contract. The writing was imperfect and confessedly did pot contain all the terms that Joseph Brady desired. It contained only the outlines, says Hugh Y. Brady; it was supposed not to be drawn right, and Armstrong was to draw it right. It was awkwardly worded, says McCullough, and he was to get John Armstrong to write another in due form; and when he called on Armstrong to do so, he told him it was not only badly worded, but to put more in it — that Hugh was to haul the old man’s coal and lay it down at the door, and take his grain to mill and bring it back. Besides these things, McCullough admits that the old man was to have the house to live in during the lives of himself and his wife, the garden and orchard, and to have hay and pasture, necessarily including the right to keep some cattle on the place; and none of these things are expressly provided for in the writing, leaving all to inference and in a very questionable shape. That this writing was not the result of old Joseph Brady’s purpose, was imperfect, and had not his full assent, is evident also from what followed immediately. After the scene was over, and the actors had retired, the old man was silent and moody, then anxious and disturbed; inquired what was in the paper, and complained that the thing was wrong. On Monday morning, without intermediate or outside influence, he sent for his son James, told him McCullough and Brady of Greensburg came out on Saturday and wrote an article — said they had written it against his will, and induced or forced him to sign it — that he did not know they were coming, and had not sent for them, nor had he told them what to write. He then asked James to go and bring back the article, and gave him an order to get it. James went, but McCullough declined to give up the paper. Finally, McCullough, after delaying a couple of weeks, and after several demands for its surrender, took the paper and went with it to Joseph Brady’s. His first salutation from the old man was, “ 0, McCullough, you have got us into trouble here — that paper I signed sold me out of house and home, and Hugh can turn us out any day.” He then wanted it to be burned. Hugh, the son, was sent for. His father said, “ Hugh, I want this paper burnt, and we’ll have less trouble.” McCullough asked him if he had any objections. Hugh made no reply. The question was repeated several times without a reply. McCullough made a motion to throw it into the fire, and Hugh said, “ Stop — stop—I object to your burning it,” and said he was going to abide by that article of agreement. Nothing could more clearly lay bare the true attitude of these parties to each other, and the means which had been used to lead the old man into the snare which the planning of Hugh had laid for him ; and I pass by, therefore, the efforts of McCullough to explain the article to the old man, and to induce him to believe that it contained all that was necessary to protect his interests. That he did not succeed is evident from the after conduct of Joseph Brady, and the pains he took to call the attention of Samuel Rupp to the imposition he thought McCullough'and Brady had practised upon him, and his wish that Rupp should remember the conversation, to testify to it in court. If we compare the provisions of the article also with the number of the descendants of Joseph Brady, and his known feelings in favor of his other children, there can be but little doubt that he never intended that Hugh Brady should take so large a portion of his estate to the exclusion of the living brothers and sisters, and the children of Abraham and Rachel, who were dead.

Upon summing up the whole case we have, therefore, a contract of sale of the bulk of Joseph Brady’s property, not the real product of his own mind and will, hut contrived by the planning of his son Hugh for his own interests, procured by persons of hi3 own selection, and by means of operating upon the fears of Joseph Brady, who, from bodily infirmity and age, was incapable of attending to his own affairs — a contract imperfect and defective in its provisions for the interests of Joseph Brady; intended as a « precaution against immediate death, and to be supplied by a better one; unjust to the other children, repented of immediately, and its return or destruction demanded, ever afterward repelled and denied by Joseph Brady, and never carried into part performance during his lifetime. Clearly, in such a case, where its character remains unchanged by part execution, a chancellor would not be moved to compel its specific performance, and the court below ought to have refused a decree.

Decree of the Orphans’ Court reversed, and the petition dismissed with costs below, and the costs of this appeal to be paid by Hugh Brady, the appellee.


author: Sharswood, J.

text:
    Boyd versus Boyd.
    1. When the party'upon whom is charged the exercise of undue influence derives an inconsiderable or no benefit from the will, there must be evidence of such direct influence used at its making as to destroy the free agency of the testator.
    2. Where the party charged is a stranger, having no claims from relation-, ship and derives very considerable benefit, such direct proof is not required.
    3. General evidence of power exercised over the testator, especially if of comparatively weak mind, though not enough to destroy testamentary capacity, will be enough to raise a presumption, which must be overcome before the will can be established.
    4. This is particularly so where the party benefited stands in a confidential relation to the testator.
    5. Where a considerable portion of the estate of a testator whose mental faculties are impaired though not destroyed, be given to one standing in such relation, proof of the formal execution of the will in the presence of two witnesses is not enough; the presumption must be rebutted by some evidence that the disposition was the exercise of the testator’s free will.
    6. In this case a considerable part of the testator’s estate was left to a scrivener who drew the will and his relatives, none being relatives of the testator, who was not mentally incapable, the question of undue influence was properly left to the jury.
    October 26th 1870.
    Before Thompson, O. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Westmoreland county: No. 51, to October and November Term 1870.
    This was a feigned issue to try the validity of a writing purporting to be the will of John Boyd, deceased. It was framed, March 12th 1869, between John Boyd, Jr., and David Longenecker, executor of John Boyd, deceased, plaintiff, and Margaret Boyd, by her guardian, defendant. The case had been on the trial list at several terms; when it was on the list for November Term 1860, the name of David Longencker, one of the plaintiffs, was struck off.
    Margaret Boyd was the only child of the decedent. He left also a widow, J ane Boyd.
    The case was tried, November 9th 1869, before Buffington, P. J. The plaintiff having proved the execution of the will gave it in evidence as follows:—
    * * * “ I direct that all my just debts and funeral expenses be paid as soon after my decease as possible, out of the first monies that shall come into the hands of my executors, from any portion of my estate; also, a monument set over my grave similar to that of my first wife. Next, I direct a fair valuation or appraisement of all my estate, real, personal and mixed, including all the household and kitchen furniture, be made by three judicious neighbors selected by my executors, and after being signed with their names, that a copy thereof be' given to each of my executors.
    “ Next, I bequeath to my wife Jennie, all the benefits of the Act of Assembly with $50 additional as her portion.
    “Next, I bequeath to my infant daughter Margaret Boyd, the sum of $10,000, to be put on interest by my executors, if practicable to be done, and the interest to be collected yearly until she shall arrive to mature age of fifteen years or be married, and if such change shall, in the estimation of my executors, be productive of good results and prospects, then I direct the payment of her legacy to be made to her in part or in whole in the same manner as a parent ought to do, discourage vice, and encourage industry, frugality, &c., to encourage their general welfare. This discrimination I leave with my executors. But should my said daughter Margaret Boyd die at any period during minority and before marriage, then in such case I direct all her funeral expenses, cost of maintenance, education including all other reasonable expenses, &e., to be deducted from her said legacy, and the remaining balance I direct my executors to pay to the following persons, to wit: who are all conditional legatees as follows: to John Blackburn, farmer of Fayette county, Pa., I order one-tenth part conditional; to Wm. Wagoner, of Baltimore, one-twentieth part conditional; to Samuel Bell, one-twentieth part conditional; to Rev. J. D. Walkinshaw, one-twentieth part conditional; to the United Presbyterian Church in West Newton, Pa., one-twentieth part conditional; to John Boyd, Jr., of Mendon, one-twentieth part conditional; to Archibald Boyd, Jr., one-twentieth part conditional; to Wm. Boyd, one-twentieth part conditional; to Jacob O. Longenecker, of West Newton, Pa., one-twentieth part conditional; to Elijah N. Longenecker, of West Newton, Pa., one-twentieth part conditional; to Samuel Coldsmith, one-twentieth part conditional; to Phylanzo Paul, one-twentieth part conditional; to Mary Mosely, one-twentieth part conditional; to Margaret Hunter, wife of David Hunter, one-twentieth part conditional; to David Longenecker, one-twentieth part conditional; to James Gr. Longenecker, one-twentieth part conditional; to Boyd Sykes, minor child of Hester Ann Sykes, one-twentieth part conditional; to Henry Coldsmith, one-fortieth part conditional; to Mary Hilterbrant, wife of Jacob Hilterbrant, one-fortieth part conditional; and to Hester Ann Sykes, one-twentieth part — all these being conditional devises and twenty in number, if they should ever be payable are not to be paid until after four years from said Margaret’s decease, should her decease take place during her minority or before marriage, but no interest.
    “ I bequeath to Elizabeth Wagoner, daughter of Wm. Wagoner, of Baltimore, one bedstead and bedding including one coverlet, one pair blankets, bolster, pillow, all comprising a complete bed. And to Sarah Margaret Wagoner, another daughter of Wm. Wagoner aforesaid, I bequeath a bureau which I believe to be cherry. 1. To Rev. J. D. Walkinshaw I bequeath the sum of $300. 2. To the United Presbyterian Church of West Newton I bequeath the sum of $300. 3. To Jacob O. Longenecker I bequeath the sum of $300. 4. To John Blackburn, .farmer of Fayette county, I bequeath the sum of $200. 5. To Wm. Wagoner, of Baltimore, I bequeath the sum of $200. 6. To Samuel Cold-smith I bequeath the sum of $100. 7. To Phylanzo Paul I bequeath the sum of $100. 8. To Margaret Shupe, daughter of Wm. Shupe, I bequeath the sum of $100. 9. To Mary Mosely I bequeath the sum of $100. I direct my executors to pay these last nine legatees in four years after my decease, or sooner at their option, but no interest. I direct my executors to sell my storehouse and the garden dwelling-house and lot and stabling, either by private or public sale, as soon after my deceaseds they may consider suitable or expedient, they may have a period of three years to effect such sale if practicable to them, and pay out the aforesaid nine legatees.
    “ And the balance that may remain I bequeath equally to my executors and any surplus remaining may remain equally in their hands.
    “ My wife Jennie shall havé the mansion-house and lot, stabling, &c., and the dowry of the saddler-shop, and after her decease I direct my executors to sell the mansion-house, lot, stable and saddler-shop, to the best advantage, and the proceeds may remain equally in the hands of my executors for divers good causes, either sold or unsold as they—
    “I have estimated my whole estate at $30,000, but should a depreciation occur on bonds, judgments, notes, bank stock, or real estate, that it don’t amount to my estimation, from any cause whatever, then I direct a proportionate reduction on every devise that I have made, and a pro rata divide in the same proportion to every legatee, and if my estate comes to my estimate or exceeds — ■
    “I direct that my wife Jennie shall provide, maintain, clothe and educate my daughter Margaret as a parent ought to do, and in neglect, failure or refusal so to do, then I authorize my executors or the guardian appointed which my said daughter may select, to provide,- maintain, clothe, educate my daughter Margaret Boyd, and apply the interest of her said legacy all to that purpose, and if the interest be insufficient then to take as much of the principal of said legacy to meet such requirements, always keeping an eye to economy and frugality. Hereby giving my executors full power to take all lawful means to carry out all my devises, and power also to employ one or more attorneys under them.
    “ And I hereby nominate, constitute and appoint David Longenecker of West Newton, and John Boyd, Jr., of Mendon, my executors of this my last will and testament, hereby revoking all wills heretofore by me at any time made.
    “ In witness whereof, I, John Boyd, the testator, have to this my will, written on one sheet of paper, set my hand and seal at West Newton, Pa., this day of 80th September A. D. eighteen hundred and sixty-seven.

      “ To Hester Ann Sykes I bequeath the interest of $300 during her lifetime, and at her decease the principal to Boyd Sykes, her son. John Boyd, [l. s.]
    “ Signed, sealed and delivered in the presence of us, who have signed in the presence of each other.
    “ N. B. Interlining in 19th line ‘ to be collected,’ done before signing. “ Hester Ann Sykes interest to commence in six months after testator’s decease, also the word ‘ proceeds’ entered before signing. Samuel Ooldsmith,
    J. O. Longenecker.”
    The plaintiff gave evidence also to show the capacity of the testator. A great number of witnesses testified to his capacity until about three weeks before his death, he having a short time previously received a hurt by a severe blow on his head. There was evidence also of some difficulty with his second wife, which resulted in a complaint against him by her before a magistrate, and in his being subjected to discipline in his church; it was finally amicably adjusted. The testator was about seventy-two years old at his death.
    David Longenecker, one of the executors and plaintiffs, having on the 31st of October 1868 released and declined to receive “ any and all legacies and devises given to” him under the will, and having released the estate “ from all claims and demands for ever on account of the same,” testified on the trial for the plaintiff: “ I knew John Boyd for nineteen years. He often came to count interest, wrote letters; leases; came frequently to me, I was a justice of the peace. I wrote the will in dispute ; he came to me to get me to write it. He wanted a change in the will I had written before, the change he wanted I made as stated in the will in dispute. He wanted Coldsmith and Paul to be his witnesses; they were his tenants ; he sent Coldsmith to hunt Paul, could not get him, he said my son Jacob O. would do for a witness, he called Jake up, Boyd signed it then the witnesses. I had read the will to him, he said nothing; told me to take care of the will; the condition of his mind was good that day. His capacity to do business was good, could tell me in short terms what he wanted to have done. A will of 25th February 1867, was shown to witness. This was his will of that date. I never knew of William Wagner the legatee in the will until he named him; said he lived in Baltimore, did not know one of the Wagner girls named; said he took John when he was a poor boy; had raised him and would help him. he said Paul was a punctual tenant and he would mind him. I did not know Margaret Shupe, she had kept house for him ; said Mrs. Mosely had kept house for him after his first wife died. Hester Sykes was a girl he had raised. Boyd Sykes was his namesake and he wanted to remember him. He said he always wanted to remember my son Jake; was frequently at the shop with him; lent him his gold watch for three months, assigned no reason for giving the other son a legacy; said nothing about James; they were to get in. Boyd died 8th or 9th January 1868. His first wife died in June 1864. He married second wife in February 1865.”
    Being cross-examined, he said : “ I wrote three wills in 1867; one before in January 1863 which he destroyed; he left it principally to his first wife and Hester Ann Sykes; she died in June 1864; second will on 25th February 1867. Dick and myself were executors. David H. Pollock and myself were witnesses in the first will. We were residuary legatees. Coldsmith and Paul were witnesses. Coldsmith is a brother-in-law ; Paul no relation, lives in West Newton ; the child was then born gets the same as in this; if she died, twenty legatees. The February will was written in my office, no one present, signed in my shop. He estimated his estate at $30,000 at that time. I did not take an account of his estate. He came to me and wanted to make an account of his estate; it was then $32,000; saw. his notes, told me of his judgments and bank stocks; the real estate was counted in; this was in 1862, before I wrote the first will; don’t mind the valuation. He took the calculation ; said he had it at home, could not find it; made a second calculation, could not get as much; at that time it was $30,000; brought his notes, told me of the certificates of the bank stock, told me of $1000 of oil stock that was lost; it did not bother me, it was not my business.

      “ He wanted 20 to be conditional legatees; I set the will as he wanted it. I counted it first and asked if that would do ? I wanted him to give Hester Ann Sykes more, when he set himself then. I would not pretend to control him. He gave her what he allowed would allow her $50 more. I suggested that to him ; I told him she would make trouble. Said nothing against his wife. I told him I would write it down if .said so, if not I would not do it; said he did not like Mr. Hunter, gave no reason ; said nothing of Cowan. I k'ept the wills; told me I should keep them; I wanted him to keep the wills, he said I should keep them ; he complained of the February will about one week before the will in dispute is written; took no- account of his estate. Coldsmith and Longeneeker were witnesses, it is the will we are trying now. Twenty conditional legatees were- to get the child’s share; if it lived he wanted the child to get it; good many of my relations, not ten, perhaps seven or eight.
    “ I never went to his house with pen, ink and papers-to get the items of the will of 30th Sept. 1867. I never went to Boyd’s house to solicit him to write this will; never went there to write a will and the old man avoid me. I wrote three wills in 1867. He came to me to have me make an estimate. He had a store-house, dwelling-house, mansion-house and out-lot.”
    The will in controversy, and that of February, were signed at Longenecker’s office.
    The will of February 1867, was as follows:—
    * * * “ Also I direct that a fair valuation or appraisement be made by three judicious neighbors, of all my estate including,my household and kitchen furniture and after being signed with their names that a copy of the same be given to each of my Executors.
    “Next I hereby bequeath to my beloved wife, Jennie C. Boyd, all the rights interest and benefit allowed her by the Act of Assembly in such case made and provided with Fifty Dollars additional, and to my infant daughter Margaret I bequeath the sum of Ten Thousand Dollars with all the interest that can be made to accrue thereon when she shall to the age of twenty-one years to be invested in 5-20 gold bearing bonds of the United States as a safe investment)
    (provided that if my said infant daughter Margaret shall not live till she shall arrive to twenty-one years of age then in such case I direct her portion as follows: twenty-five hundred thereof I bequeath to Wm. Wagner of the City of Balt., and twenty-five hundred dollars I bequeath to John Boyd of Mendon South huntington Ship and twenty-five hundred dollars, I bequeath to Samuel Bell, and twenty-five hundred dollars I bequeath to Jacob O. Logenecker tiner, of West Newton borough; these four last devises fulfills my infant daughter Margaret’s portion to a close,) these four last devises are only conditional.

      “Next, bequeath to John Blackburn of Fayette county Penn., all my Bank stock in National Bank of Brownsville, formerly Monongahela Bank of Brownsville. I bequeath to Mary Hilterbrand, wife of Jacob Hilterbrand, the sum of one hundred dollars. I bequeath to my friend Jacob O. Longenecker tiner, my gold lever and also the sum of two hundred dollars, I bequeath to Rev. J. D. Walkinshaw the sum of three hundred dollars. I bequeath to Samuel Coldsmith the sum of one hundred dollars, and to the United Presbyterian Church in West Newton the sum of three hundred dollars and the balance that may remain of my estate I will and bequeath equally to my two Executors to be at their control in settlement of my estate and Court charges and for all claims that may justly be paid.
    “ I direct that my executors shall be well paid for carrying out-my devises and also attornies one or more under them.
    “ But should there be a depreciation in the value of my real estate or loss on my judgments, Bonds, notes, &c., or on both then in such case I direct that a proportionate reduction equal to such depreciation and loss be made and deducted from every devise that I have except my wife, Jennie C. Boyd, her portion shall not be changed.
    “ And I constitute and appoint my esteemed friends, James A. Dick and David Longenecker, each of the borough of West Newton to be my Executors of this my last Will and testament hereby revoking all former Wills by me at any time made, hereby giving full power to my Executors to sell, convey in writing or otherwise, and to settle up all my estate according to the foregoing devises intentions and meaning and to all other legal acts thereunto appertaining to in and of my entire estate to the best of their knowledge. I direct that after my wife’s decease that all my real estate shall descend to Archibald Boyd junior, and Wm. Boyd and Margaret Hunter wife of David Hunter to be divided equally amongst these three persons,
    “ And lastly, I direct as before I have directed, that after the legacies are distributed and subject to depreciation and loss that the remaining balance shall descend to James A. Dick and David Longenecker my Executors for the expenses purposes aforesaid. In witness I the testator have to this my will written on one sheet of paper set my hand and seal this day of . A. D. eighteen hundred and sixty-seven.
    “ Signed sealed and delivered in the presence of us who have signed in the presence of each other. Since writing the foregoing I have changed the period 21 years respecting the age of my daughter Margaret that it shall be 18 years of age in both cases.
    “ I also direct a change in regard to my gold lever watch that I rule that back again but 200 Dollars devise shall remain additional.
    “ In witness whereof I the and testament set my hand testator have to this my last will and seal this 25th of February eighteen hundred and sixty-seven.
    “ Signed sealed and delivered in the'1 presence of us who have signed in the presence of each other last I direct that Phylanzo Paul shall have one hundred dollars subject to the same proportion as the former devises.

      Y “John Boyd. [l. s].”
    “ Samuel Coldsmith.
    Philanzo Paul.
    John C. Plumer testified for the defendant, that on the 5th of November 1867, the testator called on him to write his will; testator said he had an heir now and a wife; they should have his estate, except “two outsiders” — John Blackburn, who “'had lived a long time with him, and was faithful, and Jerry Boyd, as good-hearted a boy as eveT lived — was doing nothing, and he would start him in business.”
    There was evidence for defendant tending to show that the testator had been always a man of rather weak intellect; that he was very illiterate, some witnesses testifying that he could write little more than his own name; that for some time before the execution of the will he exhibited marks of insanity. The evidence of the defendant was quite uniform that he had not capacity to dictate or comprehend such a will as that in controversy.
    There'was evidence also that the testator confided greatly in David Longenecker, referred to him for advice about his business, and that Longenecker did his writing for him.
    During the trial the plaintiff offered a letter from Dr. J. W. .Blackburn to J. A. Dick, which on objection of the defendant was rejected and a bill of exceptions sealed.
    The plaintiff’s 4th point and its answer were:—
    “Fraud and undue influence are not to be presumed, but must be proved by the party impeaching the will, and there is no sufficient evidence in this cause of such fraud and undue influence as would warrant the jury in setting aside the will on that account.”
    Answer : “ The first part of this^ point, in regard to the nature of the proof to establish fraud or undue influence, is correct, and is answered in the affirmative. ■ But whether the evidence is sufficient for that purpose is for the jury to determine, and not the court. Fraud is not to be presumed, nor can it be established by slight circumstances. Positive evidence, however, is not required, and circumstantial evidence is sufficient if it make out the facts to the satisfaction of the jury. We think further that there are circumstances in this case from which the jury may infer the fact of undue influence, hut whether they ar^e so qualified by other evidence in the cause as to destroy their effect or impair it, or render it doubtful, is for the jury. It is not a case in the chancery side of the court, in which the court are required to pass upon the facts or sufficiency of the proof. "With this explanation we answer this latter part of the point in the negative.”
    Amongst other things the court charged :— * * *
    , “ Such is the infinite diversity in the minds and conditions of men, both those in a sound state and those in an unsound condition, that it is extremely difficult to define and classify their characteristics. And if difficult, in the case of intelligent men, how much more so must it be in the case of those unfortunate beings upon whom the hand of Providence has been sorely laid, and who have not discernment to conceive or describe their wandering and delusive fancies. [This subject, therefore, as it baffles the establishment of any rule, is wisely left by our laws to the sound judgment and practical good sense of a jury.] Still amidst the multitude of attempted distinctions and definitions by medical writers, there are some features or phases that it may be well to suggest for the aid and consideration of the jury in their deliberations on this intricate and interesting subject.” * * *
    After mentioning the different kinds of insanity, and what would be evidence of its existence, and commenting on the evidence in this case in reference to it, the judge proceeded:—
    * * * “In making a will by an aged and infirm man, whose body and mind have been impaired by disease, great care and caution should be observed in guarding him from imposition. Although his mind should be of sufficient soundness, if left free to work out its own designs, uninfluenced by improper means and unprejudiced by any fraud or deceit, yet if weak and feeble and worked upon by any cunning devices to warp it from its own deliberate purpose, and pervert it to the benefit of others, it would not be his will. The law does not condemn fair persuasions to make a will, provided the will of the testator is left uncontrolled, and the persuasion may be such as to induce the making of the will in his own favor, provided the mind and will of the testator is left free, but no falsehood or undue persuasion will be countenanced or tolerated by the law.
    [“ The prominent facts relied on are his expressed disposition to Mr. Plumer to leave his property to his wife and child. The fact that the scrivener was named as executor, and himself and family and relatives derive considerable advantages under it, the unsatisfactory evidence alleged as to the reading of the will, and the fact that the scrivener retained the other wills, thus it is said by defendant, "conceived some fraudulent design, and other circumstances given in evidence.]

      “ The jury will judge of them. The presumption is that of fairness, as we have seen it, of sanity in regard to the mind; fraud is not to be presumed, but fraud may be proved as to this fact also; and if so, the jury will judge it.” * * *
    The verdict was for the defendant.
    The plaintiff took a writ of error, and assigned for error the 'parts of the charge in brackets, and the answer to the 4th point; also,
    “4. The court erred in rejecting the letter of Dr. Blackburn to James A. Dick.”

      H. C. Marchand and E. Cowan, for plaintiff in error.
    — It should not have been left to the jury to say what was the rule as to insanity: McMasters v. Blair, 5 Casey 303. The facts testified to did not indicate insanity — opinions were not evidence : Dickinson v. Dickinson, 11 P. E. Smith 404.

      H. P. Laird and H. D. Foster (with whom was J. A. Hunter), for defendant in error.
    — The amount of undue influence necessary to avoid a will varies according to the strength of mind in the testator: 1 Jarman on Wills 36, 41Eckert v. Elowry, 7 Wright 52; Daniel v. Daniel, 3 Id. 191: Leech v. Leech, 9 Harris 69; McTaggart v. Thompson, 2 Harris 149.
   The opinion of the court was delivered, January 3d 1871, by

Sharswood, J.

— The main contest on the trial of the feigned issue in the court below was, as to the mental competency of the alleged testator to make a will, at the time the paper propounded was executed. Upon that subject in all its aspects, as presented by the evidence, the learned judge delivered to the jury an able and lucid charge, explaining to them, clearly, what was the legal standard of testamentary capacity. To the charge in regard to that question no error has been assigned, except to a single paragraph, extracted from the body of it, and by which it is supposed, contrary to the whole tenor of his instructions, that the jury were told that there were no legal rules, but that it was committed entirely to their discretion. We must read the passage in connection with what preceded and followed, and so interpreted, it could not have been misunderstood. All that the learned judge meant to observe was that, as there was an infinite diversity in the minds of men, both in a sound and an unsound state, it was not possible for the law to draw any marked line, so as to say, on this side is sanity, on that insanity; that certain actions are the acts of a man incompetent to make a will, because the same actions may evince such incompetency in one man, but fall far short of it in another. Eccentricity is not insanity or mental incompetency, nor always even evidence of it. A man may all his life have strange and unusual, and even ridiculous ways, from habitual indulgence in mere absence of thought — in reveries or daydreams — he may dodge his acquaintances — behave as though he saw things having no existence but in his imagination, and yet thereby evince no want of testamentary capacity. But if, after having attained mature life without exhibiting any such eccentricities, his character afterwards undergoes a change, it may well induce a belief that it is the result of some morbid condition of his intellectual faculties, especially when connected with any lesion or derangement of the physical organism. We see no error, therefore, in this part of the charge, which is the subject of the 3d assignment.

The most important question in the cause is, whether there was any evidence of undue influence exercised over the mind of the testator in the making of the will in question, which justified the court in submitting to the jury to find a verdict ágainst its validity on that ground alone. This is raised by the 1st and 3d assignments of error, which may therefore be considered together.

Undue influence is very nearly allied to fraud, yet it may be true that they are not identical, so that while undue influence comprehends fraud — fraud by no means embraces every species of undue influence: Redfield on Wills 510, n. A person, for a very disinterested purpose, and because he sincerely believes that it is the duty of a testator to make a will of a particular character, may carry his persuasion and influence beyond that point which is legitimate. Yet it would hardly deserve so harsh a name as fraud. But where the end and purpose of the influence is the benefit of the party employing it, it is not easy to distinguish and save it from that imputation. Hence, when the party upon whom rests the charge, derives none, or a very inconsiderable benefit from the will, there must undoubtedly be evidence of direct influence exerted at the time of making the will; such as in effect to destroy the free agency of the testator: Eckert v. Flowry, 7 Wright 46. But where, being an entire stranger — having no claims from lawful relationship — he derives a very considerable benefit from the act, such direct proof ought not to be, and is not required. Such was the case of Dean v. Negley, 5 Id. 312. General evidence of power exercised over the testator, especially if he be of comparatively weak mind from age or bodily infirmity, though not to such an extent as to destroy testamentary capacity, will be enough to raise a presumption, which ought to be met and overcome before such a will can be established. Particularly ought this to be the rule when the party to be benefited stands in a confidential relation to the testator. “ Where the party,” says Mr. Redfield, to be benefited by the will has a controlling agency in procuring its formal execution, it is universally regarded as a very suspicious circumstance, and one requiring the fullest expíahation. Thus, where a will was written by an attorney or solicitor, who is to be benefited by its provisions, it was considered that this circumstance should excite stricter scrutiny, and required clearer proof of capacity, and the free exercise of voluntary choice:” Redfield on Wills 515, citing Duffield v. Robeson, 2 Harring. 384. Undoubtedly if the counsel of an old man whose mental faculties are impaired, though not destroyed by advanced age, should draw for him a will giving to himself the bulk of his estate, or a very considerable part of it, it would not be enough to show the formal execution of the paper, in the presence of two subscribing witnesses called in for the purpose. He must go further, and rebut the presumption by some evidence that the disposition made was the exercise of the free will of the testator. “ The existence of that fiduciary relation,” says Mr. Redfield, “does not annul the testamentary act in favor of the attorney by his client; but such fact calls for watchfulness, lest some improper influence may have been exercised. There should be very clear evidence of mental capacity and proof independent of the factum that the mind free and unbiassed .accompanied the act:” Redfield on Wills 529.

Let us see, then, if there was any evidence in this case which raised this presumption and shifted the onus. If there was, it was a question for the jury; and however slight and in themselves insufficient in an ordinary case the circumstances mentioned by the learned judge would have been, there was no error on his part in calling the attention of the jury to them.

John Boyd was a man upwards of seventy years of age,— infirm of body, and certainly not of a strong mind, — exceedingly illiterate — able to write his name, perhaps to read, but not much more — during the latter years of his life showing, to say the least, indications of folly or eccentricity. David Longenecker was not indeed a lawyer, but he was or had been a justice of the peace, and was his adviser in business matters. He acted as the scrivener in drawing this will, two prior ones, and one subsequent. Not to refer to smaller legacies to different members of his family and relatives, it gave a very considerable benefit to him personally. As appears by the instrument itself, and by David Longenecker’s own testimony, John Boyd estimated his estate at thirty thousand dollars. , Besides the mansion-house, lot, stabling, and the dowry of the saddler-shop devised to his wife for her life, and after her decease to be sold and converted into money, he gave to her all the benefits of the Act of Assembly, with fifty dollars additional as her portion. What the value of the real estate was does not appear, but it will be near enough for the sake of the argument to consider this as a bequest to her of ten thousand dollars absolutely. Then he gives ten thousand dollars to his only child, Maggie, with a limitation over in case of her death before twenty-one and marriage, to some twenty persons, among them Longenecker and two of his sons. Then follow several legacies— one of them to a son of Longenecker — amounting, in all, to seventeen hundred dollars; leaving as the residue of his estate, according to his estimate, eight thousand three hundred dollars.

This would be considerably increased by the conversion of his real estate into money after the death of his wife — to what- probable extent does not appear. Then follows: And the balance that may remain I bequeath equally to my executors, and any surplus remaining may remain equally in their hands;” and immediately afterwards, as to the money produced by the sale of the real estate: “ the proceeds may remain equally in the hands of my executors for divers good causes, either sold or unsold, as they-,” and here there is a break, leaving the sentence unfinished. David Longenecker and John Boyd, Jr., are then named the executors. Now, is it at all probable, after all this string of .legacies, conditional and absolute, that John Boyd, being a man not apt at figures, — doing all his counting in his head, — would know how much of his estate this balance would probably be ? David Longenecker, in his testimony, does not say that he explained it to him; that he placed before him a calculation showing what the residue thus given to the executors would probably be. In the relation in which he stood it was incumbent upon him to have done this, and, if he had been wise, to call in a disinterested person to witness the fact of his having done so. I consider the following clause also as calculated to strengthen the presumption that John Boyd had no idea what amount of his estate he was thus giving to his executors: “ I have estimated my whole estate at thirty thousand dollars, but should a depreciation occur on bonds, judgments, notes, bank-stock or real estate, that it don’t amount to my estimation, from any cause whatever, then I direct a proportionate reduction on every devise I have made, and a pro rata divide in the same proportion to every legatee; and if my estate comes to my estimate or exceeds-” Here there is another break, and an unfinished sentence. It is clear that the penman intended that the bequest to the wife and child, all the other legacies, and also the residuary bequest, should abate in proportion if the estate fell short of thirty thousand dollars. Is it likely that if John Boyd had supposed that this residue would be one-third part, and including the proceeds of his real estate after his wife’s death, perhaps much more than a third of all his property, that he would not have left the depreciation to fall on that alone ? But that is not all. There was in evidence a previous will of John Boyd, dated February 25th 1867, also drawn by David Longenecker, and of which he and James A. Dick were named as executors, which shows clearly to my apprehension that he did not consider that this residue would be more than a reasonable compensation to his executors for their trouble. The frame of the will is very much the same as the present, and the amount of the residue, except as to the real estate, does not differ materially. It provides, “ the balance that may. remain of my estate I will and bequeath equally to my two executors, to be at their control in settlement of my estate and court charges, and for all claims that may justly be paid. I direct that my executors shall be well paid for carrying out my devises, and also attorneys, one or more, under them.” “And lastly, I direct, as before I have directed, that after the legacies are distributed and subject to depreciation and loss, that the remaining balance shall descend to James A. Dick and David Longenecker, my executors, for the expenses, purposes, aforesaid.” In this connection, the conversation detailed by John C. Plumer, in November 1867, was very significant: “ He came to me in November 1867, and wanted me to write his will. He said it would be short; that he had a will in Betsy’s time, in which there was considerable settlement; said he had an heir now, little Maggie, and a wife; they should have it, except two outsiders, and he named them, — John Blackburn and Jerry Boyd.” On a subsequent day there was another conversation upon the same subject. “ Came across wbat be bad said before, that-his wife and Maggie were to have the greater part of his estate, and two outsiders.”

“ It i's always,” remarks Mr. Redfield, “the proper inquiry, in regard to undue influence, whether it operated as part of the transaction in making the will in question. And as that is an act always ambulatory, during the life of the testator, his conduct after its execution is entitled to some weight in determining its validity:” Redfield on Wills 526.

On the whole, we have arrived at the conclusion that there were circumstances in evidence in this case which raised the presumption that David Longenecker had taken advantage of the confidential position he occupied as legal adviser and scrivener, to secure substantial benefits to himself and his family, and that it threw upon the plaintiff in the issue the onus of showing that the provisions of the will were fully explained to and understood by the testator, and fully assented to by him. This, as we have said, necessarily made it a question for the jury, and justified the learned judge in submitting it to them in the manner he did.

In regard to the 4th assignment of error, it is enough to say that it is not according to Rule 8, 6 Harris 578, and therefore is to be holden for none.

Judgment affirmed.