among the treasures of the common law. It is the principle of that code, that a paper obtained by duress or undue influence, or by deception, and without the free consent of the maker, given upon a knowledge of its provisions, is not a will. But that the want of such knowledge and consent are legal conclusions from evidence that the supposed testator was worn down by disease, and that the writer of the paper derives a large benefit under it, is nowhere found; nor that the like conclusion is absolutely to be drawn from those facts, with the additional one, that the writer was or was not a stranger or a confidential friend of the testator. After proof of capacity and execution, the common law lays down no rule upon the subject; but submits the general question to the jury for a decision, according to their conclusions upon the actual facts of undue influence, imposition on the testator, his knowledge of the contents of the paper, and assent thereto - under the comprehensive inquiry, whether a fraud has been practised. Where the testator's situation is such as to render the perpetration of a fraud easily practicable, the jury may say, they are not satisfied one was not practised, and thence infer its existence, unless the contrary be clearly shown. It is in the power of the jury, and may, as reasonable men, be their duty, for fear of fraudulent practices, and in prevention of them, to find a fraud, or to give a verdict such as they would if they had found a fraud, where there is a defect of proof to negative it. It is upon that principle, that ecclesiastical judges regulate their judgments, as we understand them. But those are conclusions of fact, arising from evidence given or withheld. A defect of proof, unless it be a total defect, is for the consideration of the jury, wherever the law requires the intervention of a jury. The ecclesiastical judge can say, a case is not established, because it is reasonable to require in the particular case full proof, and to such and such points the proof is not full. So may a jury. But a judge, under our system of jurisprudence, cannot determine, when prima fucie proof is offered, that the case fails, because further proof is not given. That the will was written by a legatee that he stood in the relation of kindred, friend, or agent to the party, do not, of themselves, prove that the testator did not know or assent to the dispositions. They raise a suspicion of imposition, and make it reasonable to call for explanations. Such explanations may be given, as acknowledged in these very instructions, by evidence of the actual reading of the will by or to the testator, or by proving its conformity to the instructions given for it. There are other circumstances equally satisfactory; such as the conformity of the will to previous or subsequent declarations, or to such dispositions as the party would be prompted by natural affection to make. The intimacy of the relation between the writer and the testator may be, and is even less suspicious, than if they were strangers; upon the supposition that each draftsman writes himself heir. These considerations must satisfy the mind, that upon such a subject, the law cannot lay down as a test, that a will is, or is not, valid, when executed under any one or more of the particular circumstances mentioned; but necessarily refers the facts upon which its validity legally depends, to the decision of the jury, under evidence as to all the circumstances attending its preparation or execution, the condition, mental and physical, of the testator, the contents of the instrument, and the benefits provided in it for those actively concerned either in the preparation or execution. Evidence to each of these points may have an important bearing upon the just conclusions to be formed of the testator's capacity, and of the advantages that may have been taken of his weakness or confidence; and a jury may justly be alarmed at the danger of exposing testators to importunities and imposition, which would follow from establishing papers to be wills, when obtained in extremis, and under suspicious circumstances, unless those suspicions be removed by affirmative and plenary evidence, that the testator comprehended the dispositions made for him, and fully and freely sanctioned them. But like other questions of actual intention; of the state of the mind; of influence; knowledge or ignorance of one person, and of integrity or dishonesty and fraud of another; this question is one of fact, to be decided by the jury upon evidence; which, in the opinion of the judge, is competent, as tending to establish any of those facts. Its tendency, it is the province of the judge to explain, by stating what conclusions may be drawn from it; but whether it establishes a fact, or whether a conclusion deducible from it, is or is not rebutted by other evidence, is the province of the jury to say. That the rules of the ecclesiastical courts, although most sensible deductions of facts, are not parts of the law of this country, but only of the law of those courts, we deduce, not only from the manner in which the judges in those tribunals speak upon this question, but from the nature of the subject itself. But furthermore, the questions which arise before the ecclesiastical courts upon the probate of testaments, arise also in the courts of common law, in ejectments on devises, or on issues out of chancery, to try the validity of the will. Yet none of the principles on which the Ordinary makes deductions from evidence given or withheld, have been incorporated into the common law, so as to be laid down to the jury, as conclusions drawn from them. The evidence is submitted to them, that they may draw their own conclusion. For this very reason, the chancellor will not determine the validity of the will, but always sends it to an issue, devisavit vel non; and upon that issue and in ejectment, the verdict is frequently at variance with the judgment of the ecclesiastical judge on the same instrument, offered in his court as a testament. For these reasons, we think there was error in stating it as a proposition of law, that the evidence supposed was necessary to the validity of the paper as a will. It should have been left to the jury to say, whether they thought, from the evidence given, that the presumption from execution, that the party knew the contents of the paper, understood them, and assented to them, was in fact rebutted by the state of his mind and health at the time the will was prepared and executed; VOL. IV. 11 by its contents, and by the circumstances relied on by the defendant; or was confirmed by its contents and by the evidence to the testator's knowledge of them, and other circumstances offered on the other side. The case must therefore be submitted again to the jury. Per curiam. Judgment reversed.1 C. Mistake. ANONYMOUS. COMMON PLEAS. 1587. [Reported Godb. 131, pl. 149.] Ir was holden by Anderson, C. J., that if one deviseth lands to the heirs of I. S. and the clerk writes it to I. S. and his heirs, that the same may be holpen by averment, because the intent of the devisor is written, and more; and it shall be nought for that which is against his intent, and against his will, and good for the residue. But if a devise be to I. S. and his heirs, and it is written but to the heirs of I. S. there an averment shall not make it good to I. S. because it is not in writing, which the Statute requires; and so an averment to take away surplusage is good, but not to increase that which is defective in the will of the testator. BROWN v. SELWIN. CHANCERY. 1734. [Reported Cas. temp. Talb. 240.] JOHN BROWN, on the 23d of June, 1732, made his will, and thereby bequeathed to the plaintiff a legacy of £500 and all his plate; to the defendant he gave all his leasehold messuages; and after several other legacies and bequests, as well as devising some freehold and copyhold lands, he devised as follows: "and as for the rest, residue and remainder of my estate, whether real or personal, whereof I am seised or possessed, or which I am any ways entitled to, which I have not herein and hereby devised, given, &c., I give and bequeath the same, 1 See Wright v. Howe, 7 Jones, 412 (1860), where the scrivener and sole legatee was the testatrix's attorney; Cramer v. Crumbaugh, 3 Md. 491 (1853); Stirling v. Stirling, 64 Md. 138 (1885); Booth v. Kitchen, 3 Redf. 52 (1877); Post v. Mason, 91 N. Y. 539 (1883); Carter v. Dizon, 69 Ga. 82 (1882). But in Hughes v. Meredith, 24 Ga. 325 (1858), it was said that when the scrivener, not being of kin to the testator, takes a large interest under the will, the presumption of law is that the testator does not know the contents of the will. Cf. Yardley v. Cuthbertson, 108 Pa. 395 (1885); Blume v. Hartman, 115 Pa. 32 (1886); and earlier Pennsylvania decisions referred to in those cases. to explain Anonymous 162 An averment ( exatamation) will be admitted a will if the writing conlaus what the divison intended & celain things besides. But such avermens. if the evilling is defective and not give the restasis intention. not good John Brower Selwis Enge 162 Brown viade his will, giving fact of his frof. To Seif I fail to aft. The residue was to be divided areout the executis Peif & afs were executors. Is for at line restator's deach sived reseator I 3000 Sestator intended to release this aft, I so in deal gives nicosily semeled his lawyer. But the ally. said it was not reel to seate wiel 2 acco and y it was not done able here so overhead wil (3 which author Blackwood & Gamer 13. Philline 458165. executor, may be controlled in on on Veneral : bat that not being the scroll instinctions for a will in which se keflère fl residuum to his youmped dang daughter. The ally misled residuary Larise. Beed restator way expressed himself as having left residuman alway Held that residuey clause should stared as part of will, but no other pail of the insuratias. |