Executors of Reel v. Reel, 8 N.C. 248, 1 Hawks 248 (1821)
Executors of James Reel v. John Reel.
From Pitt.
Evidence is admissible of the declarations of a testator made at any time subsequent to the execution of the will, which goes to shew that the testator believed the contents of the will to be different from what they really are; or declarations by testator of any other circumstances which shew that it is not his will, are admissible.
The following is the case as it appeared reported to this Court in the statement made by the Court below.
This was a case of a contested probate of a will between the executors and one of the heirs and next of kin: the paper writing purported to have been published and declared as the testator’s last will and testament, in the presence of two witnesses : they declared on examination, that the will was executed at the house of William Blackledge, in Newbern, between sun-rise and breakfast time on some day in August, 1815: that they were called to the house by William Blackledge, for the purpose of attesting a paper, where they found Blackledge and James Reel alone: that they either saw James Reel write or heard him acknowledge his signature : that they did not at the time know what was the nature of the instrument, but subscribed it as witnesses in James Reel’s presence. They believed that James Reel was not drunk, *249but sober, that they had no conversation with him, re-maiaed but a lew minutes, and left Reel and Blackledge together. One of the subscribing witnesses stated that ho believed, on his entering Blackledge’s house, Reel met him at the door, and asked him to witness the paper 5 that the witness from a fear that he might be signing some obligation or instrument, whereby he might incur liability, attempted to look over the instrument before fixing his signature, when Reel intimated to him -not to do so, and said that it was nothing that could hurt him. It appeared further in evidence that Reel left Blackledge’s house that morning before breakfast; that the will was left with Blackledge, and after Reel’s death ivas produced by Blackledge, enclosed in an envelope, with three seals. The will was in the following words:
“ In the name of God. • Amen !
“ I, James Reel, of Craven county, being of sound and disposing-t! mind and memory, do make and ordain this my last will and testa- “ ment, in manner and form following:
“ Imprimis — 1 direct that all my just debts be paid.
” Item — J give the sum of two hundred dollars to the children of my is brother John Reel, to them, their executors, administrators and as- “ signs forever. .
“ Item — I give to my brother I,evi Reel one hundred dollars, to him, “ his heirs and assigns forever.
“ Item — I give to my sister Sally Wintly fifty dollars, to her, her - heirs and assigns forever.
“ Item — I give to my sister Alicia Willis, in Georgia, one hundred !t dollars Forever.
“ Item — I give to my sister Polly El-null, one hundred d. liars forever.
“ Item — 1 give to my nephew Aaron El-null the debt lie owes me “ and one hundred dollars, besides a reasonable reward for his trouble “ in superintending my business, to him and his heirs forever.
“ Item — I give to my nephew Robert Reel, and my niece Susanna Pringle, each five dollars forever.
“Item — My friends, William Blackledge and Vine Allen, having “ heretofore‘borne the greatest burden of the expenses and labour in “ supporting the Republican canse in the county of .Craven, and being “ myself of the same political principles, and very desirous of having-11 them supported, J, the better to enable them to continue their sup*250“port of these principles, do give to them, their heirs, executors, ad- “ ministrators and assigns forever, the whole of the residue of my es- “ tate, both real and personal, except so much as shall be necessary to “ pay two-thirds of the expenses of building a Baptist meeting-house, “ at such place in the neighborhood as a majority of the Baptists of the “same sect of which my parents were, shall appoint or pitch upon, “ and to be paid as soon as the other third of the cost of the building “ shall be properly secured by the members of such Baptist Church. “ My desire is that no sale be made of any of the property, but that the “legacies be ¡.aid out of the debts due as they are collected, and if “ there be not enough due, then, that such as my executors cannot pay “ out -of that fund, be postponed payment till the income of my estate “ shall pay them, and my executors to have choice in paying whatever “ legacy first they please.
“ Lastly — 1 constitute William Blacklcdg’e and Vine Allen, sole ex- “ editors of this my last will and testament, and revoke all other or “former wills by me heretofore made. In witness whereof I have “ hereunto set my hand and seal this 23d day of August, 1815, at New- “ hern.
“JAMES REEL, (L. S.)
“ Signed, sealed, published and declared “ by the testator as his last will and tes- “ tament, in presence of us,
“ Thomas C. Masters,
“ 'David Lewis.
“ As a part of this my will, I further give to my nephew Radford Eiv “null the debt he owes me and fifty dollars, to him, his heirs and as- “ signs forever. As witness1 my hand and seal this 23d day of Au- “ gust, 1815.
“JAMES REEL, (L. S.)
“ Acknowledged by the testator at the same time, .
“ with the foregoing as a part of this his will,
“ Thomas C. Mastees,
“David Lewis.
“ As a further part of this will, X give to- my nephews Moses and Al- “ len Ernull, each twenty-five dollars, and to Stephen Ernull 1 give the , “ amount he owes. As witness my hand and seal tins 23d of August, «1815.
“JAMES REEL, (L. S.)
“’ Acknowledged, &c. as before,
“Thomas C. Mastehs,
“David Lewis.”
On the part of the Defendant, many witnesses were brought forward, who swore that James Reel lived ia *251the county of Craven, some tniies from the town- of Newbern ; some of them stated that he had always been a man of a very weak understanding, and from his youth up addicted to intoxication ; that his habits of intemperance had exceedingly impaired the little understanding he had from nature ; that a short time before the date of the will, he had been confined with a severe fit of sickness, after his recovery from which, his habit of drunkenness became, if possible,-more inveterate j that he always became intoxicated when the means could be procured, and by one witness he was represented as the greatest drunkard he ever had seen. Two of the witnesses stated, that in Newbern, a place which he often visited, and where they frequently met with him, they never liad seen him sober ; and one of them further swore that he had never seen him in the town, when in his opinion, he was in a state competent to dispose of his property with reason and intelligence. These witnesses admitted he was parsimonious, disposed to use trick in his bargains, asking too much for what he had to sell, and unwilling to give the value for what he •bought. The Defendant further proved, that James Heel came to Newbern 'at the election on the second Thursday in August, 1815, and remained there several days afterwards, during all which time he was seen drunk ,• that some time after the election, he came drunk to the house of one of the witnesses, who resided in New-bern, and' remained there during the night ; he then talked of his disease, said his home was a terror to him 5 while others slept he was walking, sometimes he thought himself in.Tennessee, sometimes in England, and sometimes in the West indies; he expressed a fear that the house of the witness was haunted, that he should be taken and carried away through the window in the night 5 he spoke of a design to travel for his health, and to make William Blackledge and Yine Allen, trustees to manage his business during his absence. 1 On the morning of tho succeeding day, Reel did not appear to have been reliev-*252cd by sleep, but talked as incoherently as on thcpreced-ing night, and left the witness to seek for Blackledge, after repeating his design of making Blackledge and Allen his trustees. This witness, who bad known Keel from bis childhood, was so struck by his strange demeanor, as to express, at the time, an opinion, that Reel was becoming crazy, or was about to die shortly. On the same day, this witness again met Reel, coming down the street that led from Blackledge’s house, evidently intoxicated, and was informed by Reel that he had not completed his business, but would do it if he thereby was caused to remain a week longer. It was further proved, that in the afternoon preceding the morning on which the will was executed, Reel went to the house of Black-ledge, and there spent the night, that he and B. were in the front room alone, and that in the course of the evening Reel went into the supper room, sat at the table and took supper with the family ; that at the table he talked of making his will and leaving Blackledge heir to his property, and that he was then intoxicated. It was proved that Reel had been taught at school to read and write, and the elements of arithmetic ; that he could calculate with figures, read writing badly, that if sober he might possibly with much difficulty have read the will, but if drunk, it would be utterly out of his power. Other witnesses said, that when he was not too. much intoxicated to stand, he could read small pieces of writing, notes of hand, &c. There was no evidence that the will had ever been read to him, the whole was in the hand-writing; of Blackledge, and no person besides saw any part of it written. It was proved that Blackledge had been Reel’s lawyer on some occasion, and was a man in whom he placed much confidence.
James Reel died on the 30th of June, 1818, and it was proved by the Defendant, that repeatedly, from August, 1817, down to four days previous to his death, the supposed testator sent messages to Blackledge to bring or send him his packet of papers. It was not shewn that *253these messages had been received, farther than that if appeared, the supposed testator had expressed great dissatisfaction at one time- that Blackledge had not come as he said B. had promised ; and at other times was angry at the failure of these attempts to procure the papers, and declared that Blackledge had treated him ill, and was not the man he had supposed. It was further proved in regard to the reason assigned in the will for making B. and A. residuary devisees and legatees ; that the former had borne as great a part as any other individual of the expense and trouble of supporting what was called the Republican cause in the county of Craven ; but that the latter liad not contributed as much as others for that purpose. The Defendant then offered to prove, that at various times, between the date of the supposed will and the death of James Reel, the said James had repeatedly mentioned what he believed to be the substance of the will left in the hands of Blackledge; and that according to that representation, the said Reel understood the contents of the will as materially different, and indeed, utterly variant from what it appears on its face, particularly in regard to the residuary clause giving his estate to Blackledge and Allen, which Reel believed to be .a gift to the publick. This evidence the Court refused to receive, unless it should be of declarations immediately upon the transaction, or so soon thereafter as to form part of the res gestee, The residue given to B. and A. was supposed to be worth $3000 ; the testator had no wife or children, but left brothers and sisters, and the children of deceased brothers and sisters, with whom, according to the Defendant’s witnesses, he had always associated on terms of affection.
On the part of the executors, several witnesses testified that James Reel, though never a man of bright intellect, hadrordinary capacity, and whenever sober enough to stand, had understanding sufficient to manage his business •, that he was the owner of a farm and a mill, *254generally lived alone, sold the products of his farm and lent money at interest, took obligations for the pay-meat of it, was not easily defrauded, and took care of bis property. That at the periods of elections, he sometimes became angry with his brother the Defendant, because their political .sentiments were different, and that then he would declare, Defendant should have none of his property. .That the fit of sickness before spoken of, occurred about three years before his death, and that he complained that his relations neglected him. About, two months before he died, he gave the key of his chest, containing bonds, accounts and money, to a witness, with instructions to return the key to him when demanded, or to deliver it to iSlackledge ,• that he said he had a will in Blackledge's hands, and had told one of his sisters who had asked him for one half of his mill, that her legacy was in Newborn under three seals, and asked her what she would do with a mill. Some time before his death, on being told that if he disliked his will he had power to revoke it, and make another, he replied, lie knew that, but he believed his relations cared no more for him than for a brute, except for wiiat they might obtain from him, and that he was willing, and indeed preferred that his will should stand, remarking at the same time to the witness who proved this, that he should have as good a share of his property as any of them.
The presiding Judge instructed the Jury, that the first point to be considered by them was, whether Reel had a capacity to make a will, and that if he had sense to make a legal contract, if he knew how to read, write, cypher, and manage a plantation, it was sufficient evidence he had capacity for such a purpose.
That the second enquiry was whether he was so drunk at the time of executing the will, as not to know what he was doing, and that as to the enquiry, the testimony of the subscribing witnesses, if believed, proved that he was not so drunk as not to, know what he was about.
*255Thirdly, that if the Jury could discover any evidence that the testator was imposed on by Biackledgc in making the will, so as to sign a disposition of his property which he did not intend, they might on that ground set the paper aside, but that there ought to be proof to that effect; and
Lastly, that there was no evidence of revocation.
The Jury found the paper writing produced to be James Reel’s will.
The Defendant moved for a new trial, on three grounds ; 1st. The rejection by the Coui't of material and proper evidence; 2d. Misdirection of the Court ; Sd. Because the verdict was against evidence and law. The motion was overruled, and the judgment of'the Court pronounced that the will was duly proved; whereupon Defendant appealed.
Gaston, for the appellant.
I. The Court rejected proper evidence'on the part of the appellant.
The object of the evidence was to shew by Reel’s repeated declarations what he believed to be the will he had signed, in order, with the other facts proved, to establish a fraud in the writer of the will, one of the executors and principal devisees.
There is no instrument, however solemn, against which fraud may not be averred — Fermou’s case.*
Whenever fraud is averred, parol evidence to prove it is always admissible.
Fraud cloaks itself under forms, and legal sanctions; and if you are not permitted to go beyond these formal sanctions, the law which permits fraud to be averred against them is f do de se.
That parol evidence may be received to shew fraud in obtaining a will, see Small v. Mien.†
Wherever parol evidence is admissible, the declarations of a person are testimony against himself and all claiming under him by a subsequent title — Ghiy v. Hall. ‡
*256Both parties here claim under James Reel, whose declarations are offered, and claim subsequently to them.*
The admissibility of the evidence is not only established by these general principles, but sanctioned by precise
authorities—Trimmer v. Bayne † — Warner v. Matthews‡-Bibb v. Thomas. §
Gaston, on this point, was here stopped by the Court.
XI. The Court misdirected the Jury. In the following particulars :
1. “ That if he was not so drunk as not to know what he was doing, he was lit to make a will.” Now a degree of drunkenness which would not prevent him from knowing what he was doing, but deprive him of judgment to direct the disposition of his property, is sufficient to disqualify him from making a will. “ It is not sufficient that the testator be of memory, but he ought to have a disposing memory, so that be is able to make a disposition of his lands with understanding and reason, and that is such a memory winch the Law calleth sane and perfect memory.” ||
2. “ That the testimony of the subscribing witnesses proved that he knew,” &c. The Judge has no right to pronounce on the effect of evidence¶ If he be competent to pronounce he has pronounced wrong — for the subscribing witnesses had no conversation, and no means of knowing his state of mind or knowledge of what he was doing.
3. That they might set aside the will for fraud if they could discover any — but th at there must be proof of it. While the Judge pronounce,? there is proof that Reel was sober, he in the strongest language intimates there is no proof of fraud. How can it be said there is no proof when it appears that Reel was a man of naturally weak intellect 5 a habitual drunkard •, always drunk when in *257town; drunk for ten or eleven days without interimssion ; drunk and silly the night before the will was written; drunk and silly the next morning; drunk throughout that day; drunk on the night while the paper was written ; it is impossible that he shóúld not be besotted in the morning; he goes to Blackledge to got a power of attorney written; when he gets there the design is changed for a will; Blackledge, his attorney, in whom he reposes all confidence, writes it; Reel could not read it himself; there is no proof that Blackledge ever read it to him; the estate is all given away to Blackledge and his associate, and Reel’s repeated efforts to procure the will are all ineffectual. And yet the Court tells the Jury if they could discover any evidences of imposition, they might say it was fraudulent, but they muSt.have proof! ?
As to the finding of the Jury, if there be a well-founded doubt upon it, there ought to- be a new trial— inasmuch as the inheritance is forever bound by it — Baker v. Hart, * — Pemberton v. Pembsrton. †
Monlecai, for appellees.
Evidence of parol declarations, contradicting and subverting the written declarations of a party’s intentions, executed and attested with all the solemnities which the law requires' for the purpose of preventing fraud, perjury, and imposition, should certainly be received with great caution.
Such evidence introduces all the danger which can arise from false and corrupt witnesses, who will swear to declarations which they never heard — from the inattention, stupidity or forgetfulness of witnesses, who misrepresent what they did hear; and from loose and unguarded expressions of a testator, and expressions which he may have used purposely with the view of concealing the manner in which he has disposed of his property; *258to prevent dissatisfaction among those who hope to be the objects of his bounty.
It is contrary to the spirit of our statute laws to admit such evidence. Wills are required to be in writing : hut if you permit a will in writing to be set aside by evidence of parol declarations, you thereby set up the will which the Law makes, in place of that which the testator has made; and there seems to be little difference between setting up a parol will, and setting aside by parol a will made in writing. Again, our Law says that a will in writing shall not be revoked by parol: Why ? Because of the danger of perjury. But does not the same danger occur in such evidence as is offered here ? You shall not prove that a written will was revoked, for fear of perjured witnesses, but if the same persons will swear that the will never was made, it may be heard ; because forsooth there is not the same danger : In fact, there is more, for while evidence of parol declarations of revocation was received, the Law had defined what expressions would amount to a revocation, but as to this evidence there is no guage. Estates will depend more than ever not only on the integrity and the understanding of witnesses, but on the whim of Jurors, the capacity of the Advocate and the integrity of the Judge — and although from the nature of things, this hazard must be encountered in all judicial proceedings, I should not be disposed to give greater credit or put more to risk in any case than, necessity demands. If such evidence is received at all, (which were it res integra I should think very questionable,) it should be confined to declarations made at the. time the will was made, or so near as to form a part of the res gestee — a time when the mind of the testator was called to the business in which he was engaged ; when it cannot be supposed he said any thing relative thereto with a view of concealing or misrepresenting the manner in which his property was disposed of: when the. attention of the bye-standers would probably be called *259to the matter in hand : when those whom the testator thought worthy of his confidence would be present, and when no expressions would probably be attributed to him unless they were actually used.
But it is said the evidence is relevant, that the Jury should have heard it, and given it such weight as it merited. The evidence if admissible'is certainly relevant; but it by no means follows that all relevant evidence, by which I mean such evidence as, if true, will conduce to enable a Jury to arrive at a correct result, is admissible. Upon the principle of relevancy, if that were the sole test, hearsay evidence, the declarations of persons interested would be admissible, and if it were possible that a Jury could be composed of such materials as that they could sift the false from the true, such evidence should and would be received; for* as the object of evidence is to elicit truth, it makes no difference what the nature of the evidence is, provided the desired result Can be obtained. Evidence of hearsay or of declarations would be admitted, and their weight left for tire Jury to ascertain; but why are they rejected ? not because we will not respect truth when derived from such sources, but because it would be impossible for a Jury composed of mere men to ascertain what is true and what is false. Reasons of policy therefore direct its exclusion.
As it cannot be assumed as a criterion of the admissibility of evideuce, that it tends, if true, to prove the issue; as the policy of our Law, as expressed in the acts of our Legislature, does not favour the introduction of such evidence as is offered here; as it appears to be of dangerous tendency, and reason would direct its exclusion ; let ns examine what is said by authority, the other witness of the Law\ I had expected that the appellant would have produced some authority to shew that evidence of this kind has been received ; l^ut I have been disappointed.
It is admitted that parol evidence of the declarations has been received, l. to rebufan equity ; 2. to explain a *260latent ambiguity $ 3. to shew a fraud practised on the testator.
As to tlioso cases in which it has been received to rebut an equity, it will be found generally that they were confined to wiiat passed at the time of making the will, or so near as to form part of the res gestae. And these cases are stronger than that now presented to the Court. The legal operation of the will gives the property to the executor, but from some circumstances apparent upon it, the Court of Equity deems him a trustee for the next of ldn. The parol evidence which is received, is for the purpose of supporting the legal operation of the will, and rebutting an equitable presumption. The Court restrict it to what passed at tiie time; surely a greater latitude would not be allowed to evidence, the effect of which is to destroy the instrument altogether, than is allowed to evidence in its support.
The cases upon this point are Gainsborough v. Gainsborough, * the testator charged his real estate with payment of his debts, and made his wife executrix. Evidence of his declarations that his wife should have the personal estate clear of debts, and that the person who wrote the will omitted it through- fraud or ignorance, was received. This was only to rebut the equity of the next of kin; and that the evidence was confined to what passed at the time the will was made, may be collected from the case itself, and moreover appears expressly by the case of Lord Granville v. Dutchess of Beaufort,† which was decided soon after. In the latter case the Lord Chancellor says, that Foster & Murl, the leading case, was an innovation, and that he yields to its authority contrary to his own opinion. The proofs taken in this cause, and which were thus reluctantly admitted by the Chancellor, were as to directions given to the person who wrote the will, and forming a part of the res gestee— not his subsequent declarations as to what those instruc*261tions were. In the case of Batchelor v. Searle,* evidence of the person who drew the will, as to the testator’s declarations, evidently made at the time, was received. In the Duke of Rutland v. Dutchess of Rutland, † the decía-rations proved were made when the will was executed. Page 214, the Chancellor says, “ After all, I own that the allowing parol evidence is exceedingly dangerous, and not to be done in cases of discourses at a different time from that of making the will .” In Rachfield v. Careless, ‡ parol evidence of direction of testator to the scrivenor, that executor should have the surplus, was received.— Blinkhorn v. Feast, 2 Ves. 28 — JYourse v. Finch, 1 .Ves. jr. 358 — 3 jSac. JSx’r & Jldm’r, H. 5 — 2 Ibid, Evidence, 6f. In Harris v. Bishop of Lincoln, § to explain.a latent ambiguity, evidence of what the testator directed when he ordered his will to be written, was received. And if a Chancellor is thus cautious in trusting himself with evidence of this kind, it cannot be said that we have too little reverence for the intelligence of a Jury, if we do not trust them with it.
That the same course has been pursued by Judges in Courts of Law, appears from Thomas v. Thomas, || in which Lord Kenyon says, “ It seems the learned Judge did right in rejecting the evidence, the supposed declarations having been made by the testator long before the will was made, though had they been made at the time of making the will, I should have thought them admissible evidence.” Now if declarations made before wrere not admissible, neither are those made after. If those made after are admissible, those made before would be, though they would not be entitled to the same weight, because the testator might have changed his mind. But both are equally relevant. In Doe on demise of Small v. Allen, ¶ parol evidence was given of questions-asked by the testator at the time of executing his will, as to its contents, *262to set it aside on the ground of fraud. And these two cases shew the distinction for which we contend — that evidence of what passed at the time, or so near as to form a part of the res gestee, is admissible — that evidence of declarations made at other times is inadmissible.
The case of Jackson v. Kniffen, * - is a very strong one. The testator was married to a second wife, by whom he bad no children : he was 80 years of age : he had been watched by his wife and a woman who lived in the house who had a legacy given her, aud his children debarred access to him. It was offered to be proved by one of the subscribing witnesses and others, that the testator liad frequently declared to them that he had been forced to execute the will; that he should have been murdered if he had not; and that an hour before his death, while expecting immediate dissolution, he called upon them to bear witness that the instrument was not his will j that it had been extorted from him through fear of being murdered. The evidence was rejected. Two of the Judges dissented one of them has given his opinion at length — he relies upon the authority of Nelson v. Oldfield † which seems very questionable. Nelson v. Oldfield, was a will of personal property, the trial of the validity of which belongs exclusively to the Spiritual Court‡ The will had been proved in the Spiritual Court, and therefore, says the Chancellor, not to be,controverted in Chancery. Now the evidence, if admissible at all, could only be received for the purpose of shewing there was no will. This question had been decided in a Court not only competent but exclusively competent. And it is strange that when the Court was called upon to enforce the payment of a legacy, (a matter in which the Spiritual Court had concurrent jurisdiction,) it should acknowledge the validity of the will and refuse to respect it. The question was not made, the evidence was received sub silentio. We may infer that the evidence was *263offered in the Court of Probate and rejected, and so far the case is in our favour.
The Judge fin Jackson v. Kniffen) adds, “I think “ the evidence, should have been admitted, and especially “ after it had been proved, that the devisor had been “ guarded and watched over after the date of the will; “ that it had been taken out of his custody and detained, “ notwithstanding his application for it, for the purpose “ of cancelling it, and that his children were denied acs- “ cess to him.” With humility, I must be permitted to question the correctness of this opinion, which makes the admission or rejection of this evidence dependant on any thing extrinsic. If it was not admissible without the existence of the other circumstances, I cannot see how their existence could make it so.
There is another case upon the same point, decided by Judge Story, Smith v. Fenner, * an authority precisely in point, and no light one.
It is true, that if evidence of this nature is rejected, fraud may be successfully practised, but many more will be effected if such evidence should be received: Perjuries will be encouraged — the last wills of testators (]e~ feated. Evils exist on both sides, a wise magistrate will choose the least.
Seatvell for the appellee,
commented on the authorities cited by counsel for the appellant, contending that they did not apply, though some of them established the doctrine that parol evidence might be received of declarations accompanying acts, to shew the intention of the acts.
That such evidence as was offered in the present caso was inadmissible, would appear from Richardson's law of last wills, 279 — 2 Bac. M. 64 Revise,309.
The rule of law as to drunkenness and capacity in a testator, is laid down in the very language used by the Court below, in. Shep. Touch, 403.
*264The charge as to the testimony of the subscribing witnesses did not infringe the powers of the J ury, or violate the act of 17"96. To say that the subscribing witnesses J ° proved, if believed, is in substance the same thing with saying, the subscribing witnesses said.
Gaston in reply.
It is in terms conceded that parol evidence is admissible to support the averment of fraud, and yet such evidence is asserted to be against the spirit of the statutes requiring wills to be in writing and forbidding parol revocations.
There is no point of the law the spirit of which ought more to be observed than tiiat which declares its abhorrence of fraud, and pronounces all fraudulent acts void. If a signature be procured by fraud to a testament, it is not a written will, it is no will.* And as to the spirit of the statutes forbidding parol revocations, we had none sucli, and parol revocations were admissible.
It is also conceded that where parol evidence is admissible, declarations of the testator may be received. Now it should be remembered that these are not received as a privileged sort of hearsay evidence. The rule as to hearsay evidence applies only to declarations of third persons, witnesses not on oath.† The exception as to res gestae applies only to hearsay evidence, and not to admissions of parties. Such declarations are received as admitted facts as against those admitting them and their privies.
But it is insisted that the admissions of a testator arc not receivable unless made at the moment; and this is attempted to be supported by reason and by authority.
1. By reason : St is said they <e may not have been serious — may be misunderstood — may have been made to deceive.” To this we answer — All this is possible, and it is right that such suggestions should be weighed. The same objections might be made to proof in a suit between *265A. ami 1?. of B’s admissions, but yet the evidence would be received. -The whole foundation of-this objection is, that.those wild should weigh evidence, are not competent to do it. It is an objection to trial by Jury' — not to the admissibility of testimony. But it is said, “ there is the same reason against it as against a man’s declarations to impeadh a deed he has made.” To this wo answer— It is not S(Y. In that case he is making evidence by his own declarations for Inins elf; or tie-is disinterested, and therefore his oath is better than his mere declaration. A testator cannot be examined on oath when a will is in contest-. A testator cannot have an interest to make testimony against what he wishes to take"place.
2. “ By authority Jackson v. Kniffen, * in this case there was no argument,' it'was decided by a bare majority", and that a vacillating majority.it goes too far, and therefore proves nothing — for it forbids any declarations of testator from being received. It purports to be founded solely on the statute of Frauds forbidding parol revocations, and therefore has no application here. It alleges to be supported by adjudications which do not uphold it.† It differs materially from the present case, because he knew it was unduly obtained, and yet did not revoke‡ Hero Reel supposed his will to be, other than it was and therefore did not revokp. - The opinion of the minority is a cqjiciusive refutation.
The case from Gallison is a mere'nisi' prim decision, made by a Jndge who is an eminent civilian, accustomed to decide both law' and fact. It is erroneous on its face, for it admits declarations made before,■ evidently an inferior species of evidence; and assigns bad reasons: 1. Spell declarations are in the nature of hearsay.” 2. {‘ They-are, suspicious,” (therefore they should be well weighed.') y3. “ Light sayings of testators .should not do