At the trial of this case before the jury, the main issue was
upon the validity of the will of Adjutant General Holt. Tecumseh
Sherman, a son of General Sherman, was called to prove that the
signature of his mother as a witness was genuine. He was not
inquired of as to the genuineness of the signature of his father,
because his uncle, Senator Sherman, had testified that that
signature was genuine. Subsequently Mr. Randolph testified that he
was familiar with the signature of General Sherman, giving his
sources of knowledge, and that he was of opinion, (giving his
reasons for it) that it was not his signature. Tecumseh Sherman was
recalled to prove that the objection found to the signature of his
father was not an unusual feature in his signature, but the court,
on objection, excluded the evidence.
Held that the
evidence was competent as rebuttal, and should have been
received.
It is the general rule that, if evidence which may have been
taken in the course of a trial be withdrawn from the consideration
of the jury by the direction of the presiding judge, such direction
cures any error which may have been committed by its introduction,
but there may be instances (and the present case is one) where such
a strong impression has been made upon the minds of the jury by
illegal and improper testimony that its subsequent withdrawal will
not remove the effect caused by its admission, and in that case the
general objection may avail on appeal or writ of error. There may
also be a defect in the language of the attempted withdrawal. In
such a case, and under the particular facts in this case, the names
of the witnesses should have been given, and the specific evidence
which was given by them, and which was to be withdrawn should have
been pointed out.
The opinion of a witness as to the genuineness of the
handwriting found in a paper, based in part upon his knowledge of
the character and style of the composition and the legal and
literary attainments of the individual whose handwriting it
purports to be, are not competent to go to the jury upon the
question raised in this case.
Declarations, either oral or written, made by a testator either
before or after the date of an alleged will, unless made near
enough to the time of its execution to become part of the
res
gestae, are not admissible as evidence in favor of or against
the validity of the will.
If not admissible generally, they are inadmissible even as
merely corroborative of evidence denying the genuine character of
the handwriting.
No presumption of revocation of the will by the testator, or
under his direction,
Page 180 U. S. 553
arises from the appearance of this will when first received by
the register of wills. There must be some evidence of an act by the
deceased, or under his direction, sufficient to show the fact, or
the instrument must have been found among the papers of the
deceased, mutilated, torn or defaced, under such circumstances that
the revocation might be presumed.
As the production of the will in this case created no
presumption of revocation, it was necessary to prove that the act
of mutilation was performed by him or by his direction, with an
intention to revoke, and his declarations, not being part of the
res gestae, cannot be used for that purpose.
This was a proceeding in the Supreme Court of the District of
Columbia for the purpose of proving an alleged will of the late
Joseph Holt, a distinguished lawyer and for many years Judge
Advocate General of the United States Army, who died at the age of
eighty-seven, in Washington on August 1, 1894, after a residence of
many years in that city. The proceeding resulted in the rejection
of the paper on the ground that it was not the will of Judge Holt,
but was a forged document, and judgment refusing probate was
entered upon the verdict of the jury. The proponents of the will
appealed to the Court of Appeals of the District, but before the
appeal was brought on for argument, Miss Hynes, one of the legatees
named in the will, withdrew her appeal. The judgment of the Supreme
Court upon the appeal of the other proponents was subsequently
affirmed by the Court of Appeals, and the proponents of the paper,
excepting Miss Hynes, have brought the case here by writ of
error.
The record shows that Judge Holt died leaving no relatives
nearer than nieces and nephews, residents of the States of Indiana,
Mississippi, and Kentucky, and of the City of Washington, D.C., all
being respondents in this appeal. He had been twice married, and
both wives had died long prior to his own demise. He had no
children by either wife. Immediately upon his death, his nephews,
Washington D. Holt and William G. Sterrett, came to his late
residence in Washington, and the keys being delivered to them by
one of the servants, a strict search was made for a will, but none
was found. While the nephews were in possession of the house and
the search was going on for the
Page 180 U. S. 554
will, papers were burned and destroyed, all of which the nephews
testified were wholly unimportant, and consisted of letters from
relatives of Judge Holt to him, and that no papers destroyed were
of a testamentary character. No will having been found, the nephews
above named, and another, named John W. Holt, filed a petition in
the Supreme Court of the District of Columbia, holding a special
term for orphans' court business, in which the fact of intestacy
was stated and the appointment of an administrator was asked.
Pursuant to the petition, and on September 28, 1894, the National
Safe Deposit, Savings & Trust Company of the District was
appointed administrator of the estate, and has continued so to act
since that time.
Up to August 26, 1895, nothing out of the ordinary occurred in
the administration of the estate, but on the last-mentioned date, a
sealed envelope, addressed to the register of wills in Washington,
was received by that officer, which envelope was postmarked
"Washington, D.C. August 24, 6 P.M. 1895, L." The envelope was
opened by the register, who found therein a paper purporting to be
a will signed by "J. Holt," dated February 7, 1873, and on the
paper appeared what purported to be the signatures of Ellen B. E.
Sherman, U.S. Grant, and W. T. Sherman as witnesses. By this paper
Judge Holt gave one-half of his estate to Lizzie Hynes, her real
name being Elizabeth Hynes, and the other half to Josephine Holt
Throckmorton.
Lizzie Hynes had been left an orphan in infancy and had been
committed to the care of her uncle, Dr. Harrison, and his daughter,
the first Mrs. Holt, and she had taken special charge of the child
up to the time of her own marriage to Judge Holt, who had promised
his wife at the time of their marriage to care for the child, and
Mrs. Holt, upon her deathbed, asked and received a promise from
Judge Holt that he would always take care of Lizzie and treat her
as if she were his own daughter. From that time until his death,
Judge Holt fully and in all things kept his promise and always
supported her, she living most of the time in Kentucky, though
frequently visiting and traveling with him.
The other beneficiary, Miss Throckmorton, was Judge Holt's
god-daughter, her mother being the cousin of his second wife,
and
Page 180 U. S. 555
while her father was a young man, Judge Holt treated him with
great kindness, and always so treated Miss Throckmorton.
The following is the text in full of the alleged will, with
punctuation as in the original:
"In the name of God Amen"
"J, Holt, of the City of Washington D.C. being of sound mind
declare this to be my last will & Testament"
"I do hereby give devise & bequeath all of my property --
both personal & real to Lizzie Hynes -- cousin of my first wife
& to Josephine, Holt, Throckmorton -- who is my God-child &
to their heirs & assigns forever -- I do hereby direct that at
my death all of my property be divided equally between them.
--"
"Lizzie Hynes is to inherit hers at my death Josephine at the
age of 21, her Father Maj. Charles B. Throckmorton will hold her
share in trust --"
"I appoint Mr. Luke Devlin of the City of Washington D.C. whose
character I believe to be of the highest standard & who will I
am certain carry out my wishes my executor"
"Signed & sealed by me in the presence of these witnesses in
the City of Washington, D.C."
"Feby 7th 1873 --"
"J. Holt"
"Ellen B. E. Sherman"
"U.S. Grant"
"W. T. Sherman"
There was nothing in the envelope addressed to the register of
wills other than this paper. The postmarks on the package indicated
that it had been deposited in one of the many local mail boxes to
be found in the northwest quarter of the City of Washington, which
is quite a large district, running from North Capitol Street on the
east to Georgetown on the west, and bounded on the south by the
Mall and north by the boundaries of the city. When the paper was
taken from the envelope, it bore evident signs of mutilation by
burning and tearing, and although the paper recited that it was
signed and sealed, there was no seal on it, and if it ever had been
affixed, it had been torn away. At the time the paper bears date,
February 7, 1873, Ellen B. E. Sherman was the wife of W. T.
Sherman, who
Page 180 U. S. 556
was then the general commanding the army of the United States,
and U.S. Grant was then President. The paper was torn nearly in two
across the page between the signatures of the testator and that of
the first witness. Some of the evidence tended to show that the
tearing was complete, but, as stated by the court below, the weight
of the evidence was that it was not entirely separated at one end.
The burning appeared on the edges of the paper and at the top, but
the body of the instrument was so far intact as to be plainly
legible.
Upon the receipt of this paper by the register of wills, he
communicated with Mr. Luke Devlin, the person named therein as
executor, and after the latter had seen it, he communicated with
the parties interested, and on September 20, 1895, filed his
petition in the Supreme Court of the District of Columbia, held for
orphans' court business, for the probate of the paper as the last
will and testament of Joseph Holt, deceased.
The contestants, as next of kin, filed their caveat October 18,
1895, opposing the probate of the paper, to which answer was made
and filed December 2, 1895, by Luke Devlin, the executor, and by
the Misses Hynes and Throckmorton, the two legatees named in the
paper.
Issues were duly made up in the orphans' court and transferred
to the circuit court for trial by jury. They are as follows:
"1. Was the paper writing bearing date the seventh day of
February, A.D. 1873, which was filed in this Court on the 26th day
of August, A.D. 1895, executed by the said Joseph Holt as his last
will and testament?"
"2. Was the execution of said paper writing procured by fraud
exercised and practiced upon said Joseph Holt by any person or
persons?"
"3. Was the execution of said paper writing procured by the
undue influence of any person or persons?"
"4. If the said paper writing was executed by the said Joseph
Holt as his last will and testament, has the same been revoked by
said testator?"
Upon the trial of these issues, the proponents of the paper
proved the death of the subscribing witnesses, and gave
evidence
Page 180 U. S. 557
in regard to the genuineness of their signatures as well as of
Judge Holt's. Senator John Sherman testified to the genuineness of
the signature of his brother, General Sherman; Colonel Frederick D.
Grant to that of his father, President Grant, and P. Tecumseh
Sherman to that of his mother, Mrs. Ellen B. E. Sherman. Mr. Henry
B. Burnett testified that, in his opinion, the body of the will and
the signature of the testator were written by Judge Holt; that he
became acquainted with him in 1893; had frequently seen him write
and had had considerable correspondence with him which continued up
to 1889, and that he was familiar with his handwriting. After this
evidence was given, counsel for proponents offered the paper in
evidence, which was objected to by counsel for the contestants on
the ground that the paper was evidently separated into two parts;
that it purported to be under seal, and the seal, if it ever bore
one, had been torn away; that it appeared to have been burned and
mutilated, and had been sent to the register of wills anonymously,
and that it was incumbent upon proponents to explain these
circumstances before the will could be read to the jury. The
objection was overruled, and the paper read in evidence.
Elizabeth Hynes, one of the legatees and proponents, was called
and testified that the paper writing was never in her possession,
and she never saw it until it was shown her on the witness stand at
the trial.
Miss Throckmorton also testified that she had never had the
paper in her custody and had never seen it until it was shown her
by the register of wills in the latter part of October, 1895, and
that the first she knew of its existence was through a telegram
from Mr. Devlin, which she received in New York city, August 26,
1895; that she had known Luke Devlin when she was a child, but had
not seen him since until after the paper was filed.
Mr. Devlin, the person named as executor in the paper writing,
also testified that it was never in his possession, and that he
first saw it in the office of the register of wills on the day it
had been received there. On cross-examination, Devlin testified
that he knew Joseph Holt well since 1862, having been a copyist
Page 180 U. S. 558
and messenger at that time in the office of the Judge Advocate
General when Judge Holt succeeded to that office; that he continued
to be employed in that office until 1876, when Judge Holt retired
therefrom; that he had little communication with him in relation to
office matters; that he visited Judge Holt once or twice at his
house; that he was in the habit of meeting him socially at the
residence of Mrs. Throckmorton, Sr., the grandmother of Miss
Josephine H. Throckmorton, from 1865 to 1878; that he had not seen
Mrs. Throckmorton, Sr., more than four of five times during a
period of ten years preceding the receipt of the will at the
register's office, and, on learning of the existence of the will,
he had to consult the city directory to ascertain where she then
lived; that, on the day the will reached the register of wills, he
received a telephone message from the register, went to his office,
and saw the will for the first time. He called on Mrs.
Throckmorton, Sr., and on the same day telegraphed Miss Josephine
H. Throckmorton of the finding of the will, having first learned
her address from her father upon inquiry at the War Department;
that he called on several occasions in later years at Judge Holt's
house, and was informed by the colored servant that he was out or
that he was engaged, and asked witness to call again, the last of
these visits being about April 9, 1894, shortly before his death;
that he had met Judge Holt outside on several occasions, the last
of which was about two years before his death, and conversed with
him.
At this point, the proponents announced their
prima
facie case closed, but opposing counsel objected that it was
incumbent upon proponents to put in all their testimony essential
to the establishment of the alleged will before contestants were
called upon to offer any; whereupon the court ruled that, because
of the fact that there was no attesting clause to the will, it was
proper and necessary for the proponents to offer all the evidence
they proposed to offer upon the subject of the genuineness of the
signature of Joseph Holt to the will, and counsel for the
proponents accepted the ruling as being a matter within the
discretion of the court.
Testimony was then given by Elizabeth Hynes, who stated that she
had corresponded with Judge Holt for forty years,
Page 180 U. S. 559
and that, in her opinion, both the body of the will and the
signature were in his handwriting. Mr. Devlin testified that he had
had daily opportunity for thirteen years of becoming familiar with
Judge Holt's handwriting, and that the signature to the instrument
was undoubtedly in testator's handwriting.
Miss Throckmorton testified that she had corresponded with him,
and was familiar with his handwriting and knew his signature, and
that both the will and the signature were in the handwriting of
Joseph Holt.
Other witnesses were called who testified that they were
acquainted with the handwriting of Judge Holt, and that, in their
opinion, the body of the paper and the signature were in his
handwriting; after which the proponents rested.
Counsel for the contestants then offered in evidence the
deposition of John Judson Barclay, in which the deponent testified
that he knew the testator intimately from 1857 to 1866, and at
intervals thereafter until the time of his death, and that he had
last seen him in November, 1893, when he was in impaired health and
in a darkened room at which last stated time he had a conversation
with Judge Holt in regard to the disposition by him of his property
and estate. Evidence in regard to this conversation was duly and
fully objected to, and the objection overruled and an exception
taken by the proponents. The witness then stated the conversation
as follows:
"In our conversation, he referred most touchingly to my deceased
sister, Mrs. Sarah Barclay Johnson, and made many kind inquiries in
regard to my aged mother, who had also been his warm personal
friend for many years. In this connection, he remarked, 'I have
made my will and have made provision for her to receive some
pictures,' etc., which my sister had painted for him, as well as an
ambrotype or photograph of herself, which he highly prized and
wished my mother to possess."
Another witness, Mrs. Briggs, testified under proper objection
and exception that she had had a conversation with Judge Holt
relating to wills sometime between 1888 and 1891 in which he told
the witness that if she were going to make a disposition of any
piece of her property, to do it before she
Page 180 U. S. 560
passed away; then she would be sure that it would be done and be
permanent, but, he continued, "in my own case, my nephew, my
brother's son, will attend to my affairs, and I know it will be
done all right." Before the conversation ended, Judge Holt had
stated that it was his nephew, Washington Holt, and that he would
attend to his affairs, and he knew it would be all right.
The objection to this testimony was on the ground that, if it
tended to prove anything, it could only mean that there was a will
existing in which Washington Holt was named as executor, and that,
if offered for the purpose of proving the contents of such will its
execution could not be proved by mere declarations of the testator,
and also that the legal presumption was that as the will was not
produced or found that it had been revoked. If not revoked, it must
be produced, and that parol declarations of this character are
inadmissible as a basis for proving revocation. Counsel for the
contestants admitted that their claim was that there was a will
existing in which Washington Holt was executor, but at the same
time counsel stated that they wished it understood that the
evidence was also offered both on the question of forgery and on
the question of revocation of the alleged will of 1873. The
objections were overruled, and the testimony admitted and
exceptions duly taken.
Subject to the same objections and exceptions, counsel for the
contestants further gave evidence to the jury tending to prove that
between the years 1884 and 1893, Judge Holt on several occasions
told Washington D. Holt that he had made him (Washington Holt) his
executor, and on several occasions Judge Holt informed Mary Holt
and her mother Vanda Holt that they would be much better off after
his death; that they would then go to Europe, and Mary must become
proficient in French so that, while in Europe, she could act as
their interpreter. Evidence was also given that, during the same
period, Judge Holt told the servants of his house on two occasions
that Washington D. Holt would have charge of his affairs after his
death.
It was also proved that Judge Holt was born in or about the year
1807, in the State of Kentucky, and that until 1856 he lived there,
excepting a few years when he practiced law in
Page 180 U. S. 561
Mississippi; that he died in the City of Washington in August,
1894, leaving an estate of about $180,000, about $40,000 of which
consisted of real estate in the City of Washington; his mother died
in 1871, previous to the date of the alleged will, February 7,
1873.
During the war, it would appear that there was some bitterness
of feeling engendered in Judge Holt's mind by the part taken by his
relatives, most of whom favored the South, and some of whom entered
its military service. Evidence was also given on the part of
contestants tending to prove that Judge Holt, prior to February 7,
1873, had on several occasions received visits at his house in
Washington from some of his nieces and nephews, and had kindly
received them and spoken kindly of them to others after they had
gone.
Letters of his were received in evidence, without objection,
dated prior to February 7, 1873, directed to different relatives in
Kentucky, and tending to show pleasant relations between them,
while letters of a similar nature from him to those relatives,
dated subsequently to February 7, 1873, and up to within a few
years prior to his death in 1894, were admitted, but under an
objection and exception as to their competency. Evidence was also
given, subject to similar objections and exceptions, of
declarations of an unfriendly character on the part of Judge Holt
towards the father of Miss Throckmorton and also towards her
grandmother, the evidence tending to show that he had said some
time after the date of February, 1873, that the Throckmortons were
his enemies, and that at a reception given by President Arthur,
Judge Holt had refused to shake hands with Major Throckmorton, the
father of Miss Josephine; also declarations of his to his servants
that he would not see the Throckmortons, these declarations having
been made many years subsequently to February, 1873.
All of this class of evidence was offered by the contestants in
support of their allegation that the paper was a forgery as well as
upon the issue of revocation.
There was also evidence given on the part of the proponents
tending to show that Miss Throckmorton was a great favorite of
Judge Holt's, and that his feelings of affection for her had
Page 180 U. S. 562
never changed, notwithstanding he may have felt differently
towards her father and grandmother. She was his goddaughter, and
she testified (after the evidence above referred to on the part of
contestants) that she frequently visited and stayed at Judge Holt's
house, and in 1892 he told her that he was an old man, on the brink
of his grave, but that he had provided for her, and that she would
be perfectly independent, and that was the last time she ever saw
him; that he never spoke to her at any time otherwise than kindly
and with affection.
Letters indicative of interest and affection for the mother of
Miss Throckmorton were put in evidence by proponents, after
evidence of that character had been given by contestants, in
relation to the relatives of Judge Holt.
Other evidence was given upon the trial not necessary now to be
referred to.
To the question whether the paper filed in court on August 26,
1895, was executed by Joseph Holt as his last will and testament,
the jury answered "No."
To the fourth question -- whether, if the paper had been
executed by Joseph Holt as his last will and testament, the same
had been revoked by him -- the jury answered "No, because it was
not executed."
No evidence having been given in relation to matters referred to
in the second and third questions, the jury by direction of the
court returned a negative answer.
MR. JUSTICE PECKHAM, after making the above statement of facts,
delivered the opinion of the Court.
Before proceeding to a discussion of the more important
questions involved in this case, we will refer to two decisions of
the
Page 180 U. S. 563
trial court upon questions of evidence in which we think there
was error.
The witness, P. Tecumseh Sherman, had been called by the
proponents of the will for the purpose of proving the signature of
his mother, Mrs. Ellen B. E. Sherman, and had stated that in his
opinion the signature on the paper was genuine. He did not testify
as to the genuineness of the signature of his father, as Senator
John Sherman, the brother of the General, had testified that in his
opinion the signature was genuine. Subsequently, when the case was
with them, the contestants called as a witness John B. Randolph,
who, after testifying that he had been employed for more than
thirty years in the office of the Secretary of War, and that he was
so employed while General Sherman had acted as Secretary and also
when he had been General of the Army, testified that he was
familiar with the signature of General Sherman, and had recently
reexamined the signature on the paper in question, and that in his
opinion the signature was not that of General Sherman. Upon
cross-examination, he was asked his reason for that opinion, and
among others stated that in the genuine signature of General
Sherman in the long quirl on the capital T the upper and lower
lines meet; that he never saw one in which they did not meet, and
he had seen thousands of them. In response to a further question on
cross-examination, he said that the upper and lower lines met at
least in four out of five signatures. He also stated that another
reason for his belief that the signature was not that of the
General was that the "S" in Sherman differed from the genuine "S"
in the little stroke at the lower part of that letter where the
upward stroke crosses the staff; that it should not make so much of
a loop or so pronounced a loop as in the paper.
The proponents in rebuttal called as a witness P. Tecumseh
Sherman, who had already been sworn in relation to the handwriting
of his mother, and by him they offered to prove that this failure
of the lines to meet in the letter T was by no means an unusual
feature in the signature of his father, General Sherman, and that
it was frequently, if not habitually, found therein, and also that
the loops at the bottom of the "S" as large as that
Page 180 U. S. 564
in the signature to the paper were also usually found. The court
excluded this evidence on the objection of contestants that it was
not competent as rebuttal.
We think this evidence was competent in that character, and
should have been received. The case in regard to the genuineness of
the paper was very closely contested, and was one of the vital
points in the trial. Evidence had been given on both sides, and
witnesses of the highest character and respectability had differed
in regard to the genuineness of the signatures. Although the court,
when the case was first with the proponents, had notified counsel
that they must offer all the evidence they proposed to offer upon
the subject before they first rested their case, and in accordance
with such decision they had proceeded to give further evidence, we
are not able to see how that fact is material at this point.
Counsel for the proponents could not anticipate what evidence would
be given by their opponents, nor what reasons might be offered by a
witness as the ground for an opinion against the genuineness of any
signature on the paper. When Mr. Randolph therefore was examined,
and stated his opinion that the signature on the paper was not that
of General Sherman, he was naturally asked on cross-examination if
there were any particular reason why he had come to that
conclusion, and in giving that reason, he stated the failure of the
lines to meet in the letter "T", and the peculiarity of the loop in
the letter "S". The proponents could surely not be expected to
anticipate that the letter "T" or the letter "S" would be the
particular subject of criticism by any witness on the other side,
nor what the character of the criticism might be. There was nothing
to call their attention to the question, and in the nature of
things it is plain the alleged peculiarities suggested by Mr.
Randolph could not have been anticipated before they were spoken of
by the witness. Under these circumstances, it seems to us it was
proper evidence in rebuttal, and that it was most important and
material to show by a perfectly competent and absolutely
disinterested witness, the son of General Sherman himself, that the
peculiarities testified to by Mr. Randolph were in fact no
peculiarities, and were frequently if not habitually present in the
genuine signature. The fact that, after the
Page 180 U. S. 565
witness Randolph had testified that he never saw one signature
of General Sherman's in which the lines in the capital "T" did not
meet, he subsequently stated that they met certainly as often as
four out of five times, did not render the proposed evidence of Mr.
Sherman immaterial when it was offered to be shown by him that
these lines not only frequently, but habitually, met. It is
possible to imagine that the signatures of General Sherman which
Mr. Randolph had examined in the War Department would bear out his
statement that the meeting of these lines occurred at least as
often as in four out of five of the signatures, while in those
examined by the son of the General, and with which he was familiar,
a failure to meet might be frequent, if not habitual, and thus
there might be no contradiction between the two witness; but such a
case would be highly improbable, to say the least, and we think
that if Mr. Sherman had been permitted to testify upon the subject
and had in fact testified in accordance with the offer, such
testimony would have been most material as affecting the reasons
given by Mr. Randolph for his belief that the signature was not
that of General Sherman. This might be true without impeaching in
any degree the integrity of Mr. Randolph or his intention to
testify what he believed to be the truth. As neither witness saw
the signature made, it was a matter of opinion with each, and while
either might have been mistaken, such mistake would not necessarily
affect the character of the witness. It was not a case where the
discretion of the judge was appealed to. It was a case of strict
right, and we are of opinion that the court below erred in refusing
to admit the evidence. In such a case as this, where there was no
evidence by an eyewitness as to the signatures of the parties, it
became of the greatest importance that no admissible evidence
should be excluded when offered upon the question of their
genuineness. For this error we think a new trial will have to be
granted.
Again, in the course of the trial, the contestants called a Mrs.
Briggs as a witness and proved by her that she was a journalist by
profession and had made literature her business in life, and that
she had received instruction from Judge Holt in the line of
composition in the English language; that she had gone to him
Page 180 U. S. 566
and asked his advice about a series of articles written by her
because she had been informed that he was a master of the English
language; that he was her master and teacher in such matters. She
was also somewhat familiar with his handwriting, and stated that,
in her opinion, the signature "J. Holt" to the paper in question
was not the signature of Judge Holt. She was then asked: "Have you
formed that opinion in any respect upon any matter except the mere
handwriting?" This was objected to and admitted under an exception.
The witness answered that she had, that it was from the
composition: "More the composition, as well as the writing."
Other witnesses were called who were permitted to prove that
they formed their opinions in regard to the paper from its
composition and style, and their knowledge of Judge Holt's legal
and literary attainments, as well as from their familiarity with
his handwriting. One witness was asked this question:
"Let me call your attention to the use of the word 'inherit' in
that paper, in the middle paragraph. From your knowledge of General
Holt's characteristics and his way of expressing himself, what do
you think as to that's being his expression?"
This question was duly objected to and the grounds fully stated,
but the court overruled the objection and permitted the witness to
answer, which he did by saying that he did not think the testator
would use that expression.
The counsel for the contestants say that these rulings were
right, but that, if there were any error, it was cured by the
subsequent charge of the court to the jury, given upon the request
of counsel for the contestants, in which the jury were
instructed
"to disregard any opinion as to whether Joseph Holt wrote the
paper in controversy that may have been expressed by any of the
witnesses for the caveators in this case so far as such opinion was
based upon anything but the handwriting of the paper. Insofar as
any such opinion may have been based in whole or in part upon the
composition of the paper or the expressions contained in it, or the
legal or literary attainments of said Joseph Holt, they are
withdrawn from the consideration of the jury. But all other
evidence which has been admitted in this case bearing upon the
legal attainments and literary style of said
Page 180 U. S. 567
Joseph Holt remains as competent evidence for the consideration
of the jury, along with the other evidence in the case bearing upon
the question of the genuineness of said paper."
The general rule is that, if evidence which may have been taken
in the course of a trial be withdrawn from the consideration of the
jury by the direction of the presiding judge, that such direction
cures any error which may have been committed by its introduction.
Pennsylvania Coal Company v. Roy, 102
U. S. 452;
Hopt v. Utah, 120 U.
S. 430,
120 U. S. 438.
But yet there may be instances where such a strong impression has
been made upon the minds of the jury by illegal and improper
testimony that its subsequent withdrawal will not remove the effect
caused by its admission, and in that case, the general objection
may avail on appeal or writ of error. This was stated by Mr.
Justice Field in
Hopt v. Utah, 120 U.
S. 430.
And see Waldron v. Waldron,
156 U. S. 361,
156 U. S.
383.
There may also be a defect in the language of the attempted
withdrawal, whether it was sufficiently definite to clearly
identity the portion, to be withdrawn. This evidence was regarded
upon the trial as of considerable importance. The question of its
admissibility was raised in the early stages of the trial, and the
evidence was excluded. It was again raised while the case was with
the contestants and the evidence admitted at their instance, and
several witnesses sworn in regard to it. After that, an effort was
made on the part of the proponents to give testimony in their favor
on this question, and it was refused as not rebutting in its
character. It is not a case, therefore, of the introduction of
merely irrelevant evidence, such as was stated in
Pennsylvania
Coal Company v. Roy, supra, nor like the case of
Hopt v.
Utah, supra, where the testimony of a single witness, a
physician, as to the direction from which the blow was delivered,
had been admitted, and where it was held that, if it had been
erroneously admitted, its subsequent withdrawal from the case with
the accompanying instructions cured the error. That was a plain
question of evidence on a single point, and on the part of one
witness only.
Here, was a case where several witnesses gave opinions in regard
to the handwriting in the disputed paper based upon
Page 180 U. S. 568
their knowledge of the handwriting of Judge Holt, and also based
upon their familiarity with his legal attainments and with his
characteristics of style and composition, while others based their
opinions upon handwriting only. Which were the witnesses that based
their opinions partly upon both foundations the jury could not be
expected to accurately recall after a long trial lasting several
weeks. Nevertheless it was called upon to separate and cast aside
that portion of the evidence which had been based upon such facts,
and, after excluding that evidence, determine as to the value of
the remaining opinions based upon knowledge of handwriting only. It
is at least questionable whether the case does not come within the
exception to the rule by reason of the possible impression produced
upon the jury during the long trial, in which the evidence of
several witnesses upon this point was given after much opposition
and long argument as to its admissibility.
The witnesses who testified upon both knowledge of handwriting
and familiarity with the style and legal attainments of Judge Holt
may have made the deeper impression upon the jury, and they may
have failed to realize that it was those particular witnesses whose
evidence on the subject was to be withdrawn. And while the opinions
of these witnesses as to the handwriting of the deceased were
withdrawn, yet their evidence as to the legal attainments and
composition and style of Judge Holt was to remain as competent
evidence in the case. All this was called for by the directions,
and without naming a single witness or recalling to the jury the
fact that it was his particular opinion regarding the handwriting
which was withdrawn. This was a somewhat difficult task for any
mind, and there was no certainty under such general directions that
it was properly understood, or that, with the best intentions, it
was fully performed. In such a case as this and under the
particular facts herein, we think the names of the witnesses should
have been given and the specific evidence which was given by them
and which was to be withdrawn should have been pointed out.
The court, be it remembered, was not responsible for the
character of the directions. It simply gave them as asked for
by
Page 180 U. S. 569
the contestants and in the language prepared by their counsel,
and whatever they lacked in the way of precision and certainty is
not the fault of the court.
It would appear that the counsel felt the doubt as to the
admissibility of the evidence, and after striving so hard to get it
in, when they desired it to be withdrawn, they were under an
obligation to have it done plainly and certainly. Upon the
particular facts of this case, while not impairing the force of the
general rule, we are of opinion that the withdrawal was far too
uncertain to be of any avail.
We are thus brought to a consideration of the merits of the
question decided by the court below. Is the opinion of a witness as
to the genuineness of the handwriting found in the paper, based in
part upon the knowledge of the witness, of the character and style
of composition and the legal and literary attainments of the
individual whose handwriting it purports to be, competent to go to
the jury upon that question? If he is able to give an opinion
without such evidence, and from his familiarity alone with the
handwriting, can the attempt be permitted to corroborate or
strengthen such an opinion by this kind of evidence? We think not.
An expert in regard to handwriting is one who has become familiar
with the handwriting of the individual in regard to whom the
question is raised. Handwriting is a physical matter, and does not,
in itself, represent any characteristics of the writer as to
composition or general style or as to his literary or legal
attainments. It is to be seen and the characters recognized by the
eye. But the process of his mind and the language or style in which
in the opinion of a witness the person habitually clothes his
thoughts are not matter of expert evidence, proper to be presented
to a jury, for the purpose of determining whether the paper
presented is or is not in the handwriting of the particular
individual in regard to whom the inquiry is made. The fact may, of
course, be proved that the person was a man of intelligence,
education, high legal attainments, refinement, and not addicted to
coarseness in speech or writing, and the inference may be sought to
be drawn from the facts that the paper in question is or is not his
composition and is or is not his handwriting; but where it is
material, the
Page 180 U. S. 570
inference is for the jury, and taking the opinion of the witness
in that regard is to take his opinion upon the very subject to be
decided by the jury, and is not at all a proper case for opinion
evidence.
We think the court therefore erred in permitting witnesses to
give an opinion as to the genuineness of handwriting founded partly
upon knowledge and familiarity with the legal attainments, the
style and composition of the individual whose handwriting was in
controversy, and as corroborative of their opinion from knowledge
of handwriting alone.
The two points above indicated in which we think the trial court
fell into error require the reversal of this judgment and the
granting of a new trial, but there are other questions in the case
which are fully presented by the record, and which have been most
ably and exhaustively argued by counsel on both sides. These
questions will necessarily arise at the very threshold of the case
when it comes on for trial again, and we think it is our duty to
express our views in relation to them. They relate to certain
evidence upon the issues of forgery and revocation.
And first, as to forgery. The paper in question was propounded
as the will of Joseph Holt.
The facts set forth in the statement prefixed to this opinion
show the case to be one of an extraordinary nature. There being no
proof in regard to the history or whereabouts of the paper before
it was received by the register of wills, and the evidence
pro and
con as to its genuineness having been
received upon the trial, the question arises as to the
admissibility of the various declarations of the deceased, and also
of his letters to different relatives living in Kentucky and other
states, which it is claimed tend to show the improbability of the
deceased making such a disposition of his property as is made in
the paper in controversy. (They are referred to in the statement of
facts above given.) The question is, in other words, can the
contestants prove by unsworn oral declarations and by letters of
the deceased facts from which an inference is sought to be drawn
that the disposition of the property as made in the paper is
improbable, and that the paper was therefore a forgery?
Page 180 U. S. 571
The decisions of the state courts as to the admissibility of
this kind of evidence are not in accord. Many of them are cited in
the margin. [
Footnote 1] Those
included in class A favor the exclusion of such evidence, while
those in class B favor its admission. The principle of exclusion
was favored by Chancellor Kent, and also by Justices Washington,
Story, Livingston, and Thompson, all of whom once occupied seats
upon the bench of this Court.
The cases cited in the two classes do not all, or even a
majority of them, deal with the question of forgery, but many of
them treat the subject of declarations of a deceased person upon a
principle which would admit or exclude them in a case where forgery
was the issue. It is not possible to comment upon each of the cases
cited in these lists without unduly extending this opinion. We can
only refer to the two classes generally, and state what we think
are the questions decided by them.
Page 180 U. S. 572
In the cases contained in class A, it is held that declarations,
either oral or written, made by a testator, either before or after
the date of the alleged will, unless made near enough to the time
of its execution to become a part of the
res gestae, are
not admissible as evidence in favor of or against the validity of
the will. The exception to the rule as admitted by these cases is
that where the issue involves the testamentary capacity of the
testator, and also when questions of undue influence over a
weakened mind are the subject of inquiry, declarations of the
testator made before or after, and yet so near to the time of the
execution of the will as to permit of the inference that the same
state of mind existed when the will was made, are admissible for
the purpose of supporting or disproving the mental capacity of the
testator to make a will at the time of the execution of the
instrument propounded as such. These declarations are to be
admitted not in any manner as proof of the truth of the statements
declared, but only for the purpose of showing thereby what in fact
was the mental condition, or, in other words, the mental capacity,
of the testator at the time when the instrument in question was
executed.
The cases contained in class B favor generally the admission of
declarations of the deceased made under similar conditions in which
declarations are excluded by the cases in class A.
If declarations of the character now under consideration are
admissible when made prior to the execution of the alleged will,
although not after it, then a large part of the evidence in this
case as to the oral and written declarations of the deceased was
properly admitted upon the issue of forgery, because such
declarations may have all been made before the forgery was
executed, the date of the paper not furnishing any evidence of the
time when it was in fact prepared. The forger could not be
permitted, by giving a date to the instrument, to fix the time
subsequent to which the declarations should be excluded.
But we see no good ground for the distinction. The reasons for
excluding them after the date of the will are just as potent when
they were made prior thereto. When made prior to the will, it is
said they indicate an intention as to a testamentary disposition of
property thereafter to be made, and that such
Page 180 U. S. 573
declarations may be corroborative of the other testimony as to
what is contained in the will, as is said by Mellish, L.J. in
Sugden v. St. Leonards, L.R. 1 P.D. 154, 251 (a case of a
lost will), or else they indicate the feeling of the deceased
towards his relatives, from which an inference is sought that a
testamentary provision not in accordance with such declarations
would be forged. The declarations are, however, unsworn in either
case, and if they are inadmissible on that ground when made
subsequent to the execution of the will, they would be also
inadmissible when made prior to its execution. In
Stevens v.
Vancleve, 4 Wash.C.C. 262, 265, Mr. Justice Washington said
that declarations of the deceased, prior or subsequent to the
execution of the will, were nothing more than hearsay, and there
was nothing more dangerous than their admission, either to control
the construction of the instrument or to support or destroy its
validity. Judge Pennington concurred in those views.
After much reflection upon the subject, we are inclined to the
opinion that not only is the weight of authority with the cases
which exclude the evidence both before and after the execution, but
the principles upon which our law of evidence is founded
necessitate that exclusion. The declarations are purely hearsay,
being merely unsworn declarations, and when no part of the
res
gestae are not within any of the recognized exceptions
admitting evidence of that kind. Although in some of the cases the
remark is made that declarations are admissible which tend to show
the state of the affections of the deceased as a mental condition,
yet they are generally stated in cases where the mental capacity of
the deceased is the subject of the inquiry, and in those cases, his
declarations on that subject are just as likely to aid in answering
the question as to mental capacity as those upon any other subject.
But if the matter in issue be not the mental capacity of the
deceased, then such unsworn declarations, as indicative of the
state of his affections, are no more admissible than would be his
unsworn declarations as to any other fact.
When they are not a part of the
res gestae,
declarations of this nature are excluded because they are unsworn,
being hearsay only, and where they are claimed to be admissible on
the ground
Page 180 U. S. 574
that they are said to indicate the condition of mind of the
deceased with regard to his affections, they are still unsworn
declarations, and they cannot be admitted if other unsworn
declarations are excluded. In other words, there is no ground for
an exception in favor of the admissibility of declarations of a
deceased person as to the state of his affections, when the mental
or testamentary capacity of the deceased is not in issue. When such
an issue is made, it is one which relates to a state of mind which
was involuntary, and over which the deceased had not the control of
the same individual, and his declarations are admitted not as any
evidence of their truth, but only because he made them, and that is
an original fact from which, among others, light is sought to be
reflected upon the main issue of testamentary capacity. The truth
or falsity of such declarations is not important upon such an issue
(unless that, for the purpose of showing delusion, it may be
necessary to give evidence of their falsity), but the mere fact
that they were uttered may be most material evidence upon that
issue. The declarations of the sane man are under his control, and
they may or may not reflect his true feelings, while the utterances
of the man whose mind is impaired from disease or old age are not
the result of reflection and judgment, but spontaneous outpourings
arising from mental weakness or derangement. The difference between
the two, both as to the manner and subject of the declarations,
might be obvious. It is quite apparent, therefore, that
declarations of the deceased are properly received upon the
question of his state of mind, whether mentally strong and capable
or weak and incapable, and that from all the testimony, including
his declarations, his mental capacity can probably be determined
with considerable accuracy. Whether the utterances are true or
false cannot be determined from their mere statement, and they are
without value as proof of their truth, whether made by the sane or
insane, because they are in either case unsworn declarations.
Thus, it is said in
Shailer v. Bumstead, 99 Mass. 112,
which is one of the cases cited in the margin in class A:
"Intention, purpose, mental peculiarity, and condition are
mainly ascertainable through the medium afforded by the power of
language.
Page 180 U. S. 575
Statements and declarations, when the state of the mind is the
fact to be shown, are therefore received as mental acts or conduct.
The truth or falsity of the statement is of no
consequence."
The testatrix in the above case died in 1865 at the age of
ninety-one, having executed a will in 1851, another in 1853, and a
codicil thereto in 1857, and among other issues raised was one of
testamentary capacity. The declarations that were held admissible
were only for the purpose of showing "what manner of person she
was" who uttered them. They were used to throw light upon an
alleged state of mind which was involuntary and the result of
disease and old age. If used for any other purpose, they were not
admissible, said the court, because they were mere hearsay, and
could never be explained or contradicted by the person who uttered
them.
And so, in
Gibson v. Gibson, 24 Mo. 227, the court said
such declarations were admitted when it was proposed to show the
condition of the testator's mind or to show the state of his
affections, but never as a mere narrative of facts. The latter
remark is explained in the next case in the same volume (p. 236),
the opinion in which was delivered by the same judge, by which it
is seen that such evidence was admissible only on the issue of
insanity.
See pages 238 and 239, where the point is
plainly made that there must be a foundation of that kind in order
to let in the proof of declarations as to his affections, which
could only be admitted on such an issue.
And it was also said in
Waterman v. Whitney, 11 N.Y.
157, that to receive declarations when no such issue was involved
would be attended
"with all the dangers which could grow out of changes of
purpose, or of external motives operating upon an intelligent mind.
No such dangers would attend the evidence upon inquiries in
relation to the sanity or capacity of the testator."
To the same effect is
Boylan v. Meeker, 28 N.J.L. 274,
cited in class A. It is therefore clear that as their truth in such
an issue is not of importance, and their materiality lies only in
the fact that they were made, the principle of rejecting unsworn
declarations has no application. But when it is sought to prove
them as coming from one about whose perfect mental capacity there
is no dispute, although
Page 180 U. S. 576
they relate to the alleged state of his affections when made,
the only possible importance of such declarations rests in the
claim that they are true, and an inference is sought to be drawn
which is founded wholly upon the assumption of their truth. Now if
their only value rest upon that assumption, then the fact that they
are unsworn declarations brings them at once within the bar of the
general rule of evidence that unsworn declarations are not
admissible. As indicative of mental capacity, they are original
evidence sworn to by the witness, but as evidence of the truth of
the statement declared, they are simply unsworn declarations, and
should be excluded accordingly.
The cases mentioned in class B proceed upon a totally different
theory --
viz., that the declarations may be true, and are
made by a person who knows all about the subject, and they are
therefore proper to be submitted to the jury for what that body may
regard their worth, although it is admitted that it is a very
dangerous kind of evidence. We are familiar with the case of
Sugden v. Lord St. Leonards, supra, L.R. 1 P.D. 154.
Cockburn, Chief Justice, in that case favored the admission of
declarations of the testator as secondary evidence of the contents
of the lost will on the ground that such declarations were usually
honestly made, and that the evidence might be put on the same
footing with declarations of a family in matters of pedigree,
evidence not always to be relied on, yet sufficiently so to make it
worth admitting, leaving its effect to be judged of by those who
have to decide the case. Pp. 224, 225. It seems to us that the
admission of the evidence substantially enlarged the exception to
the rule as to hearsay. Jessel, M.R. (at p. 240), undertook to give
the exceptions to the general rule as to hearsay (which exceptions
do not include this case), but he thought, upon the principles upon
which some of the exceptions were founded, the declarations had
been properly admitted, the case being one of a lost will, known to
have existed but which at the death of the testator was not
forthcoming. Mellish, L.J. thought the declarations of testator
made after the will were inadmissible, while James, L.J. and
Baggallay, J.A. concurred with the Chief Justice.
The remarks of the master of the rolls were adverted to in
Page 180 U. S. 577
the subsequent case of
Woodward v. Goulstone, in the
House of Lords, L.R. 11 App.Cas. 469, by Herschell, L.C., and by
Lords Blackburn and Fitzgerald, all of whom stated (pp. 478, 484,
486) that they did not wish, in deciding the case, to be regarded
as approving the views in the
Sugden case upon the
admissibility of the declarations of the deceased testator made
subsequently to the execution of the will, even in the case of a
lost will; that the question was not necessary to the decision of
the case then before them, and that they wished to reserve their
opinion until it was necessary to decide it. Considerable doubt is
thus thrown by the highest legal tribunal in England upon the
correctness of the decision of the lower court. In New York and
probably in most of the other states, the character and sufficiency
of the evidence to establish a lost will are provided for by
statute.
Schultz v. Schultz, 35 N.Y. 653.
The decision in the
Sugden case also overrules that of
Quick v. Quick, 3 Sw. & Tr. 442, where Lord Penzance
refused probate of the alleged will, there being no other evidence
of its contents than the declarations of the testator made after
its execution, and it also runs counter to the opinion of Lord
Campbell in
Doe v. Palmer, 16 Q.B. 747.
The law cannot, therefore, be regarded as settled in England
that, even in the case of a lost will, declarations of the testator
made after its execution are to be admitted as evidence of its
contents. It is also proper to call attention to the fact that all
the judges participating in the decision of
Sugden's case
were entirely satisfied with the proof of the contents of the lost
will, wholly aside from evidence of these declarations.
While the case is not like the one before us, inasmuch as the
inquiry here is not in regard to the contents of a lost will, yet
it might perhaps be urged with some force that, if declarations of
that kind were admissible, the evidence now before us is competent,
and was properly admitted.
We are, however, convinced that the true rule excludes evidence
of the kind we are considering. We remain of the opinion that the
declarations come within no exception to the law excluding hearsay
evidence upon the trial of an action, and we think the exceptions
should not be enlarged to admit the evidence.
Page 180 U. S. 578
Where the issue is not one in regard to the mental capacity of
the alleged testator to make a will, his declarations upon the
subject cannot be said to be declarations made against interest,
such as declarations made by an individual while in possession of
property, in disparagement of his absolute ownership. Such evidence
has been admitted as declarations against interest or as
characterizing possession, but the same declarations made after a
conveyance of the land would be inadmissible as mere hearsay and in
no degree as declarations against interest. Declarations made by an
alleged testator before or after the date of the paper are not
declarations against interest, because they can have no effect upon
his interest. The will would not take effect until after his death,
and before that time, he could revoke it or make another, and it
would still be immaterial evidence even if he did neither.
There is another reason why no exception should be made in favor
of such evidence upon which to build a presumption or inference of
forgery, and that is the inherent weakness and danger of the
evidence itself. No inference is generally more uncertain or
unreliable than that which is sought to be drawn upon the question
of the genuineness of a will from the alleged condition of a
testator's mind towards relatives or others, as evidenced by his
declarations. It is everyday experience that declarations of that
nature are to the last degree unreliable as a basis for an
inference as to probable testamentary disposition of property.
Those who thought by reason of such declarations that they would
certainly be remembered in the will of the testator are so
frequently disappointed, and that too in cases where there is not
the remotest suspicion of forgery, that it would seem exceedingly
unsafe to permit a jury to draw an inference based upon such
evidence relative to the genuine character of the instrument
propounded as a will. Although admitting the evidence, yet Sir John
Nicholl, in
Johnston v. Johnston, 1 Phillim.Rep. 447, 460,
said:
"Parol declarations are always to be received with very great
caution; in general, they are the lowest species of evidence. . . .
They may on the part of the testator be insincere, or, at best, the
mere passing thought of the moment, and are liable on the part of
witnesses to be misapprehended
Page 180 U. S. 579
and misrepresented. But these confidential communications with
his wife upon her serious representations to him respecting so
important a subject are deserving of rather more weight as evidence
of the deceased's mind and intentions."
The common law rules of evidence do not obtain in the
ecclesiastical courts of England in regard to the proof of wills
relating to personalty.
"On the contrary, the evidence bearing on those points is
generally mixed up with declarations of the party, and frequently
consists of such declarations alone."
Per Tindal, Ch.J., in Exchequer Chamber, 1838, in
Marston v.
Fox, 8 Ad. & El. 14, 56. The unreliable character of the
evidence is acknowledged, but it is taken, in connection with
almost any other evidence, for what it is worth. In our judgment,
its value is entirely too problematical, at its best, to cause us
to make an exception to the well considered rule of evidence
prohibiting hearsay.
The motives underlying and causing the particular provisions of
a will may be so various and so hidden from observation that it is
in the highest degree unsafe to draw an inference of forgery based
upon declarations as to testamentary intentions which are so
subject to change and which declarations may or may not represent
the true feelings of the testator or even his actual testamentary
intention at the time when spoken. The result is very apt to be a
breaking down of the safeguards provided by statute for the proof
of the due execution of a will, and to provide in place of that
proof evidence which is, in itself, of the most unsatisfactory
nature, and from such evidence permit a jury to draw a still more
uncertain inference of forgery.
We are not aware of any well founded rule permitting such
evidence on the mere ground that it is probable the declarations
were true, and therefore, though unsworn, should be received. On
this ground, it might equally be maintained that evidence of the
declarations of a person since deceased in a matter regarding which
he had been familiar, who had been a man of undoubted character and
probity and who had had no interest in the subject, ought to be
received though not sworn to. But in such case, the probability of
their truth has not been regarded as sufficient to admit the
declarations.
Page 180 U. S. 580
In matters of pedigree, declarations by members of the family
are admitted because the question in such cases is generally one
concerning the parentage or descent of the individual, and in order
to ascertain that fact, it is material to know how he was
acknowledged and treated by those who were interested in him or
sustained towards him any relations of blood or affinity. 1
Greenleaf's Ev. secs. 103, 104. Evidence showing how he was
acknowledged and treated is frequently only to be shown by
declarations made at the time, and, though unsworn, are received as
the best that the nature of the case permits. The analogy between
such evidence and evidence of the nature under discussion is
somewhat formal and far-fetched.
Undoubtedly cases may arise from the enforcement of this rule
where injustice may be the result. It is possible that a forged
instrument may in a particular case be declared a true one, where,
if evidence of this nature had been admitted, the decision might
have been the other way. An extreme case may be assumed, such as
was put by Mr. Justice Grier in
Turner v. Hand, 3 Wall.
Jr. 88, 107, by way of illustration in charging the jury, and
although he held in the case he was trying that the evidence was
admissible, he at the same time said it must be regarded with very
great caution as a dangerous kind of evidence.
Turner v.
Hand was one of the many phases in which the controversy over
the alleged will of Meeker was conducted in the courts of New
Jersey and in the federal court, while
Boylan v. Meeker,
28 N.J.L. 274, above cited, was another.
The difficulty in regard to a rule of evidence is that it cannot
be the subject of enforcement or nonenforcement according to the
exigencies of the particular case. The rule must be general in its
application. It cannot depend upon the opinion of the judge in each
case whether the declarations are or are not to be relied upon. The
rule must either permit or refuse to permit the evidence. We think
that more injustice is possible as a result of admitting the
evidence than from its exclusion. The statutes of all the states
have very careful and stringent provisions in relation to the
making of wills and the due proof of their execution. The wills
must be in writing (with the
Page 180 U. S. 581
exception of certain nuncupative wills) signed by the testator
and witnessed by others, and to permit evidence of the nature given
in this case tends, as we think, most strongly to break down the
efficiency of the statutory provisions and to render proof of the
execution of wills much less certain than was contemplated by the
statutes. If declarations of the deceased were admissible to
attack, they would then, of course, be admissible to sustain, the
will, and there would be apt to arise a contest in regard to the
number and character of conflicting declarations of the deceased
which he could neither deny nor explain, and in the course of which
contest great opportunities for fraud and perjury would exist. The
statutes as to wills were passed, as we believe, for the very
purpose of shutting out all contests of such a character.
If not admissible generally, it is as we think inadmissible even
as merely corroborative of the evidence denying the genuine
character of the handwriting. It is open to the same objection in
either case as merely unsworn declarations or hearsay.
We are therefore of opinion that the court below erred in
admitting this evidence upon the issue of forgery, and that the
error was of a most important and material nature.
The last question is whether this evidence, even though not
admissible on the issue of forgery, was admissible upon that of
revocation, as it was offered on both, and, if admissible upon
either, the general objection to its admission would be unavailing,
and there was no request to charge the jury to confine it to the
issue of revocation alone. This question remains, therefore,
although the jury found there was no revocation because the will
was never executed.
It is manifest that, upon the issue of revocation, the fact of
the execution of the will is to be assumed, for, in the nature of
things, one cannot revoke a will which he never made. It is
conceded on the part of proponents that the will appeared, when it
came to the hands of the register of wills, to have been mutilated,
torn, and burned around its edges, and counsel concede that its
appearance is such that, if it had been found among the papers or
repositories of the deceased, a presumption would have
Page 180 U. S. 582
arisen in favor of its revocation. The question is whether any
presumption of cancellation or revocation by the deceased or under
his direction is created in this case by the condition in which the
paper was when received by the register of wills through the mail
on August 26, 1895. If not, then these declarations subsequent to
1873 are not admissible on the theory that they are in aid or
corroborative of a presumption that does not exist.
After proof that a will had been duly executed and was in the
possession of the testator, the failure to find it after his death
would be presumptive evidence that the testator had destroyed with
an intention to revoke it. The presumption could, of course, be
overcome by proper evidence leading to a contrary conclusion. This
is conceded.
But here, the will is found not among the papers of the deceased
at his former residence, but it comes through the mail to the
register of wills more than a year after the decease of Judge Holt.
The presumption of revocation cannot, therefore, attach from the
failure to find a will once shown to have existed, for here the
will is found and produced. We are left absolutely without evidence
as to its whereabouts from the time of its execution in 1873 down
to the time when the register of wills received the envelope
enclosing it in August, 1895.
It is in evidence that, immediately after the death of Judge
Holt, two of his nephews came to the house, and during the next few
days papers were burned under their direction by one of the
servants in the house. The evidence of these nephews given on the
trial was absolute and distinct to the point that no paper of any
consequence or in the nature of a testamentary disposition of
property was found or destroyed, and there is no one to contradict
or dispute such evidence; but the fact exists that there was a
burning of papers.
Some evidence was given upon the subject of a similarity of form
between the half-printed and half-written characters on the
envelope directed to the register of wills and those found upon a
sign put upon the stable of the deceased by the servant who had
destroyed papers under the direction of the nephews, but we think
such evidence was of no importance, and it must
Page 180 U. S. 583
therefore be admitted that there is no evidence that the address
on the envelope was in the handwriting of any particular
person.
We think no presumption of revocation by the testator, or under
his direction, arises from the appearance of this will when first
received by the register of wills.
In
Hitchings v. Wood, decided by the Judicial Committee
of the Privy Council in 1841 (2 Moore's P.C.C. 355, 447), Lord
Lyndhurst, Langdale, M.R., Shadwell V.C., Baron Parke, and Mr.
Justice Littledale being in the court, the holograph instrument
purporting to be a codicil to the will of James Wood, sent
anonymously by the post to one of the legatees named therein,
though partly burned and torn, was (reversing the court below)
admitted to probate, the handwriting being satisfactorily proved,
and it was held that, under the circumstances of the case, the onus
of proving that the cancellation was the act of the testator, and
with what intention it was done, lay on the parties opposing the
proof. In the course of his opinion, Lord Lyndhurst said:
"Then, as to the alleged cancellation, we think, if this be a
genuine instrument, that the onus to make out the fact of the
cancellation is on those who oppose the codicil. It seems that a
corner had been burnt, the paper torn through, and in one place
across the signature; but by whom, and under what circumstances
does not appear. There is nothing whatever to show that it was done
by the testator, or if so, with what intention it was done. If it
be a genuine instrument, it proves that there was also another
codicil, and which is not forthcoming. It is obvious, we think,
that it must have been improperly dealt with, for if it was defaced
by the testator, he would either have entirely destroyed it or it
would have been found in this state among his papers. The
circumstance of its being in other hands shows that a fraud had
been practiced, and that no safe conclusion can be drawn from its
appearance that it was burnt or torn by the testator. But even if
it had been found among the testator's papers at the time of his
death, we incline to think some further evidence beyond its present
appearance would be necessary to show that he intended to cancel
it. Our opinion, therefore, is that the codicil ought to be
approved. "
Page 180 U. S. 584
This case establishes the point that no presumption of
revocation arose upon the facts herein by reason of the appearance
of the paper, and after execution is proved by evidence of the
handwriting, the
onus rests upon the individual claiming
that the paper was revoked by the testator, to prove the fact:
there must be some evidence of an act by the deceased or under his
direction which would be sufficient to show the fact, or the
instrument must have been found among the papers of the deceased,
mutilated and torn or otherwise defaced and under such
circumstances that the fact of revocation might be presumed. It was
observed in
Johnston v. Johnston, 1 Phillimore Rep. 447,
497, that a will once regularly made, the presumption of law is
strong in its favor; the intention to revoke must be plain and
without doubt.
There being no presumption of revocation from the appearance of
the paper, and the
onus being on those who assert its
revocation, can the written or oral declarations of the testator,
made subsequently to the execution of the will and tending to show
the existence of another will, not otherwise proved, or tending to
show the state of his affections for his relatives and an alleged
change in his feelings towards the relatives of one of the
legatees, though not toward the legatee herself, be admitted for
the purpose of asking the jury to infer either that the testator
himself mutilated and burned with the intention to revoke the will
or directed the acts of mutilation and burning in order to
accomplish such revocation? Can such evidence take the place of
proof of an act on the part of the deceased (or directed by him)
sufficient to revoke a will, and from which an intention to revoke
might be presumed? Here is simply a case of an inference sought to
be drawn that the testator did the act and with the intent to
revoke the will, because of his making certain declarations as to a
will, and also because he had expressed friendly feelings towards
some of his relatives, and feelings the reverse of friendly towards
the father of one of the legatees.
The will having been executed by the testator, it is said that
it must be assumed to have been in his possession or under his
control up to the time of his decease, and it is urged that
proof
Page 180 U. S. 585
of the state of mind of the testator during more than twenty
years subsequent to the execution of the will is proper to be
considered by the jury in order that it may from that proof infer
that the acts of mutilation were performed by the testator or under
his direction, and also that they were performed or directed with
the purpose of revocation. A double inference is thus based upon a
most insecure and dangerous foundation. The evidence is of the same
nature that we have just said was inadmissible upon the issue of
forgery, only here the inference sought is a revocation, instead of
the forgery, of the will. We think the declarations are no more
admissible for the purpose of inferring a revocation than for the
purpose of inferring the forgery of the will.
There is, in the first place, no evidence that the testator
either himself performed or that he authorized the acts of
mutilation, and we think no presumption that he did can arise from
the fact that the will was not found among his papers. And the
appearance of the will when received by the register furnished no
such presumption.
Counsel for the contestants have cited a number of cases which
they claim show the admissibility of this class of evidence, in
addition to those cited in the foregoing discussion, upon the issue
of forgery. They are placed in the margin. [
Footnote 2]
The evidence is claimed to be admissible for the purpose of
authorizing an inference therefrom that the testator himself
mutilated or directed the mutilation of the will for the purpose of
thereby revoking it. Declarations made by a testator at the time of
mutilation or cancellation, going to show the intent with which the
act is done, are, of course, admissible, being part of the
res
gestae. But as the production of the will under the
circumstances proved in this case created no presumption of
revocation, it was necessary to prove that the act of
mutilation
Page 180 U. S. 586
was performed by the testator or by his direction, and with an
intention to revoke, and we think that his declarations, not being
part of the
res gestae, cannot be permitted for the
purpose of asking the jury to infer therefrom that the testator not
only performed or directed the act of mutilation, but did so with
the intent to revoke the instrument. This kind of evidence is of a
most dangerous character. It is hearsay, and nothing more.
Some of the cases cited above admitted proof of declarations in
aid of the presumption of revocation arising from the finding of
the mutilated will among the effects of the deceased.
Lawyer v.
Smith, 8 Mich. 411;
Patterson v. Hickey, 32 Ga. 156.
Another case,
Burge v. Hamilton, 72 Ga. 568, admitted
declarations of a testator made to his attorney at the time of the
execution of a codicil to his will in relation to the number of
pages to his will then present and exhibited to the attorney, the
question arising from some mistake in the numbering of the pages,
and the testator declaring to his attorney that the will which was
then read over to him was all right and the numbering of the pages
a mistake. The court held the paper presented an ambiguity, and a
question of the identity of the paper produced with the will as
executed. The declarations were in reality part of the
res
gestae.
In another case, the evidence went to prove that two sheets
stitched together and found in an envelope were parts of the will.
Gould v. Lakes, L.R. 6 P.D. 1. In some of the other cases,
declarations were admitted on the same theory as stated above in
the discussion as to forgery.
There must be an act and an intention in order to revoke.
Neither can be inferred from evidence of declarations of a testator
apart from the act and with no proof that the testator ever
performed an act of a revocatory nature. Unless a part of the
res gestae, we see no reason for the admission of these
declarations any more than upon the issue of forgery.
As is stated by James, Lord Justice, in
Cheese v.
Lovejoy, L.R. 2 P.D. 251, in speaking of the evidence of
revocation:
"It is quite clear that a symbolical burning will not do, a
symbolical tearing will not do, nor will a symbolical destruction.
There must be the act as well as the intention. As it was put
Page 180 U. S. 587
by Dr. Deane in the court below,"
"All the destroying in the world without intention will not
revoke a will, nor all the intention in the world without
destroying; there must be the two."
We cannot overcome the feeling that to admit evidence of this
nature is in the highest degree dangerous, and that its admission
would tend very strongly to impair the efficacy of the statutes
relating to the proof and revocation of wills.
The judgment of the Court of Appeals of the District of
Columbia is reversed, and the cause remanded to that court with
directions to reverse the judgment of the Supreme Court of the
District and to remand the cause to that court with instructions to
grant a new trial.
MR. JUSTICE HARLAN, MR. JUSTICE WHITE, and MR. JUSTICE McKENNA
agreed with the opinion only upon the first and second grounds
discussed, and dissented from the others.
MR. JUSTICE BROWN concurred in the result.
[
Footnote 1]
Class A.
Boylan v. Meeker, 28 N.J.Law 274;
Rusling
v. Rusling, 36 N.J.Eq. 603;
Gordon's Case, 50 N.J.Eq.
397, 424;
Hayes v. West, 37 Ind. 21;
Kennedy v.
Upshaw, 64 Tex. 411;
Mooney v. Olsen, 22 Kan. 69;
Thompson v. Updegraff, 3 W.Va. 629;
Couch v.
Eastham, 27 W.Va. 796;
Dinges v. Branson, 14 W.Va.
100;
Gibson v. Gibson, 24 Mo. 227;
Cawthorn v.
Haynes, 24 Mo. 236;
Walton v. Kendrick, 122 Mo. 504;
Comstock v. Hadlyme, 8 Conn. 254, 263;
Shailer v.
Bumstead, 99 Mass. 112;
Lane v. Moore, 151 Mass. 87;
Robinson v. Hutchinson, 26 Vt. 38; where the evidence was
received, but the inquiry was as to mental capacity, the testatrix
being greatly broken and enfeebled in mind and capacity and of
advanced age,
Jackson v. Kniffen, 2 Johns. 31;
Jackson
v. Betts, 6 Cow. 377;
Waterman v. Whitney, 11 N.Y.
157, citing many cases;
Johnson v. Hicks, 1 Lans. 150;
Marx v. McGlynn, 88 N.Y. 357;
Leslie v. McMurtry,
60 Ark. 301;
Stevens v. Vancleve, 4 Wash. C.C. 262;
Provis v. Reed, 5 Bing. 435; 1 Redfield on Wills (4th
ed.), pp. 556, 557; Gillett on Ev. sec. 281; Schouler on Wills (3d
ed.) ยง 317
a.
Class B.
Turner v. Hand, 3 Wall Jr. 88, 92;
Johnson
v. Brown, 51 Tex. 65;
Swope v. Donnelly, 190 Pa. 417;
Taylor Will Case, decided by Surrogate of New York County,
10 Abb.Pr.N.S. 300, 306. This case was reversed
sub nom.
Howland v. Taylor in the Court of Appeals on a question of
fact, but no opinion is reported; 53 N.Y. 627;
Davis v.
Elliott, 55 N.J.Eq. 473; claimed by respondents to be adverse
to
Boylan v. Meeker, which is not referred to, neither is
the question itself discussed, although evidence of this nature
seems to have been received without objection;
Hoppe v.
Byers, 60 Md. 381;
Burge v. Hamilton, 72 Ga. 568,
624;
Sugden v. St. Leonards, L.R. 1 P.D. 154;
Collagan
v. Burns, 57 Me. 449, by an equally divided court; 1
Phillim.Rep. 447-460.
[
Footnote 2]
Lawyer v. Smith, 8 Mich. 411, 423;
Patterson v.
Hickey, 32 Ga. 156, 164;
Harring v. Allen, 25 Mich.
505;
Burge v. Hamilton, 72 Ga. 568, 625;
Collagan v.
Burns, 57 Me. 449;
Collyer v. Collyer, 110 N.Y. 481,
484;
McDonald v. McDonald, 142 Ind. 55, 81;
Miller v.
Phillips, 9 R.I. 141, 144;
In re Valentine, 93 Wis.
45, 55;
Pickens v. Davis, 134 Mass. 252;
Gould v.
Lakes, L.R. 6 P.D. 1, 5.
