Inability to read does not create a presumption that a testator
does not know the contents of a paper declared by him to be his
last will and duly executed as such.
There is a presumption that the testator does know the contents
of a will properly executed, which, while not conclusive, must
prevail in the absence of proof of fraud, undue influence, or want
of testamentary capacity, even where testator's inability to read
is proved.
In the absence of proof of want of testamentary capacity at the
date of the will, declarations of the testator as to the contents
thereof are inadmissible to prove lack of knowledge of such
contents
28 App D.C. 355 affirmed.
Loraine Lipphard, of the District of Columbia, died December 9,
1903, leaving a paper writing purporting to be her last will and
testament, bearing date April 27, 1898, duly attested by three
witnesses, and naming Rev. Mr. Meador as executor.
Decedent left surviving her as her next of kin and sole heirs at
law her husband, Adolph F. Lipphard, Sr.; three sons, named John,
William A. and Adolph F. Lipphard, Jr.; two daughters, named Sophia
L. Hellen, born Lipphard, and Capitola L. Anderson, born Lipphard;
sixteen grandchildren, four of whom were infants under the age of
twenty-one years. All the other of her heirs and next of kin were
of lawful age. Decedent's property consisted of a small quantity of
personal property, valued at $350, and some real estate, valued at
$10,000.
The husband, Adolph F. Lipphard, Sr., and two of the sons,
William A. and Adolph F. Lipphard, Jr., filed a caveat to the
probate of the will. All of the other next of kin and heirs at law
became parties in one way or another. Before the issues were framed
on the caveat, the Rev. Mr. Meador departed this life. Thereupon
decedent's daughters, Capitola L. Anderson
Page 209 U. S. 265
and Sophia L. Hellen, beneficiaries under the writing,
petitioned the court for leave to propound said paper writing as
and for the last will of decedent, and an order was passed by the
court below authorizing this to be done. Thereafter a decree was
passed framing issues upon the caveat, to be tried by a jury. The
issues were five in number and were as follows:
"1. Was the paper writing dated April 27, 1898, the last will
and testament of said Loraine Lipphard?"
"2. Was the said writing executed and attested in due form, as
required by law?"
"3. At the time of the execution of said paper writing, was the
said Loraine Lipphard of sound and disposing mind and capable of
making a valid deed or contract?"
"4. Was said writing procured by fraud or undue influence,
practiced upon her by any person or persons?"
"5. Was the signature of the said Loraine Lipphard procured by
force exercised upon her by any person or persons?"
Barnard, J., presiding at the trial of the issues, directed the
jury to find the third, fourth, and fifth issues in favor of the
caveatees, on the ground that the evidence was insufficient to
warrant the jury in finding a verdict thereon in favor of the
caveators. The first and second issues were submitted to the jury
with instructions by the court to the effect that, unless the jury
believed that the contents of the paper were known to testatrix at
the time of execution, they should find for the caveators. If,
however, they should find from the evidence that testatrix did know
the contents of the paper, and did sign the same by her mark in the
presence of witnesses, who signed the same as witnesses in her
presence, the verdict should be in favor of the caveatees. The jury
found the issues in favor of the caveatees, and the will was
accordingly admitted to probate and record May 3, 1906.
From this decree the caveators appealed to the Court of Appeals
of the District of Columbia (28 App.D.C. 355), which affirmed the
decree of the Supreme Court of the District, and thereupon the case
was brought to this Court.
Page 209 U. S. 266
The paper writing in controversy was witnessed by three credible
witnesses, all of whom testified as witnesses for the caveatees.
From their testimony it appeared that, on the twenty-seventh day of
April, 1898, Mrs. Loraine Lipphard brought the writing to the
office of Miss Parker, one of the attesting witnesses, with whom
she had long been acquainted, and told her that it was her last
will and testament, and that she wanted it attested by three
witnesses. Two other witnesses with whom she was also acquainted,
one of them for forty years, were procured, and, all three being
present, testatrix declared the paper writing to be her will and
signed it by her mark thereto in the presence of all the witnesses,
and they signed their names thereto as attesting witnesses in her
presence. The testatrix was at the time of sound mind and capable
of making a valid deed or will. The will was not read in the
presence of the witnesses, and after the testatrix had subscribed
her "mark" and the will had been witnessed, it was handed to her
and she took it away with her. After Mrs. Lipphard's death, the
will was produced by Rev. Mr. Meador and given by him to an
attorney, who lodged it in the office of the register of wills.
Evidence was adduced on the trial on behalf of the caveators
that Mrs. Lipphard could not read or write, and she was a licensed
midwife and had a great number of cases; that the title to the real
estate devised by the will was originally in her husband; that in
March, 1857, he put a trust on the property, and it was
subsequently sold thereunder; that he afterward took title to the
property and again it was sold, and then the title was taken in the
wife's name. The husband's testimony tended to show that he was
improvident. Testatrix was an energetic woman and a good wife. Part
of the property when purchased was vacant land. In 1894, this land
was improved by two houses. Testatrix made the contract for the
erection of these houses and attended to the building of the same.
The husband and wife had lived happily together for sixty-five
years.
Page 209 U. S. 267
The will devised and bequeathed the entire estate of the
testatrix to the Rev. Chastain C. Meador in trust: (1) to pay all
funeral expenses and debts; (2) for the use of her husband, Adolph
F. Lipphard, during his life; (3) to pay the expenses of said
husband's last illness and funeral; (4) upon the death of the
husband, to divide the same among children named, according to the
directions therein contained, the trustee also being appointed
executor. The real estate consisted of three lots, two of which
were specifically devised to the two daughters.
Page 209 U. S. 268
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
The contention of the appellants is that, as testatrix could not
read, and as the will was not read to her at the time of its
execution, it was therefore to be presumed that she did not know
the contents of the will when she executed it, or that the jury
ought not to have been allowed to presume from the evidence
produced before them that the testatrix had knowledge of the
contents of the will.
Mrs. Lipphard brought the will with her to the office of one of
the attesting witnesses for the purpose of execution, and, after
its execution, took it away with her, and at her death it appeared
in the possession of the Rev. Mr. Meador, the executor named
therein, and by whom it was propounded for probate and record. She
declared to the witnesses that it was her will, and requested then
to attest it as such, and its provisions were reasonable and
natural. She was shown to be a woman of intelligence and business
capacity; she was in bodily and mental health and vigor when the
instrument was executed, and there was no suggestion of fraud or
undue influence in the case.
In these circumstances, the jury properly concluded that the
testatrix knew the contents of the will at the time of its
execution, and the court might well have directed such finding
unless the bare fact of the inability of testatrix to read raised a
legal presumption that she did not possess that knowledge, and the
absence of the reading of the will to her at that time was fatal.
But we know of no such presumption as matter
Page 209 U. S. 269
of law, and, on the contrary, the presumption where a will is
properly signed and executed is that the testator knows the
contents. Where there is evidence of the practice of fraud or of
undue influence, affirmative proof of knowledge of the contents may
be necessary, but not so in any other case simply because of a
presumption arising from inability to read.
Taylor v.
Creswell, 45 Md. 422, 431;
Vernon v. Kirk, 30 Pa.
224;
King v. Kinsey, 74 N.C. 261;
Hoshauer v.
Hoshauer, 26 Pa. 404;
Clifton v. Murray, 7 Ga. 565;
Doran v. Mullen, 78 Ill. 342;
Walton v. Kendrick,
122 Mo. 504;
Nickerson v Buck, 12 Cush. 341;
Guthrie
v. Price, 23 Ark. 407.
In the latter case, testatrix's name was subscribed to the will,
and between her Christian and surname was her mark in the form of a
cross. The attesting witnesses signed the will at her request, in
her presence, and in the presence of each other. She produced the
paper writing for them to attest, and declared that it was her
will, and that she desired them to witness it as such. She did not
write her name, but made her mark to the paper. It was not shown
who did write her name to the will. It was not written by either of
the witnesses, nor in their presence. Testatrix could not read, and
the will was not read to her in the presence of, or to the
knowledge of, the witnesses. The trial court instructed the jury,
in effect, that notwithstanding the will was executed in accordance
with the formalities prescribed by the statute, yet, it being shown
that the testatrix could not read, the will was invalid, unless it
was proved that it was read to her and that she was informed as to
its contents. After a review of the authorities, the Supreme Court
of Arkansas held such instruction to be erroneous, and Chief
Justice English, in the concluding part of his opinion, said:
"It was proven that she could not read, and it was not shown
that the will was read to her at the time it was executed, but it
may have been before. She produced the will herself, declared it to
be her will, asked the witnesses to attest it as
Page 209 U. S. 270
such, signed it by making her mark. She was a woman of good
sense, particular about her business transactions, and manifested
her usual soundness of mind at the time. It is not shown that she
was laboring under any feebleness of mind from disease, or
approaching dissolution. The provisions of her will appear to be
reasonable. It is not shown that any imposition was practiced upon
her, or that her sons had any agency in the preparation of the
will. It was erroneous for the court to tell the jury as a matter
of law that, it being shown that she could not read, it was
necessary to prove that the will was read to her. They had the
right to infer, from all the circumstances, that she knew the
contents of the will, though, as shown by the authorities above
quoted, in determining whether there was fraud or imposition in the
execution of the will, the fact that she could not read, and that
the will was not read to her at the time she signed it, were
circumstances to be considered by the jury."
True, the presumption that a party signing a will by mark, or
otherwise, knows its contents is not a conclusive presumption, but
it must prevail in the absence of proof of fraud, undue influence,
or want of testamentary capacity attending the execution of the
will. In the present case, there was no attempt to show that the
testatrix was not capable of making a valid deed or contract at the
date of making the will; on the contrary, the evidence showed that
she was a woman of energy, capacity, and intelligence. Nor was any
proof offered of fraud or undue influence in the production of the
will. Mrs. Lipphard brought the will, as we have said, to Miss
Parker's office for the purpose of having it executed; she declared
to the attesting witnesses the paper to which she made her mark to
be her last will and testament. She was a person of sound mind at
the date of the will, and it was executed and attested in the
manner required by statute.
It is obvious that the verdict of the jury ought not to be
disturbed and a new trial allowed unless some reversible error was
committed in the course of the trial, and appellants insist
Page 209 U. S. 271
that such error existed in the exclusion of evidence of
declarations alleged to have been made by the testatrix prior and
subsequent to the date of her will as to how she intended to
dispose, or had disposed, of her property.
Decedent's husband testified that his wife talked to him often,
prior to the date of the will, as to what she intended to do with
her property after her death, and that they talked the matter over
after the date of the will. He was asked what she said, but
objection to the question was sustained. Appellants did not state
what they expected to prove by the husband.
Albert R. Humphrey, another witness, testified that he had a
conversation with Mrs. Lipphard about two years before she died. He
was asked the following questions:
"Did she tell you how she had left her property, or how she was
going to leave it?"
"A. Yes, sir."
"What did she say to you in reference to that matter?"
To which caveatees objected, and the court sustained the
objection. Counsel for appellants stated that he desired to show by
this witness that testatrix denied leaving the property as
mentioned in the will, this being more than three years after the
will was executed.
William A. Lipphard, one of the caveators. was asked a similar
question, and, upon objection, the court made a like ruling,
excluding the evidence. He said that he had a conversation with her
in reference to her will just before her death; that she told him
how she had left her property.
Mrs. Sarah Lipphard, the wife of one of the caveators, testified
that eight or ten weeks before decedent died, she asked her if she
had made a will, and then she was asked the following question:
"What did she say in reference to what was in her will and what
she had done with her property, if anything?"
On objection by the caveatees, the evidence was excluded.
Counsel of caveators stated to the court that he desired to show by
this witness that testatrix had denied to the witness
Page 209 U. S. 272
that she had left her property as and in the manner stated in
the will.
Appellants' brief asserts that the offer was made in support of
the issue of want of mental capacity in the testatrix at the time
she made her will.
In
Stevens v. Vancleve, 4 Wash. C.C. 262, 265, Mr.
Justice Washington said that declarations of a deceased, prior or
subsequent to the execution of a will, were nothing more than
hearsay, and that there was nothing more dangerous than their
admission, either to control the construction of the instrument or
to support or destroy its validity.
In
Throckmorton v. Holt, 180
U. S. 573, MR. JUSTICE PECKHAM, speaking for the Court,
expressed the opinion, after much consideration, that the
principles upon which our law of evidence is founded necessitated
the exclusion of such evidence, both before and after the
execution; saying:
"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 such an issue [one of mental capacity] 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 sane individual, and
his declarations are admitted not as any evidence
Page 209 U. S. 273
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."
"
* * * *"
"It is quite apparent, therefore, that declarations of the
deceased are properly received upon the question of a 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."
And see In re Kennedy, 167 N.Y. 163, 176. In
Shailer v. Bumstead, 99 Mass. 123, it was ruled:
"Where a foundation is laid by evidence tending to show a
previous state of mind, and its continued existence past the time
of the execution of the will is attempted to be proved by
subsequent conduct and declarations, such declarations are
admissible, provided they are significant of a condition
sufficiently permanent, and are made so near the time as to afford
a reasonable inference that such was the state at the time in
question."
In the present case, no foundation was laid for the admission of
this evidence. Not a syllable of testimony was adduced by
appellants to show that of testamentary capacity at the date of the
will. For aught the record shows, she retained her mental powers up
to the time of her death, which took place five years and eight
months after making her will.
As we have said, appellants did not state what they expected to
prove by decedent's husband, nor what they expected to prove by the
evidence of William A. Lipphard. This witness testified on
cross-examination that he did not know his mother had made a will
until after her death. In his direct examination, he stated that
she told him, in a conversation had with her a week before she
died, how she had disposed of her property by her will.
And so the offer to prove by Albert R. Humphrey, that the
testatrix, two years prior to her death, and more than
Page 209 U. S. 274
three years after the execution of the will, denied giving her
property as provided by her will, or the similar offer made with
respect to the witness Mrs. Sarah Lipphard, wife of Adolph
Lipphard, as to alleged conversations with decedent eight or ten
weeks before her death, were at a period too remote to throw any
light upon the mental condition of the testatrix at the time the
will was made.
There was no evidence whatever of mental incapacity, and this
particular evidence was too remote to justify any reasonable
inference to that effect; and, if there was no lack of mental
capacity, then this evidence would have no tendency to show that
she did not have knowledge of the contents of the will when she
executed it and declared it to be her last will and testament.
Because she may have resisted importunity for information in
respect to what she had done, three years after she had made her
will, it does not follow that she did not know the contents of the
will when she made it. There must be some other proof, some
suspicious circumstances, some evidence of fraud or undue
influence, before evidence of conversations years after the
execution of the will should be admitted to show that she did not
know what she was doing when she made it.
Decree affirmed.
