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Barber's Appeal from Probate.

several more or less direct references to the subject of the burden of proof upon the question of capacity. We will quote such portions of these references as seem in any way material. Early in the charge the court, having explained what coustitutes testamentary capacity, said :—“ If, gentlemen, you are satisfied by a fair preponderance of the evidence that the testator had this kind of mental capacity, understanding and strength at the time of making this will, it will be your duty to find that he was of sound mind, and upon this issue render a verdict for the proponents and in favor of the will. If, on the other hand, you are not satisfied by a fair preponderance of evidence that the testator, at the time of executing this will, had the kind of mental strength and capacity which I have been describing to you, it will be your duty to find that he was not of sound mind, and your verdict should be for the contestants and against the will. The burden of proof as to the soundness of mind of the testator lies, in every case, on the parties relying on the will, and they must satisfy you that it is the will of a capable testator, and when the whole matter is before you, on evidence given on both sides, if the evidence does not, by a fair preponderance of it, satisfy you that the will is the will of a competent testator, you ought not to affirm by your verdict that it is. In other words, if, when the whole matter is before you on the evidence given on both sides, it is left uncertain whether or not the testator was of sound mind, then it is left uncertain whether a person of sound mind, within the meaning of our statute, has made the will, and the will should not be sustained. In the course of the trial the balance of evidence may fluctuate from one side to the other, but the burden of proof remains where it was at the outset, upon the advocates of the will, and unless, at the close of the trial, the balance is with the advocates of the will, unless the beam of the scale tips down on the side of the advocates of the will, they must fail. It is not sufficient that the scales stand evenly balanced. There must be a fair preponderance in the proponents' favor to justify a verdict sustaining a will. As I have before said to you, no person

Barber's Appeal from Probate.

unless of the age of eighteen years and of sound mind can dispose of his or her property by will. Hence, when the advocates or proponents of the will present the instrument, they must satisfy you by a fair preponderance of the evidence that the deceased, at the time he executed the will, belonged to the class of persons who by law can make wills." Towards the close of the charge the court said :—“In the case at bar the burden of proof is upon the executor to show that Mr. Barber was, at the time of the execution of his alleged will, of a sound and disposing mind, and if upon the whole evidence you are uncertain whether at the time of the execution of said alleged will he was of sound mind or not, then it is left uncertain whether, under the statute, he was capable of making a will, and it is your duty to render a verdict for the contestants. And I will further add, that to render a will invalid because of unsoundness of mind of the testator, it is not necessary to show that at the time of making the supposed will he was demented or an imbecile and wholly deprived of sense. It is sufficient if you are satisfied by a fair preponderance of the evidence that he was affected with an insane delusion or delusions, and that the provisions in his will were the product of such insane delusion or delusions."

The proponents, in their reasons of appeal, complain that this charge of the court, and especially the matter contained in the last quotation, (as well as in several other portions of the charge which we have deemed it unnecessary to quote,) was confusing and contradictory. Confining our comments to the language quoted, we are constrained to say that it appears to us that there is some apparent foundation for this criticism. Taking the language used strictly, and without qualification, there would seem to be three conflicting rules, each distinctly stated; first, that the burden of proving that the will was the sane act of the testator, by a fair preponderance of evidence, lies“ in every case,” and remains throughout the trial, upon the proponents of the instrument; second, that the burden on the proponents is not that of proof by a fair preponderance of evidence, but by such evidence as brings certainty upon the point to the minds

Barber's Appeal from Probate.

of the triers; third, that in order to defeat the probate of a will on the ground of its being the product of an insane delusion or delusions, the jury should be satisfied by a fair preponderance of evidence of the existence and effect of such delusions. If the last of these rules had stood alone, and had been so stated that the jury might be presumed to have understood it, and that it was their duty to be guided by it, the proponents' ground of complaint against the charge, which we are at present considering, could be dismissed. But, taking the language which we have quoted as a whole, (and there is nothing elsewhere in the charge wbich in any manner explains or modifies it,) it is not only possible to see how the jury may have been misled, but it is impossible to see how it could have been otherwise. The statement twice made in different portions of the charge, that " if, when the whole matter is before you, on the evidence given on both sides, it is left uncertain whether or not the testator was of sound mind, then it is left uncertain whether a person of sound mind, within the meaning of our statute, has made the will, and the will should not be sustained," would, as it appears to us, be likely to impress the jury and remain in their minds as the salient feature of the charge. Such a principle, if correct, would have the advantage of being most easy to understand and to apply. The trouble is that it is manifestly incorrect; vone the less because it appears to be a quotation from the language of the Supreme Court of Massachusetts, in the case of Crowninshield v. Crowninshield, 2 Gray, 524, 534, and so much so that it would be injustice to the learned judge to believe that he intended it to be understood, or believed that it would be understood, by the jury literally, strictly, and without qualification, as by the word “equally,” before “uncertain,” or by the other language which immediately preceded and that which immediately followed it, as it seems to us, neyertheless, that it must have been. On this ground, therefore, it must be held, (as further claimed by the proponents,) that the charge of the court was erroneous.

But a question of more general interest and importance

Barber's Appeal from Probate.

remains to be considered, in reference to the portion of the charge which states as the rule that the burden of proof as to capacity, by a fair preponderance of evidence, remains in every case and throughout upon the proponents of the will. The inquiry is whether this is a correct statement of the law and practice in this state, or rather, what the correct rule and principle is.

In considering this question an examination at length of the decisions in other jurisdictions would be of little practical utility, for the slightest inspection will disclose an irreconcilable conflict of views and opinions upon the subject. Thus, in 2 Greenleaf's Evidence, 15th ed., $ 689, it is said in the text: “In regard to insanity or want of sufficient soundness of mind, we have heretofore seen that though, in the probate of a will, as the real issue is whether there is a valid will or not, the executor is considered as holding the affirmative, and therefore may seem bound affirmatively to prove the sanity of the testator, yet we have also seen that the law itself presumes every man to be of sane mind until the contrary is shown. The burden of proving unsoundness or imbecility of mind in the testator is therefore on the party impeaching the will for this cause;" while, in a note to the same section, authorities are first given in support of the doctrine stated in the text, and then it is said that “it is not so held universally, and the better rule is that the burden of proof, both of the execution and of the capacity of the testator, is upon him who attempts to set up the will." Authorities in support of that statement are then given, and the note then ends with these words :-“ Indeed, the question of the burden of proof in a plea of insanity is one which is variously decided,” a statement which, satisfactory or not, is doubtless correct. We shall therefore, so far as a consideration of the authorities elsewhere is concerned, content ourselves with saying that, while in some of the states the burden of proving want of capacity is held as stated in the text of Greenleaf to be throughout upon the contestants of a will, in others, and perhaps most, either by virtue of statutes or in accordance with the decisions of the courts of last resort,

Barber's Appeal from Probate.

affirmative proof of sanity is required from the proponents, but that, generally speaking, in such jurisdictions, notwithstanding such requirement of affirmative proof of capacity, the general presumption of sanity is held to continue, and that if the evidence is balanced, and so doubtful, such presumption should prevail. Trish v. Newell, 62 Ill., 196; Carpenter v. Calvert, 83 id., 62; Delafield v. Parish, 25 N. York, 9; Hawkins v. Grimes, 13 B. Monroe, (Ky.,) 257. Or else it is held that on formal proof of capacity by the attesting witnesses, the burden of the proponents has been discharged, and thereafter rests upon the party alleging incapacity. Sloan v. Marwell, 2 Green's Ch., (N. J.,) 563; Yoe v. MoCord, 74 Ill., 33; Mayo v. Jones, 78 N. Car., 402; Thompson v. Kyner, 65 Penn. St., 368; Egbert v. Egbert, 78 Peni. St., 326; Rich v. Bowker, 25 Kan., 7; Cole's Will, 49 Wis., 179. Important cases illustrative of these views are Perkins v. Perkins, 39 N. Hamp., 163, and Taff v. Hosmer, 14 Mich., 309. In the former case the court said :-“ That every man is presumed to be sane is abundantly proved by the authorities. We think that although the subscribing witnesses, if they can be produced, must be examined in relation to the soundness of the testator's mind, yet the party propounding a will for probate is under no general duty to offer any evidence of the testator's sanity, but may safely rely upon the presumption of the law that all men are sane until some evidence to the contrary is offered.” And it was further said that, though the burden of proof is upon the party who asserts the validity of the will, and this burden remains upon him until the close of the trial, he need introduce no proof upon this point until something appears to the contrary. In Taff v. Hosmer, COOLEY, J., delivering the opinion of the court, said :-“ The party assuming the burden of establishing a will has not supposed himself bound, in his opening, to go further than to give evidence by the subscribing witnesses of these facts, which would make out, primâ facie, a valid testamentary instrument, and has left all further evidence on the subject of mental capacity to be brought in by way of answer to that adduced by the contestant. The evi

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