Batton v. Watson

¶1 By the Court.

¶2delivering the opinion.

¶3[1.] The first assignment of error in this record which we *66are called oñ to review is, the admission of the evidence of Alexander Everett to the Jury, as to the conversation he had with Doctor Patillo the evening the will Avas destroyed.

¶4The Court admitted the evidence, on the ground that it was part of the res gestee, and in our judgment, properly admitted it. This species of evidence is not admissible, as a general rule, unless it groAvs out of the principal transaction, illustrates its character, and is contemporaneous vrith it. Carter and Wife vs. Buchanan, 3 Kelly, 517. 1 Greenleaf's Ev. §108. The principal transaction here is, the destruction of Coalson’s Avillby the undue influence and interference of Doctor Patillo. The will Avas executed on the 25th of June, and on the next day, after the will had been sent for, but before it is brought to Coalson, the witness hears loud and boisterous talking in the sick room; recognizes the voice to be that of Patillo, but cannot understand what is said. Shortly afterAvards witness Avent into the sick room, and Doctor Patillo invited him into the parlor, when ho stated, “he just had learned that Coalson had made a will, cutting off Sarah; that it was not such a will as he had expected; that he, Patillo, would not submit to it; that he would resist it at the threshold; that he Avould make Sarah sign away Avhat was given to her, and would take her home, and support her as he had done; that she should not have a dime of the property, and that he had said that much to Jack. Dr. Patillo seemed excited.” This conversation Avas intermediate the time the Avill had been sent for to Toolce and its return to Coalson the same evening. When Tooke brought the Avill to Coalson, it Avas destroyed by him. This evidence tends to illustrate what took place in the sick room when the witness heard the loud and boisterous talking, and Avas made during the time the will was sent for and its return; therefore, a part of the transaction which finally resulted in the destruction of the Avill. These declarations also went to shoAV the motive by which the party charged Avith having exerted the undue means to procure the destruction of the will, was influenced. It was urged on the argument, that Patillo was a competent Avitness to prove the same facts, to *67which Everett testified. The reply is, that Dr. Patillo is the principal party charged with having procured the destruction of this will, and those who are attempting to set it up, are not obliged to rely upon the testimony of the principal actor in the supposed fraud. Bridges vs. Eggleston, 14 Mass. Rep. 249. Davis vs. Spoone, 3 Pickering’s Rep. 287. Allen vs. Duncan, 11 Pickering, 310.

¶5' There was no error in admitting the copy will to be read in evidence, on the testimony of Tooke and Shine, as to its being a substantial copy of the one destroyed.

¶6[2.] We find no error in the charge of the Court to the Jury. The charge assumes the law to be, that if the testator was unduly induced by fear, favor or affection, or any other cause unduly exercised, to destroy his will, and such undue influences operated as a pressure and restraint upon the deceased, under the circumstances in which he was placed at the time, so as to take away his free and voluntary mind and will, and so continued up to his death, then the will ought to be set up. The plaintiffs in error certainly have no just ground of complaint against this charge: for the Court, in our judgment, put the case to the Jury in a pretty strong point of view for them. Although the Jury set up the will by their verdict, yet, we think it is extremely doubtful whether the deceased did not intend, after all, to die intestate; but it was the exclusive province of the Jury to pass upon the evidence submitted to them, and having done so, we have no legal power to interfere with their verdict, under the circumstances disclosed by the record in this case.

¶7Let the judgment of the Court below be affirmed.