209 U.S. 264
ADOLPH F. LIPPHARD, William A. Lipphard, Adolph F. Lipphard, Jr., et al., Plffs, in Err. and Appts.,
IDA P. HUMPHREY, John F. Pyle, George B. Anderson, et al.
Argued March 20, 1908.
Decided April 6, 1908.
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 [209 U.S. 264, 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:
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. [209 U.S. 264, 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 27th 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. [209 U.S. 264, 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.
Messrs. Chapin Brown, Charles H. Baumannd J. P. Earnest for plaintiffs in error and appellants. [209 U.S. 264, 268] Messrs. B. F. Leighton and C. Clinton James for defendants in error and appellees.
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 mat- [209 U.S. 264, 269] ter 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, 50 Am. Dec. 411; Doran v. Mullen, 78 Ill. 342; Walton v. Kendrick, 122 Mo. 504, 25 L.R.A. 701, 27 S. W. 872; 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:
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 [209 U.S. 264, 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:
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:
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 [209 U.S. 264, 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 Den ex dem. Stevens v. Vancleve, 4 Wash. C. C. 262, 265, Fed. Cas. No. 13,412, 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 , 45 L. ed. 673, 21 Sup. Ct. Rep. 474, 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:
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And see Re Kennedy, 167 N. Y. 163, 176, 60 N. E. 442. In Shailer v. Bumstead, 99 Mass. 123, it was ruled:
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 [209 U.S. 264, 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.