Florey's Executors v. Florey

GOLDTHWAITE, J.

The objections taken by the plaintiffs in error to the testimony of the witness, John W. Florey, cannot be sustained. The rule, of late years, has been conclusively settled, that upon questions of insanity, a witness whose acquaintance with the party has been such as to enable him to form a correct opinion as to his mental condition, may not only depose to facts conducing to establish the unsoundness of his mind, but may also, in connection with those facts, give his own opinion upon the question of sanity or insanity. —Norris v. The State, 16 Ala. 776, and cases there cited; Baldwin v. The State, 12 Mo. 235; Stewart v. The State, 19 Ohio 307; Potts v. House, 6 Ga. 324. It was shown, in the present case, that the witness had been intimately, acquainted with the deceased for thirteen years, and had frequently been at his house for weeks together; and under the influence of the rule we have stated, we do not entertain a doubt, that his opinion, as to the mental condition of the deceased, based upon the facts sworn to by Mm, was competent to go to the jury, in connection with those facts.

2. Neither can the objections made, in the court below, to the admission of the declarations of William Singleton, one of the persons named as executor, be sustained, for the reason that the bill of exceptions shows, that this evidence was, by the charge of the court, excluded and withdrawn from the consideration of the jury ; and although the practice of admitting illegal evidence, and afterwards excluding it, is discountenanced, from its obvious tendency to work injustice, in consequence of the difficulty of eradicating from the minds of the jury the impression which the evidence may have made (Carlisle v. Hunley, 15 Ala.), yet, as the record shows a clear and unequivocal charge, excluding it from the consideration of the jury, however much we may condemn the practice, we cannot, under these circumstances, presume that any injury has been the result of its admission.

3. On the trial, the plaintiffs in error requested the court to charge, “that, if the jury believed from the evidence that undue influence was exercised on the part of any one of the legatees, and not as to the others, the will was void only as to those who participated in the fraud” ; which was refused. *248 We were, at first, of tlie opinion that this charge should have been given; but more mature reflection has satisfied us, that there was no error in refusing it. We agree, that where a legacy has been given through undue influence, it does not necessarily have the effect of rendering the whole will void. It is in accordance with the dictates of reason, and the principles of natural justice, that fraud or undue importunity, on the part of one legatee, should not affect the other legacies which are the rosiiit of the free will of the testator. To this extent the authorities go. —Swinburne on Wills, 884; Trimlestown v. D’Alton, 1 Dow, N. S., 85. It is, however, equally clear, that if the fraud or undue influence on the part of one of the legatees affects the whole will, then no portion of it can stand. —1 Will. Ex. 39; Swin., Pt. I, § 4, pl. 1. The charge, as requested, asserts the proposition, that, although the entire instrument may have been the result of undue influence on the part of one of the legatees, it is good as to all but the parties who exerted the influence. This proposition, as wc have seen, cannot be sustained.

The correctness of the charge given by the court, that the will was void if it was the offspring of an insane delusion, existing at the time of its execution in the mind of the testator, as to Edward G-. Elorey being his son, depends, as we think, entirely upon the question, whether the evidence, as shown by the record, was of a character which would authorize the charge to be given. If there was any evidence, tending to show that Edward GL Elorey was not, in fact, the son of the testator, and the belief that he was so was but the result of a mental delusion on his part, it was competent, however slight it may have been, to go to the jury; and it was their province, and theirs only, to determine the weight to which it was entitled. The testimony on this point tended to show, that while both the testator and his wife were white persons, Edward G-. Elorey was of mixed-blood, and that he exhibited, plainly, the peculiar marks of the negro in his person — that his color was that of the mulatto, and Ms hair woolly. The physiological fact, that a white man cannot be the father of a mulatto child by a white woman, is, at the present day, as well settled as the opinion qf scientific men can settle any question of that nature ; and *249 we apprehend, that in cases of legitimacy, the presumption arising from a child being born in wedlock, might be rebut- ■ ted by proof of this character. It follows, therefore, necessarily, upon these premises, that if the testator and his wife were white, and Edward G-. Elorey of negro blood, he could not have been their child — that the testator could not have been his father ; and if his blood was clearly evidenced by the distinctive and peculiar marks of the negro, we think the belief of the testator, in opposition to this evidence, was admissible, for the purpose of showing delusion upon this particular subject. The belief, it is true, might have been the result of ignorance, rather than delusion ; but so may a belief in witchcraft, and most other irrational or absurd opinions. Common observation and daily experience have fully demonstrated, that an irrational belief more frequently results from eccentricity, ignorance or association, than from insanity. Still, however, as irrationality is one of the results of derangement — one of the indicia by which it manifests itself — it follows, that either acts or opinions, which are in themselves irrational, are proper to b.e submitted to the jury, and are entitled to more or less weight according to circumstances. There are opinions so contrary to reason, that none but a person of unsound mind could entertain them; and, on the other hand, there are those which, although irrational, may be attributed to the causes we have before assigned, rather than to derangement; and in cases where the disease is not clearly and plainly marked, insanity, either partial or total, should not be predicated upon acts or opinions which may properly be referred to any other cause. If, however, partial insanity, or monomania, is established, and the will is the result of such insanity, the act is vitiated. This we understand to be the proposition asserted by the charge under consideration ; and its correctness, as a legal proposition, has been considered as settled, since the judgment of Sir John Nichol in the case of Dow v. Clark, 3 Add. 79 ; S. C., 2 Eng. Eq. Rep. 436. But upon this point, also, we would limit our decision to the operation of the rule as applicable to the whole will. It may be, that where the derangement is partial,- and its results are confined to but one portion of the will," the *250 pi'ovisions which are xxot at all affected by such derangement would be valid. This question, however, wc do xxot consider as presented upon the record, and we do not wish to be understood as intimating an opinion upon it. The charge which was given by the court went to the will as a whole, and in that aspect it was unquestionably correct.

It results from the views we have expressed, that the judgment must be affirmed.