McIntire v. Worthington

Robinson, J., delivered the opinion of the Court. Richard S. Hardesty died in 1885, leaving a paper purporting to be his will dated in 1870, and also a codicil ²⁰⁶ attached thereto dated 1885. To each of these alleged testamentary papers a caveat was filed by the appellants; and upon issues sent by the Orphans’ Court to a Court of law for trial, the verdict was in favor of the caveators, and the alleged will and codicil were declared to be invalid. Thereupon, a petition was filed in the Orphans’ Court, by W. C. Worthington, and John S. Gittings, alleging that the said Hardesty in November, 1882, made a last will and testament, in which the petitioners were appointed executors, and which will, the testator afterwards, when he was mentally incapable of understanding the nature of his act, directed to be destroyed ; and the petitioners tendered a draft of said will for probate.

To this petition, answers were filed by the appellants in the nature of a caveat to said will, and upon the petition and answers, issues involving the execution of said alleged will, the testamentary capacity of the testator and undue influence, were sent to a Court of law for trial. These issues it is unnecessary to set out at length, because they are the usual and ordinary issues in a case of this kind, and which have time and again been approved by this Court. The appellants however tendered a supplemental issue to the effect, that although the said Hardesty may have executed in 1882, a paper purporting to be his will, containing a clause of revocation, and which was valid as a revocation of all former wills, yet the jury might find he was incompetent at that time, to make a valid will. This issue assumes, that some other, or higher degree of testamentary capacity is required in the execution of a will, than is required in its revocation.

The law however recognizes no such. distinction. The act of - revocation implies a capacity on the part of the testator, to understand fully the testamentary disposition of his property, already made among those whom he recognized as entitled to his bounty, and an intention at the same time to change ²⁰⁷ either in whole or in part the disposition thus made. And testamentary capacity—soundness of mind and memory— is as requisite in the revocation of a will as it is in its execution. Besides this, another supplemental issue was tendered hy the appellants, to the - effect, that if the said Hardesty did in 1882 execute a paper-writing purporting to be his will, which operated as a valid revocation of all former wills, and there was inserted in it a clause or clauses purporting to be a disposition of his entire estate, to the exclusion of the appellants, was such disposition to their exclusion, procured by undue influence exercised and. practised upon him?

We have had some difficulty in understanding precisely what is meant by this issue. It was argued in support cf it that one part of a will may be invalid by reason of undue influence, and other parts unaffected by such influence may be valid. This is true, it does not follow because a particular devise or bequest is void, that all other devises or bequests are void; this depends upon whether the alleged undue influence affects the whole will. Trimlestown vs. D’Alton, et al., 1 Dow. & Clark, 85 ; Allen vs. McPherson, et al., 1 H. L. Cases, 191; In Re Welsh, 1 Redf., 238 ; Florey’s Ex’rs vs. Florey, 24 Ala., 241 ; Harrison’s Appeal from Probate, 48 Conn.,