Wittman v. Goodhand

Bartol, J., delivered the opinion of this Court. The paper exhibited as the last will of John Goodhand, ■deceased, was executed and attested in such form as to pass personal estate, and the property therein named being leasehold will pass under it, unless the caveat of the appellants be sustained. The execution of the paper is not denied, but the objections to its validity, relied on by the appellants, are: Eirst. That it was obtained by undue influence exercised over the testator by the appellee, who was his wife. ■Second.

That it was obtained by fraud. Third. That the paper was fraudulently concealed by the appellee after she had been directed by her. husband to destroy it, and is therefore inoperative as a will and void. 1st. As to the alleged undue influence: The proof shows, that at the time of executing the will, the-testator was of sound mind, and though not in robust health, was far from being in a weak or enfeebled condition.

The paper does not appear to have been executed in the presence of his wife, — -Mrs. Goodhand, the appellee, is the only witness who speaks on this point; she states that she knew nothing of the execution of the paper until it was handed to her by him signed and attested. Both the witnesses, Tucker and Smith, who were called to support the caveat, state that the deceased declared to them his intention to make such a will, and informed them afterwards that he had done so. These witnesses state, that he said to them, in 1861, “he was greatly troubled by his wife in reference to making a will, that she desired him to make provision for her daughter, Ida.” But there is no evidence of any such undue influence exercised over him ¹⁰⁵ in procuring the execution of the paper as would render it invalid. In Davis vs. Calvert, 5 G. & J., 302 , it is said : “That degree, therefore, of importunity or undue influence which deprives a testator of his free agency, which is such as he is too weak to resist, and will render the instrument not his free and unconstrained act, is sufficient to invalidate it.” Sir John Niciioll, in the case of Kingleside vs. Harrison, 2 Phillimore, 551, observed, “that importunity, in its correct legal acceptation, must be in such a degree as to take away from the testator his free agency.” This record certainly furnishes no evidence of any such importunity or undue influence in procuring the execution of this will.

On this point, the testimony of Wittman, one of the caveators, has been chiefly relied on in the argument. He states that Gfoodhand, after the execution of the will, told him what he had done, and said: “I had to do it, William, to have some peace ; if I did not she would worry me to death.” This testimony is excepted to on the ground that the verbal declarations of a testator, made after