JESSE CHANDLER and others vs. BENJAMIN FERRIS, 1 Harr. 454

The Chief Justice stated his recollection of the practice. He knew of no decision in the common pleas while he was at the bar or on the bench in that court. He recollected three cases in the supreme court in which the opening and conclusion were given to the caveators. He referred to James Robinson’s will; to Wilson Buck-master’s, and Thomas Cubbage’s. . In all of them the questian was formally made and decided. The issue on Grubb’s will in this county was not argued, and the question was therefore not raised. A case has also occurred in Kent, the only one in this court: the case of Masien vs.

Anderson et al. where the executor did open and conclude, but the matter passed sub silentio and the regularity of the proceeding was not called in question. We are not to be governed by the question who affirms or who denies in the issue; but where is the onus probandi. The burthen here is upon the caveators; they do not deny the execution of the will, but set up insanity and such an influence exercised by others over the testator’s mind as will vitiate the will.

After the formal proof of the paper, the executor might fold his arms until the caveators produced something to overthrow his case which is prima facie established by the production of the will and the inference of law in favor of sanity. We are of opinion that the caveators have the opening and conclusion. Bayard, for caveators, contended, that if they had not made out a case of actual insanity, they had shown the testator to be a man of exceeding weak intellect; enfeebled both in mind and body by age and disease.

That the will was made under circumstances of strong suspicion, without the knowledge of his relatives, by a person who sustained to him the relation of a counsellor and attorney; a will violating natural affections; contrary to ascertained previous determinations; in favor of a class of people towards whom Thomas Chandler was known to have entertained antipathies, and for an object not only wild and visionary, but in our state of society and political condition, wicked in its character and dangerous in its tendency.

In tracing out its consequences, he read from a pamphlet published by William Lloyd Garrison, entitled “Thoughts on African Colonization,” with a view of showing his sentiments and those of the antislavery society in relation to negro slavery. He read extracts to prove—First. That the author was in favor of the immediate abolishment of slavery in this country, pp. 58, 59. Second. That he was not only for emancipation, but insisted on remunerating the slaves for years of unrequited toil and labor, &c. p. 85. Third. That he denied the legal right of any one to hold a slave. Fourth.

That he was for amalgamation, pp. 145-6-7. Fifth. For instruction and subsequent admission to all the trusts, offices and honors of the republic, p. 80. Sixth. And that he was for a negro college, as the means of effecting these objects. Mr. Bayard insisted that the jury were bound to regard the character of the bequests in forming an opinion of the sanity of a testator, and that a will might contain so absurd and unnatural a disposition of property as to afford sufficient evidence in itself of insanity; and he cited 1 Cox Ch. cases, 355; 3 Merivale 84; 3 Eng. Eccl. Rep.; 1 Adams Ecc. Rep. 99; Evans vs.

Wright; Shelford on Lunatics, 174, in Law Library, Nov. 1833, 178, Swinburne on Wills, 478-9. Latimer, Read, jr. and Rogers, contra. The question of the policy or impolicy of the bequest to a negro college is not a subject for the consideration of the jury; they are only to decide whether such was the will of Thomas Chandler. The jury have before them a paper, regularly executed, which declares that such was his will; and it is admitted that they must so find it to be unless the other side prove that such was not his will. The burthen of proof lies with them.

The proof has totally failed on the subject of insanity. With the exception of the diseases incident to advanced life, nothing has been proved tending to show even imbecility. And in relation to these diseases the physicians, whose testimony is to be taken on this subject in preference to the opinions of others, prove that they were not of a character to affect the mind. The particular disease under which he labored was asthmatic, and not paralytic, as some persons, unskilled in the nature of diseases, have ventured to assert.

He continued to transact his usual business down to and after the date of the will; collecting interest on his bonds, mortgages and stocks; calculating interest and making probates, when necessary; arid so late as the month of July, 1833, his deposition was taken by Mr. Gray on a commission from chancery, and he was then considered by the commissioner to have been of perfectly sound mind. If the testator was of sound mind this will must stand, unless it has been proved to have been made under the operation of an influence counteracting his own purposes and violating his own wishes.

No mere advice or solicitation, no persuasion or argument, will vitiate a will: it must be an importunity, such as the testator is too weak to resist; a degree of solicitation that deprives him of his free agency, and compels him to adopt another man’s will for his own. 3 Stark. 1707; 2 Phil. Ev. 449; 1 Ecc. Rep. 340, 344; 2 do. 231. And the procuring a will to be made will not vitiate it, unless fraud has been practised on the testator. 3 Serj. & Rawle 267; Miller vs. Miller.

What evidence is there in this case of any influence whatever having been exerted over the mind of Thomas Chandler, much less of an undue influence? The jury cannot presume fraud. Fraud must be proved. And yet they are called on in this case to presume in the first place, against the evidence, that Thomas Chandler was so weak as to be very liable to imposition; and then to presume that William Lloyd Garrison and the whole anti-slavery society have been engaged in circumventing this old man, to induce him to make a will contrary to his own wishes. How stands the fact in relation to the testator’s previous views?

For several years he is proved to have had the amelioration of the condition of the blacks at heart. In his will of 1831 he made a liberal bequest to the African school, and a large one to the Colonization society. But the written instructions for the will of 1833, prepared by himself and written with his own hand forever put at rest any idea of undue influence on the part of Benjamin Ferris or any one else.

These instructions are so identical in language in many parts with the will of 1831 as to show that he had that will before him when they were drawn up; and they have been carried out with sufficient accuracy in the will which is now the subject of discussion. 2 Ecc. Rep. 219, 269. A legacy in the instructions left out of the will is, not of itself sufficient to invalidate the will. J. M. Clayton, in reply, relied chiefly on the discrepancies between the instructions and the will. He insisted that they were not even in substance the same.

The instructions directed the disposal of the residue of his estate for the purchase of land on which a grammar school should be founded by the benevolence of other persons; and if not so founded within seven years, that it should go over to his nephews and nieces. The will as drawn disposes of the residue for founding a college, and gives it over to the nephews and nieces only in case the said college should not be commenced within seven years, and no other funds raised towards that object.

The instructions were designed to draw out the active benevolence of other individuals in the completion of a project of which Thomas Chandler only offered the foundation, and gave the property to his next of kin in the event of its not being completed within the limited time. The will makes Thomas Chandler not only begin but complete the establishment, and gives the property away from his kindred forever on the subscription of one dollar by any other person to the same object.

It is perfectly competent for the trustees under the will, if they see proper, to subscribe every dollar of the residue of this estate to the funds of the anti-slavery society of New England, and, in conjunction with that society, to establish in Delaware, a slave holding state itself and on the borders of the southern slave holding states, an institution that shall forever wage war with their and our institutions, and shall finally overthrow them if it succeeds in its avowed objects. There is much evidence of imbecility of mind in the testator in this case; but it is not necessary for us to rely on his insanity.

He is proved, at least, to have been a man of fluctuating capacity. And when the testator’s capacity is fluctuating he is not to be considered as absolutely intestable; but to set up such a will there must be evidence of instructions and volition. 3 Ecc. Rep. 260. How stands the proof on that subject?

Here are instructions given in writing; a will drawn totally different from them; no proof of the departure from the instructions having been explained to him; no proof that the will was even read over to him; executed privately, in the presence of strangers, and in the house of the executor and. trustee and draftsman; under these circumstances we confidently ask the jury to say that the paper now before them is not the last will- and testament of Thomas Chandler. J. «/?. Bayard and J. M. Clayton, for caveators. Latimer, Read, jr. and Rogers, for executors.

The Chief Justice charged the jury, (after stating the question and reviewing the evidence,) that if they were of opinion from the evidence that the testator was capable of exercising thought and judgment and reflection; if he knew what he was about, and had memory and judgment, his will could not be invalidated on the ground of insanity. Neither could it be set aside on the ground of undue influence, unless such influence amounted to a degree of constraint such as the testator was too weak to resist; such as deprived him of his free agency, and prevented him from doing as he pleased with his property.

Neither advice, nor argument, nor persuasions, would vitiate a will made freely and from conviction, though such will might not have been made but for such advice and persuasion. Another and more material ground of objection to the will is a supposed disprepancy between it and the instructions on which it was founded and from which it was drawn. If the jury are of opinion that these differences exist to such an extent as to make the will essentially different from the instructions, they must then judge from the evidence whether these deviations were made with the knowledge and consent of the testator.

If they were not made known to him, if the will was not read over, or its contents and variations from the instructions otherwise explained to him, then this is not his will; but if he knew of and approved the alterations he adopted them by the execution of the will, and the same ought to be confirmed. Verdict setting aside the will. John Bell vs. Joseph Buckmaster et al. Supreme Court Kent, 1820; temp. Johns, chief justice. Issue—“Whether Wilson Buckmaster, at the time of making and executing the writing of the seventh January, 1819, was of sound and disposing mind, memory and understanding. ” J. M.

Clayton, for the will. Thomas Clayton, for caveators. J. M. Clayton asked the court’s opinion who had the right to open and conclude. The register has made the executor plaintiff. Per curiam. “From the nature of the issue the onus probandi is with the deft The execution is proved, and the only question is as to the testator’s insanity. The law presumes sanity until the contrary is proved.

We are of opinion that the (lefts, have the right to conclude: you may proceed to open as you please.” The jury, not being able to agree, was discharged, and the case was tried over again at a succeeding term, when this question was raised again and argued at some length. The court decided as before. John Cubbage vs. William Cubbage. Issue—devisavit vel non. Question made, which party was entitled to open and conclude. J. M. Clayton, for caveators. The burthen of proof is with us, and we have the conclusion. So decided in Bell and Buck master. Bates. This case is not like Buckmaster’s.

Here the burthen of proof is with us. We admit the general derangement of the testator, but contend that the will was made during a lucid interval; and we are to prove it. Per curiam. “The burthen of the proof is with the plff. who relies on insanity. The law presumes every person to be in his senses, and those who controvert the will must prove insanity. The plff is to open and conclude.”