#### Irwin and Wife *et al. versus*West *et al.*

1. In an issue *devisavit vel non,*the declarations of one of the devisees, as to the capacity of the testator, are not evidence to affect his co-devisees or co-legatees.

2. The fact that the relations of testator did not procure a commission of lunacy against him is a circumstance to he weighed by the jury with other facts in the case, in passing on the testator’s capacity.

*158October 13th, 1874.

Before Agnew, C. J., Sharswood» Williams, and Mercur, J J.

Error to the Court of Common Pleas of *Allegheny*County, of October and November Term, 1874, No. 147.

This was a feigned issue to determine the validity of the will of Matthew H. West, Sr , deceased.

On the 30th of February, 1872, Matthew H. West, Jr., a son of decedent, presented to the register for probate the will of decedent, dated July 29th, 1871, and codicils dated respectively October 7th and 11th of the same year. Elizabeth Noble, Eliza Irwin, Agnes Neal, children, and PI. W. McClure, Robert McClure, W. F. McClure, and Samuel PI. McClure, grandchildren of decedent, filed a caveat on the grounds that the testator, when the instruments were executed, was not of sound mind, and that their execution was procured by undue influence, and by the fraud and coercion of his sons, devisees under the will and codicils. ..

The register, on the 7th of June, 1872, issued his precept to the Court of Common Pleas, and upon the same day the court directed a feigned issue between Matthew PI. West, Jr., the executor in the will, as plaintiff, and the caveators as defendants.

The case came on for trial before Collier, J., on the 3d of December, 1873, when Samuel G. West, Johnston G. West, Edward E. West, and Robert G. West, devisees under the will and codicils, were added as plaintiffs.

The will gave to his sons, Samuel, J ohnston, Matthew, Edward, and Robert, all his real estate, and divers chattels; to bis, daughters he gave legacies ranging from $20 to $1500. By the codicils he increased the legacies to his daughters Sarah and Elvah to $5000 each, and changed the devisee to one of his sons into a trust for him.

There was much evidence given for the purpose of sustaining the allegations in the caveat, and in answer to it.

The defendants proposed to prove by a witness on the stand that, on the day the last codicil in evidence was executed, and while they were awaiting the arrival of Samuel A. Wilson, who had been sent for, Edward E. West, one of the plaintiffs in this issue, stated in the pi’esence of this witness, and at the house of her father, that they must not touch the will until Wilson came ; and, if they did, he wmuldblow it up, as they all knew he was not fit to make a will.

The plaintiffs objected to the evidence proposed as incompetent and illegal. The offer was renewed, with the qualification that the evidence was offered against Edward E. West alone. The court rejected the eyidenee and sealed several bills of exceptions.

*159The plaintiffs’ point and answer were as follows:

.... In Pennsylvania any relative who has reason to believe that a party is of unsound mind, may apply to the court and have a commission as to the sanity or soundness of his mind, and if he is found of unsound mind, the court will appoint a trustee to take care of his person and estate [and the fact that relatives permit a man to dispose of his property is weighty evidence that he is of sound mind].

Answer. Affirmed, except the part in brackets, which is qualified as follows: The weight to be attached to the alleged fact is entirely for the jury.

The verdict was for the plaintiffs. The defendants took a writ of error, and assigned for error the rejection of their offers of evidence and the answer to the plaintiffs’ point.

*G. T. Oliver*and *M. W.*Aeheson, for plaintiffs in error.

*Marshall*and Patterson, for defendants in error.

The evidence was inadmissible, as tending to destroy the title of the other devisees and legatees by the declaration of a devisee not under oath: Lightner *v.*Wike, 4 S. & R., 203; Bovard *v.*Wallace, Id., 499 ; Nussear *v.*Arnold, 13 Id., 323; Hawberger *v.*Root, 6 W. & S., 431. As to the answer to the point they cited: Stevenson *v.*Stevenson, 9 Casey, 471.

Judgment was entered in the Supreme Court, October 26th, 1874.

Per Curiam :

The evidence rejected, in this case, of the declarations of Edward E. West, one of the plaintiffs in the issue, falls within the ordinary rule as to the inadmissibility of the devisees or legatees under a will to affect his co-heirs or co-legatees.

The answer to the plaintiffs’ point was not erroneous. The judge was not bound to say that the circumstance of a writ *de lunático inquirendo*was not taken out by the relatives was *weighty*evidence of the testator’s soundness of mind. He left the weight of the circumstance to the jury under the facts of the case; nor can we say this was error. That it is a circumstance cannot be gainsaid, and it may have more or less weight, according to the other circumstances surrounding the case. Undoubtedly the relations have a right to proceed by the writ mentioned, so that nothing was left to the court but to affirm this, and to leave the omission to proceed in that way as a mere circumstance which the jury might judge of as the facts appeared before them.

Judgment affirmed.