#### Hoar *v.*Leaman.

On an issue devisavit vel non, the supreme court -will not reverse for a technical error unless it has materially affected the result and led the jury to a wrong conclusion.

On such issue, it is proper to offer the will in evidence, after the subscribing witnesses have testified to its execution. It is not necessary that they should testify that the testator was of sound mind at the time of the execution of the will.

On such issue, the declarations of subscribing witnesses, and of parties interested in sustaining the will, to the effect that the testator was not fit to make a will, are not admissible.

In this case, the opinion of witnesses as to mental capacity, were held admissible, from their knowledge of the testator given in evidence.

May 18, 1888.

Error, No. 113, Jan. T., 1888, to C. P. Lancaster Co., to review a judgment on a verdict for plaintiffs on an issue devisavit vel non, by Millard Leaman and others, against Jame.s Hoar and others, to try the validity of a paper purporting to be the will of -John B. Hoar, deceased, at March T., 1886, No. 53. Trunkey, J., absent.

The pleadings are not given in the paper-books.

These facts appeared, at the trial, before Livingston, .P. J.:

The decedent died in November, 188$. On Dec. 9, 188j, he executed the alleged will by which he directed that his unmarried daughters should have the homestead free of rent, but upon the marriage of all of them, etc., it should be sold, and the proceeds, with the residue of his estate, be equally divided among his children, share and share alike; but he further provided that the share of his son, James B. Hoar, should be placed in trust. The *322subscribing witnesses to the paper were James B. Martin and George Kreider.

After Martin and Kreider had testified to the execution of the paper, without stating anything more, and cross-examination being waived, the plaintiffs offered the will in evidence, [i]

The defendants objected, objection overruled and exception. The will was then read to the jury, and the plaintiffs rested.

By permission of the court, defendants re-called Kreider for cross-examination, and asked him this question: “ Q. What was the conversation between you and James B. Martin, immediately before you went in for the purpose of executing and witnessing the paper, with regard to the mental fitness of John B. Hoar to make his last will and testament ? ” [2]

Objected to, objection sustained and exception.

The defendants afterwards offered to prove by Kreider, that the witness and Martin had a conversation outside of Mr. Hoar’s house, and just before they went in to witness the will; witness asked Martin whether he could be justified that John Hoar was fit to make a will, and Martin said he thought not. [3]

Objected to, objection sustained and exception.

Kreider was also asked this question: “ Q. Did or did not Mr. Martin say to you that this alleged will was helped to be made by Letitia Leaman, one of the plaintiffs.” [4]

Objected to, objection sustained and exception.

The'defendants offered to prove by Hettie Lefevre, a witness called by defendants, that Mrs. Leaman, one of the plaintiffs, told her at different times, prior to the making of the will, that her father was not in his right mind; and that Mrs. Diehm, another one of the plaintiffs, said that her father was not in his right mind. [5]

Objected to, objection sustained and exception.

Kreider further testified that, in his opinion, the decedent was not fit to make a will at the time the alleged will was executed. Other witnesses for defendants testified to the same effect.

'The plaintiffs then called, in rebuttal, Dr. J. H. Davis, who testified, inter alia, as follows : “ I was family physician of John B. Hoar; visited him in 1881, previous to the time Dr. Smith came there; I was absent, and Dr. Smith held the case then; I saw him.-after Smith was called in in' 1881; I thought his mental condition was good; .... I was called in about January to se'e 'him; I saw him and talked with him from Februrary, 1881, to January, 1882; I thought his mental condition good, could'reason as well as ever he could; I thought him a man of good mental powers as good as average man of good habits; wouldn’t taste any stimulants ; I can’t recollect the conversation, but we frequently talked together; he spoke of the shoeing of the horse and of my absence frequently when I met him after the first time.

“ Q. Was or was not John B. Hoar, in your judgment, fit to make a will in December, 1881?” [6]

*323Objected to by defendant, objection overruled and exception.

“ A. I think he had testamentary capacity and was fit to make a will in December, 1881.”

The defendants then offered to ask the witness, Davis, whether he had not presented a bill against the estate of John B. Hoar, the payment of which had been refused by the defendants because it was exorbitant. [7]

Objected to, objection sustained and exception.

Andrew E. Moore, a witness for plaintiffs, testified: “ I recollect no illness till his last illness; was not acquainted with his illness in fall of 1881, more than I heard he was not in good health; I frequently saw him go to the shop in 1881; can’t say that I saw him work; can’t say any particular thing he done in 1881; he settled with me in 1882, in the spring.

“ Q. From your conversation with him, and your knowledge of him, and your seeing him going about nearly every day, was he or not fit to make a will ? ” [8]

Objected to, objection overruled and exception.

“ A. I believe he was.”

Benjamin Rank, a witness for plaintiff, testified as follows: “ I had borrowed money from him (decedent) in spring of 1878; saw him in spring of 1881 and 1882; I settled with him on April 1, 1881, and April, 1882, or about then; I went to the house and settled; he generally had the accounts drawn out; I had blacksmith bills, about ,$50 or more; my settlements were interest and smith bills ; he had the accounts drawn out in his book; he knew what the interest was, and the bill too ; he put it on the bonds, wrote it on himself, the amount of interest; I had paid him $1200, and we destroyed the old bond and made a new one ; I settled with him April, 1882 ; always went to the house to settle; his bills were always correct; when I paid him the blacksmith account he crossed it out, when it was paid; I may have seen him during the year sometimes; I don’t go to the shop much, I had boys; one spring I asked him if I could have the money another year; he said I could; that was in 1885; in settling he showed me his book; I could always understand him ; I knew him 30 years ; blacksmith for me from 1861.

“ Q. From your knowledge of him, your conversations with him, and business transactions with him, was he or not in your judgment fit to make a will ? ” [9]

Objected to, objection overruled and exception.

“ A. I think he was.”

Cross-examination: “ I can’t recollect any conversation with him between April, 1881, and April, 1882.”

Benjamin Fisher, a witness for plaintiff, testified: “ I had business transactions with him (decedent) in 1881, and April, 1882 ; settled my blacksmith bills ; I never settled it with any one but John Hoar; he had it in his book ; he showed me the book ; it was always satis*324factory to me and him both. I often saw him from April, 1881, to April, 1882 ; often went to his blacksmith shop; always spoke with him when I met him.”

“ Q. From your business transactions with him in April, 1881 and 1882, and your conversations with him, was he or not fit in your judgment to make a will.” [10]

Objected to, objection overruled and exception.

“ A. I don’t see why he was not; I thought he was.”

Cross-examined: “I talked to him in 1881; can’t say particularly in November, or October, or December; I don’t know he had softening of the brain ; I must have seen him in that month, but don’t know that I had any conversation with him.”

Samuel Fisher, a witness for plaintiff, testified : “ I settled my blacksmith bills and business I had with him (decedent) in 1881 and 1882. If he was not in the shop, I went and settled with him in the house; he showed me his account, he had it added up, it was correct. I had no other business except that he had got corn, and we settled it; we deducted it; he asked me the price of the corn,' it was satisfactory, and it was deducted, and we settled. We had no settlement that year except for corn and smith bill. I saw him frequently in the year 1881. I stopped at the shop and spoke to him as a friend ; can’t remember the conversations of that year. I don’t know of any conversation, but I asked him what my smith bill was, and he asked what the corn was.....I saw him frequently that year, but can’t repeat conversations. I had no trouble understanding him.”

“ Q. From your business transactions in 1881 and 1882, and your conversations with him, was he or not in your judgment fit to make a will? ” [11]

Objected to, objection overruled and exception.

“A. I always found him correct in his accounts, and he was fit to make a will, in my judgment.”

Benjamin King, a witness for plaintiff, testified: “ Knew John B. Hoar since I was a boy; went to his shop, got work done in his shop; not of late years, a new one started nearer me. I had money borrowed from him, and in spring of 1881 and 1882 I went to see him ; had no work done at his shop in 1881. Can’t recollect much of him from spring of 1881 to spring of 1882; I generally met him at the shop; if he was not there, we generally went to the house; I bid him good-morning, told him what I wanted; he had the notes in the house; he’d get the notes. He had two notes; he’d receipt on the notes the interest; he generally had it added up. I saw that it was correct, and paid it. He had no book account against me then. I paid the interest the same way in spring of 1882. I can’t recall any conversation that occurred in spring of 1881 and 1882, except what I have stated; nothing said about.my keeping the money or rate of interest. I don’t recollect seeing him after that time.”

“ Q. From your settlements in spring of 1881 and 1882 and *325your knowledge of him, did you or not consider him fit to make a will?” [12]

Objected to, objection overruled and exception.

“ A. I considered him fit to attend to his business, and I think a man who is fit to attend to his business is fit to make a will.”

Cross-examination: “ I had no conversation with him in October, November, or December, 1881, as I recollect.”

Daniel Esch, a witness for plaintiff, testified: “ Knew Hoar thirty-five years; had my work done at his shop about thirty years; I can’t recollect whether I had my work done there in 1881 or not; in spring of 1882 I settled with him for interest; I had money from him; I saw him in 1881, but don’t remember any conversation with him; in spring of 1881, I settled with him; .... in the settlements of 1881 and 1882, he acted intelligently.”

“ Q. From your settlements' with him in spring of 1881 and 1882, and your knowledge of him, was he or not fit to make a will?” [13]

Objected to, objection overruled and exception.

“ A. I never saw him in such a condition that he was not fit to transact his business or to make a will.”

Cross-examination: “ I don’t know what his mental condition was in December, 1881.”

George L. Erb, a witness for plaintiff, testified : “ Keep tollgate; knew J. B. Hoar ; toll-gate about 50 yards from the shop; I got money changed in fall of x 881, and some in spring of 1882; I had conversation with him; asked him to change it; he said he would if he had the change; he pulled his pocket-book out and looked, and gave me change for it; I wanted a note changed; he appeared all right as far as I know ; never saw anything wrong with him; had other conversations, but can’t recollect them; saw him nearly every day; he seemed all right, only in his speech.

“Q. From your business transactions, conversation and general intercourse with John B. Hoar, was he or not, in your judgment, capable of making a will?” [14]

Objected to, objection overruled and exception.

“ A. He was, as far as I know.”

Cross-examination: “ He asked me in the spring of 1881, just before April, if I was going to work at my trade in spring; can’t recollect just exactly what 'conversations we had in 1882, January or February.”

Jacob Hoar, a witness for plaintiffs, was asked this question by defendants: “ Q.- Did you, in pursuance of directions to go there (to J. Stoltzfus’), start away from your father’s house and return to the house with this answer communicated to your two sisters, Mrs. Swope and Mrs. Leaman: ‘ Joña. Stultzfus says he don’t owe Pap $4000 or any other sum? ’” [15]

Objected to, objection sustained and exception.

James Hoar was asked this question : “ Q. When Jacob Hoar *326was on the stand, we asked him whether his father was not worrying and imagining that Jonathan Stoltzfus owed him $4000, and whether he was not sent, to quiet the old gentleman, to Stoltzfus to enquire, and whether he did not return and say that Jonathan Stoltzfus said he did not owe him $4000 or any other sum, to which he said he didn’t say so, and was not so said, and didn’t make such report to the family?” [16]

Objected to, objection sustained and exception.

Martin, Mrs. Leaman and Mrs. Diehm, were not called as witnesses for the defendants until after the disallowance of the questions assigned for error, 2-5.

Dr. Smith, the attending physician at the time the will was made, testified on behalf of the defendants, that the decedent was suffering with softening of the brain and was not fit to make a will.

Verdict and judgment for plaintiff.

*The assignments of error*specified, 1-16, the rulings on the evidence, quoting the offers of evidence and referring to the respective pages of the appendix to the paper-book, but not quoting the answers or bills of exception.

*D. G. Eshleman,*with him *Z. Swope*and *B. F. Eshleman,*for plaintiffs in error.

There was error in the admission of all the testimony of witnesses who had no conversation with Mr. Hoar on or about the time the will was executed.

The usual oath administered to the witnesses to a will, on the probate thereof, includes the question whether the testator was of sound mind and disposing memory at the time of the execution of the will. In this case, that question should have been asked witnesses and answered affirmatively before the will was allowed to be read to the jury.

Martin being one of the witnesses to the will, the defendants were entitled to have his declarations about Mr. Hoar’s want of mental capacity submitted to the jury for the purpose of testing his memory and veracity.

Mrs. Leaman and Mrs. Diehm are plaintiffs and witnesses. As parties, their declarations against their interest ought to have been admitted; and as witnesses, evidence of their declarations was admissible to test their veracity.

Dr. Davis was not Mr. Hoar’s physician at the time the will was executed. He was absent from home at that time, and by reason of his absence Dr. Smith was called in. This witness was maliciously opposed to the defendants, because they refused to pay him an exorbitant bill. The evidence of that fact should have been admitted.

The offers as to the delusions about money matters should have been received.

*327Oct. 1, 1888.

*H. M. North, A. C. Reinoehl*and *C. I. Landis,*not heard, for defendants in error.

After proof of execution of the will, by both subscribing witnesses, and the waiving of cross-examination, the will was properly offered and admitted in evidence. The presumption of sanity must then be repelled. Titlow *v.*Titlow, 54 Pa. 216; Werstler *v.*Custer, 46 Pa. 502.

As to 3d'assignment, we cannot see what opinion expressed by either of subscribing witnesses would be worth, before either had seen Mr. Hoar, on day of signing, and therefore were not in a position to judge of his condition.

The 4th and 5th assignments are not material to the issue, and of no weight on the case, as the question of undue influence was not at issue.

The 7th assignment could not affect the issue, and the question was properly excluded, offered, as it evidently was, only to affect the jury with the idea of a low prejudice on the part of Dr. Davis, which no respectable physician of his character would entertain on oath.

The 6th, 8th, 9th, 10th, nth, 12th, 13th and I4th"assignments of error, are fully answered by the decisions. Rambler *v.*Tryon, 7 S. *&*R. 92; Wogan *v.*Small, n S. & R. 141.

Facts and circumstances sworn to, are the groundwork of opinions, and they are admissible in evidence. Bricker *v.*Lightner, 40 Pa.' 199.

The admission of this testimony was entirely within the discretion of the court. Wilkinson *v.*Pearson, 23 Pa. 120.

The 15th assignment is not material to the case, as there was no evidence that John B. Hoar ever said Stoltzfus owed him $4,000 or was worried about it.

Per Curiam,

An examination of this case exhibits nothing that was even technically wrong in its trial and disposition in the court below. If, however, there were such error, we would not, on that account, reverse unless we were clearly satisfied that it materially affected the result, and led the jury to a wrong conclusion.

The weight of the evidence is very decidedly in favor of John B. Hoar’s testamentary capacity, and we would be unwilling to disturb a sound and righteous verdict even on exceptions much less dubious than those before us. ■

The judgment is affirmed.