The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1869-08-25
The Steenrod Will Case,
The Opinion Delivered by the Hon.
z: Maxwell, J., in the Supreme
Court Of Appeals of West Virginia.

George W. Thompson and others, Appellants, !
Josiah F. Updegraf and others, Appellees. }
A bill was filed in the Circuit Court
of Ohio county tAtcontest the validity
of the will of Daniel Steenrod, deceased.
The court made an order. that jury
should be empannelled at the bar OF the
said court, on the chancery side thereof,
to ascertain and determine by their YER
diet the issue whether the testamentary
papers admitted to probate In the said
court, on the law side, at the May term
thereof, 1864, as the will OF Daniel
Steenrood, deceased, late of Ohio coun-
ty, be, or either or any of them be, the
will of said Daniel Steenrod, deceased,
or not. e
| A jury was accordingly empannelled
and sworn well and truly to try the
issue, whether the testamentary papers
admitted to probate in the said court
on its law side at its May term thereof,
1864, as the will of Daniel Steenrod,
deceased, late of Ohio county, be or any
or either of them be the will Of said
Daniel Steenrod, deceased, or not. The
Jury found that "the papers before
| us purporting to be the last will
and testament and codicils thereof of
Daniel Steenrod, deceased, are not, nor
is either of them, the last will and
testament and codicils thereof of said
Daniel Steenrod, deceased" The court
rendered decree in accordance with
the verdict of the jury from which an
appeal has been taken to this court.
| There are numerous bills of exceptions
in the record and four causes of error
are assigned by the appellants in their
petition.
The first cause of error assigned is
that the court erred in admitting the
evidence set out in petitioners first
bill of exceptions.
The petitioners first bill of exceptions
recites chat, on the trial of the issue in
this cause the defendants called up as a
witness Eliza Steenrod, and offered to
prove by her that the testator, after the
execution of the will, informed her that
the Thompsons-meaning George w.
Thomson and Elizabeth his wife-a
devisee in the will, did not want him
to give anything to the children of Ed
ward Steenrod, deceased son of the
testator; that this evidence was offered
for the purpose of proving the declara-
rations of the devisees which evidence
was objected to by the counsel for the
plaintiffs in the issue, but the court
overruled the objection and decided
that the declarations of any of the
plaintiffs in the issue was proper evi.
dence, and admitted the evidence 80 Of
fered to be given"
The ground on which this evidence
was admitted, as stated by the court in
the bill of exceptions, was that the
declarations of any of the plaintiffs in
the issue was proper evidence. How
far this statement is correct, is not ma
terial to inquire, because the bill of ex
captions does not disclose an effort to
prove the declarations of any of the
plaintiffs. 1t was an effort to prove
that the Thompsons did not want the
teststor to give anything TO the chill
dren of Edward Steenrod, deceased, son
of the testator. How the Thompsons
had manifested their wishes does not
appear. There is no effort to prove
their acts or declarations. 1t is simply
an effort to prove the supposed fact by
proving the declarations of the
testator made in respect to
it. This is hearsay evidence and is
clearly improper. SO far as it was in
tended to prove the acts, declarations or
wishes of the Thompsons or either of
them, by proving the declarations of
the testator the Court erred in it's ruling.
1t is claimed, however, that the evil
dence is proper to prove the declara-
tions of the testator for the purpose of
tending to prove that the will was pro-
cured to be executed by undue inilu-
ence.
The authorities fully sustain the po-
sition that such declarations are admis- |
sable in evidence for the purpose of
showing the state, condition and opera
atoms of the mind of the testator at the
time of the execution of the will.
Robinson rs Hutchinson, &c Vt, Rep,
46; Rambler as Tryon, Z S and Rawle
"a; Irish as Irish s S and Rawle, 373.
McTaggart rs Thomson, IA Penn,
State r. 149; Nelson rs Oldfeld, . Yer
non, 76: Matthews rs Warner, Yes. Jr.,
1856; Pemberton rs Pemberton Is Yes. JT.
300
Ii was therefore proper that the evi.
dence of the declarations of the testator
should 90 to the jury to be given by
the Jury such weight as they might see
proper, for the purpose of showing the
state, condition and operation of the
mind of the testator, but for no other
reason.
This class of evidence is dangerous in
its character and is to be received with
great caution. The only legitimate pur-
pose of this sort of evidence is to show
a condition of mind in which its free
agency may be easily overcome by the
improper influences of those surround.
ing the testator, and to lay the founda.
ton for the introduction of other and
more direct testimony, showing that
such improper influences were in fact
exerted. The declarations themselves
are no evidence that improper intiu-
ences were exerted.
If the declarations of the testator had
been proved for the purpose of showing
the condition of his mind, such evil
dence would have been properly admit
ted. But the bill of exceptions eX-
pressly negatives this idea, and certities
that the evidence was offered for the
purpose of proving the declarations of
the devisees, for which purpose as be,
fore stated, it was clearly improper and
should not have heen admitted.
The second cause of error assigned is
that the court erred in rejecting the
evidence set out in petitioners second
bill of exceptions, and the third cause
of error is the same as the second, only
it applies to the third bill Of exceptions
The second and third bills of excep'
tions are substantially one and the same
thing, but vary somewhat in form.
1t appears from bill of exceptions No
3 that the testator had executed codi-
Gil OH the 25th day of January, iool'
which was in evidence before the jury,
in which he stated that he had hereto
fore made his will and codicil thereto
relating to his negroes, and especially
to his servant Learn, in which he had
beoueathed to her ten shares OF the
bank stock of the North Western BANK
and revoked the said bequest and be-
oueathed the said stock to another;
that for the purpose of explaining the
reference made in this codicil to the be-
L. ,NrnnnlnAArG nt the