George G. Holman and Wife v. James Riddle et al.
1. Where material words in a will were erased, and a foot note of the erasure made before the will was executed, and the words so erased were restored by the testator’s direction before he executed the will, the will must be deemed valid, although the foot note was erased by some unknown hand after the execution and attestation of the will.
2. Affidavits of jurors, stating that they misunderstood the charge of the court, will not be received on motion to set aside the verdict.
3. Exceptions may be taken to the ruling and charge of the court upon the trial of an issue contesting the validity of a will.
A On bill of review in such case, the court can only examine such matters as appear upon the record; the testimony before the jury in regard to the validity of the will being oral and forming no part of the files or record, cannot be reviewed.
S. The order of a court of probate which recites that the will was presented to the court for probate, and the subscribing witnesses were sworn and examined in open court, and their testimony was reduced to writing and filed by order of the court; and that, thereupon, the court ordered the will to be filed and admitted to record, is sufficient evidence that the will was proved in accordance with law, and ordered to be recorded.
Bill or Review reserved by tbe District Court of Hamilton county.
Tbe principal question in tbe case related to tbe validity of tbe will of John Riddle, deceased.
In 1847, tbe will was admitted to probate by tbe court of common pleas of Hamilton county.
Tbe journal entry is as follows:
“ The last will and testament of Col. John Riddle, sen., deceased, was this day presented to the court for probate, whereupon Joseph Smith and Miles Greenwood, two of the subscribing witnesses thereto, personally appeared in open court, and were duly sworn and examined by the court, and their testimony was reduced to writing and filed by order of the court; it being shown to the satisfaction of the court that Joseph G. Hunt, the other subscribing witness, is not within the State of Ohio, or the jurisdiction of this court, and cannot, therefore, be produced in court; and the court find, from said testimony, that the said Col. John Riddle, sen., deceased, was, at the time of executing said will, of legal age, of sound and disposing mind and memory, and under no undue or unlawful restraint whatsoever. And thereupon the codicil to the said last will and testament being also at the same time presented to the court for probate, and *385Jacob H. Clemmer, Ferdinand Bodman, and William Loder, tbe subscribing witnesses to said codicil, personally appeared in open court, and were duly sworn and examined by the court, and their testimony was reduced to writing and ordered to be filed, and the court find, from the testimony of said witnesses, that the said Col. John Biddle, sen., deceased, was, at the time of executing said codicil to the last will and testament aforesaid, of legal age, sound and disposing mind and memory, and under no undue or unlawful restraint whatsoever; and thereupon the court order the said last will and testament, and said codicil thereto, to be filed and admitted to record.”
August 24,1847, James Riddle filed his hill in chancery, in the superior court of Cincinnati, attaching thereto, as exhibits, twro papers in writing, one dated September 24, 1838, and the other December 30, 1845, alleging said papers to be the last will and testament of his father, John Riddle, sen., deceased, and asking, among other things, a construction thereof, and making all parties interested defendants.
In due time, George G. Holman and wife, and Joseph Jackson and wife, defendants, filed their answer to said bill, in the nature of a cross-bill, denying that said papers were the last will and' testament of the said John Riddle, sen., alleging that he died intestate, and asking the court to direct an issue to’ be made up and tried by a jury, as provided by law, to ascertain whether said papers were the valid last will and testament of the decedent or not.
An issue was made up and tried in the superior court, and the case taken by appeal to the district court. This issue was tried by a jury who failed to agree, and at the October term, 1854, of the last named court, another jury was impanneled to try said issue; and, upon the trial thereof, it appeared from the evidence that the codicil dated December 30, 1845, was copied by J. H. Clemmer, on the day of its date, from a form furnished him by Edward C. Roll. By this codicil, Eliza Jane Riddle, who intermarried with Roll, would receive upward of $40,000, in addition to what she already had received. Clemmer copied this paper in the office of A. N. Riddle, in Cincinnati, where it is claimed it was executed.
*386This codicil contained the following language, viz:
“ It is my will that the residue of my estate, both real and personal, not before devised or bequeathed, and all that has been acquired since the making of my said will aforesaid, as well as that which may hereafter be acquired, shall be disposed of by my said executors, as provided for in my said will aforesaid; and the proceeds arising therefrom to be equally divided among my sons and daughters, their heirs and assigns, except my grand-daughter, who is the daughter of James B. Ray, who, it is my will, is only, to have the amount ($500) bequeathed to her in my said will aforesaid, and no other part of my said estate, either real or personal.”
Tbe bill of exceptions shows that the contestants gave evidence tending to prove that tbe codicil aforesaid, as originally written, contained tbe words “ and daughters;” that before tbe execution of said codicil, a line was drawn through said words “ and daughters,” with a pen, and a note of the fact of their being thus stricken out, made at the foot of the attesting clause, and that after the execution of said codicil, the said words, “ and daughters,” had been restored by an erasure of the line that had been drawn through them as aforesaid, and the said foot note was erased. And evidence was given on the part of the affirmants to said will and codicil, tending to prove that the restoration as aforesaid of said words, uand daughters” and the erasure of said note, both took place before the execution of said codicil, and by the express direction of the testator.
And the foregoing, and other testimony, having been given, and the cause argued by counsel, the court charged the jury, among other things, that if the jury found that the words, “ and daughters,” were restored after the execution of the codicil, they should find a verdict in favor of the contestants, and against the validity of said paper writings, purporting to be a will and codicil, and that it mattered not, so far as the present trial was concerned, by whom or where they were restored, provided such restoration took place after the execution of the codicil; that such alteration, if made after the execution of said codicil, by whomsoever or wheresoever made, was fatal to the said *387paper writings in the present trial, for the reason that it was a material alteration, and made said codicil, as proved and recorded, and as now presented, other and different from what it was when executed. But if the jury should find that said words, “ and daughters,” were restored by the testator’s direction before he executed said codicil, and that he executed it with these words in it, intending them to form a part thereof, that then the jury should find a verdict in favor of the validity of said will and codicil, even though they should be of opinion that the note aforesaid, by which the striking out, as aforesaid, of said words, “ and daughters,” had been mentioned, was not erased until after the execution of said codicil; for that under such circumstances the erasure of said foot note would be an immaterial alteration.
And the counsel for the affirmants asked the court to instruct the jury that they would hot be warranted in finding against the validity of said paper writings, unless the testimony satisfied them beyond a reasonable doubt that said words, “ and daughters,” were restored after the execution of said codicil, which instruction the court refused to give; and, on the contrary, told the jury that the law did not require that they should be satisfied beyond a reasonable doubt; that all that was necessary was, that there should be such a preponderance of testimony as satisfied them that said alteration took place after the execution of the instrument; and that if they were so satisfied, they should find against the validity, even though they might entertain a reasonable doubt upon the subject.
“Whereupon the jury returned a verdict, finding said papers to be the last will and testament of John Riddle, senior, deceased.
And the contestants then moved the court for a new trial upon two grounds:
1st. The court misdirected the jury as to the law; and,
2d. The jury misunderstood the charge of the court in *388matters material to the issue, and acted upon such misunderstanding in finding their verdict.
And to sustain the second ground for a new trial, the contestants offered in evidence the affidavits of two jurors. They state that they understood the court to charge the jury, among other things, that all doubts must be resolved in favor of the will, and that the jury must be satisfied, beyond any doubt, that the alteration appearing upon the face of the will, or codicil, was made after the execution of the codicil, otherwise they must sustain the will; that it devolved upon the contestors of thé will to show to the satisfaction of the jury, by positive proof, when, where, and by whom the attestation was made; and if they failed to do that, the jury must find for the will, and although the jury should be satisfied that the foot-lines were erased after execution of the codicil, such alteration was immaterial, and the jury must find for the will, unless the contestors showed, by positive proof, that the woz’ds “ and daughters ” were restored after the execution of the codicil. Under these charges, they agreed to the verdict sustaining the will, though they believed, and still believe, that the erasure of the foot-line and the restoration of the words “ and daughters,” were made after the execution of the codicil. But on arriving at that belief, there was some little doubt, as no witness could speak positively as to when the words “ and daughters ” were restored, or by whom restored.
This motion was overruled by the couz-t, and the contestants excepted.
And the eouz't thereupon entered a decree, finding said papers to be the valid last will and testament of the said decedent, and dismissing said cross-bill, and directing the contestants to pay all costs.
It is this verdict and decree, which the plaintiffs, by bill of review, seek to set aside; and the questions involved were, upon motion of the contestants, resez-ved by the district court for decision in the Supz’eme Court.
*389
J. B. Baton, and T. Bwing, for complainants.
Worthington § Matthews, for defendants.
Box § French, for the executors.
J. R. Swan, J.
I. We do not perceive any error in the charge of the court. The memorandum at the foot of a will, of an erasure, which was, before the execution of the will, in fact restored by the testator, would not affect such restored part; and under such circumstances an erasure of the foot note, after the execution of the will, could not be deemed a material alteration of the will.
II. The court below refused to receive the affidavits of jurors that they misunderstood the charge of the court.
It would be a great improvement in the administration of justice, if each juror could be made to understand perfectly the testimony and the charge of the court, and deduce the truth and apply the law without mistake. But it requires but little experience to teach even a theorist that courts and jurors can only approximate to right and truth, and that the rules of law must be too general for exact justice in every case; and the truth too difficult to ascertain to be arrived at with any great degree of certainty. Law reformers who demand an exact administration of justice should begin by infusing into the moral and intellectual faculties of judges and jurors infinite knowledge and purity.
Practically, if a juror’s affidavit, stating his idea of the law as the judge had expounded it, or the facts as he understood the witnesses, were to be held sufficient to set aside a verdict, provided it should turn out that he was mistaken in any particular, scarcely any verdict could stand. Besides the improbability that, in cases of any intricacy, all the jurors would understand perfectly all the principles of law expounded to them, it would be extremely *390easy for a juror, who had been tampered with, to swear that he had formed his verdict upon such grounds as would insure a new trial, and it would be impossible to detect the collusion or punish the perjury. The practice would hold out strong inducements for suitors to tamper with jurors. Such affidavits have, therefore, upon grounds of public policy, been in general rejected by courts. Norris v. The State, 3 Humph. Rep. 333; Handy v. Prov. Mer. Ins. Co., 1 R. I. Rep. 400; Harnbarger v. Kinney, 6 Gratt. 287; Murdock v. Sumner, 22 Pick. Rep. 156; Saunders v. Fuller, 4 Humph. 516; Hulett v. Barnett, 10 Ohio Rep. 459.
The charge of the court was clear and explicit. If the verdict itself was wrong, the court could have set it aside without any inquiry into the secret operations of the minds of the jurors.
"We think the court did not err in refusing, on the affidavits of the jurors, to set aside the verdict.
III. Although we are of the opinion that a bill of review lies in a case like this, yet the proceedings of the. court of law upon the issue out of chancery, cannot be examined upon such a bill of review any further than the same appears upon the record. The testimony before the jury upon the trial of the issue in this case is not embodied in a bill of exceptions, nor brought upon the record. It is presumed to have been oral.
IY. The [probate of the will is objected to because it does not appear in the order of the probate court, admitting the will and codicil to record, that the court found the will and codicil duly attested and executed.
The statute provides:
“ Sec. 16. If it shall appear tbat such will was duly attested and executed, and that the testator at the time of executing the same was of full age, and of sound mind and memory, and not under any restraint, the court shall admit the will to probate.
“Sec. 18. Every will, when admitted to probate, as above mentioned, shall be filed in the office of the clerk of the court, and recorded, together with the testimony, by the clerk, in a book which shall be kept by him for that purpose.
“ Sec. 19. A copy of such recorded will, with a copy of the order of probate annexed thereto, certified by the clerk under the seal of the court, shall be as *391effectual, in all cases, as the original will would he if produced and established by proof.”
The order of the probate court admitting the will of Riddle to probate, omits to state that the court found that the will was duly attested and executed. .
The order of the court, however, admitting a will to probate, is the final order and adjudication upon the testimony, which is required to be reduced to writing. The objection to the probate in this case, is not one of jurisdiction ; but whether the court did its duty by passing upon or by being satisfied as to the attestation and execution of the will, before it made its order admitting the will to record.
The order itself is predicated upon the preliminary evidence, and is the legal inference from it; and in a collatteral proceeding, instead of rejecting the order admitting the will to record as a nullity, because the court omitted to state in the order the grounds upon which it was made, we must presume that the court did its duty, and based its order on satisfactory evidence.
Bill dismissed.
Brinkerhoee, Scott and Sutliee, JJ., concurred.