also competent as bearing upon the condition of the testator's mind with reference to the objects of his bounty."

In Robinson v. Hutchinson, Justice Isham (at p. 47) expresses the conclusion reached by the court as to the admissibility of such declarations as follows: "The true rule and distinction on this subject we apprehend is given in 2 Phil. Ev. (in notes by Cowen & Hill) 648, in which the editor remarks that the difficulty seems to lie in acting upon the distinction between declarations going to develop the operations of the mind, and those containing the assertion merely of a distinct fact. The former are admissible, the latter not.'"

In Mooney v. Olsen, supra, the conclusion reached by the court is thus expressed by Mr. Justice Brewer on page 77 of the opinion: "While declarations are not admissible as mere impeachment of the validity of a will, they are admissible as evidence of the testator's state of mind. A man's words show his mental condition. It is common to prove insanity by the party's sayings as well as by his acts. One's likes and dislikes, fears and friendships, hopes and intentions, are shown by his utterances, so that it is generally true that whenever a party's state of mind is a subject of inquiry, his declarations are admissible as evidence thereof. In other words, a declaration which is sought as mere evidence of an external fact, and whose force depends upon its credit for truth, is always mere hearsay, if not made upon oath, but a declaration which is sought as evidence of what the declarant thought or felt, or his mental capacity, is of the best of evidence."

Turning now to the New Jersey decisions. An examination of them shows that there has been much vacillation of judicial view upon the admissibility of the declarations of a

testator.

In the case of Den v. Vancleve, 2 South. 589, Justice Southard, on page 676 of the case, declared that antecedent declarations of the testator were competent to rebut a charge that the will was the result of fraud or imposition exercised upon him, saying "the allegation and proof were that testator was imposed on and did not speak his own will. Was it not a proper answer that he did what for twenty years he had in

tended to do, and, therefore, there could be no imposition? And if this be a proper answer shall not the defendant be permitted to prove it, and can it be proved in a better way than by the testator's acts and declarations? I am aware of none." Chief Justice Kirkpatrick considered that the declarations were not competent for the purpose indicated, and Justice Rossell expressed no opinion upon the subject.

In Day v. Day, 2 Gr. Ch. 549, antecedent declarations of the deceased as to his testamentary intentions were received in evidence, and were considered by the Prerogative Court to support the conclusion that a paper offered for probate as his last will and testament was signed by him without being acquainted with its contents.

In Boylan v. Meeker, 2 McCart. 310, which was a controversy in the Prerogative Court over the probate of the will of Jonathan M. Meeker, and where the allegation of the caveators was that the paper offered for probate was not the genuine will of the deceased, it was held that it was competent for the caveators to show that the provisions of the contested will were contrary to the expressed intentions, views and feelings of the deceased before the time at which it bore date.

In the later case of Boylan ads. Meeker, 4 Dutcher 274, which was an action in ejectment between the same parties, and where one of the questions in issue was whether or not the alleged will of Meeker was a forgery, Justice Whelpley, in delivering the leading opinion for the Supreme Court, expressly refused to follow its earlier decision in Den v. Vancleve, and after a review of many of the cases upon both sides of the question, concluded that "the decision of the case upon principle, and the great weight of authority, requires the rejection of evidence of the testator's declarations, whether made before or after the execution of a will, either to support or destroy its validity, when the declarations are offered as evidence of the facts declared, and not as showing soundness or unsoundness of mind." Opinion, p. 294.

The first case where this question was mooted in this court, so far as my examination of our decisions has disclosed, was the celebrated one of Harris v. Vanderveer's Ex

ecutor, 6 C. E. Gr. 561, decided ten years after Boylan ads. Meeker. One of the questions litigated in that case was whether the signature of Dr. Vanderveer to his will had been fraudulently procured without a full knowledge on his part of its contents. Both sides put in evidence declarations of the deceased showing his testamentary intentions. Those declarations were received without objection, and were considered, not only by the court below, but by this court, in reaching a conclusion upon the merits. Justice Van Syckel, who delivered the opinion of this court, was careful to guard against the conclusion that this court, by its action, affirmed the admissibility of such evidence by the following statement: "It is proper to say that it is not intended to intimate any opinion as to the admissibility of the testator's declarations before and after the execution of the will; they have been used in the argument on both sides without objection, each party claiming a benefit from them." This statement was undoubtedly called forth by the fact that the prior decisions of the Supreme Court and the Prerogative Court were not in harmony upon this question, and that this court was not willing to declare itself upon the one side of it, or the other, until appropriate occasion for doing so should arise.

In the case of Rusling v. Rusling, 9 Stew. Eq. 603, the question was again touched upon by this court. A caveat had been filed against the will of Gershom Rusling, deceased, upon the ground that it was the product of undue influence. The caveators offered to prove declarations of the testator respecting the conduct toward him of the favored legatees. The purpose of the offer was to prove the facts stated by the deceased. On the trial in the court of first instance, before the late Chief Justice Beasley and a jury, that distinguished jurist stated in his charge that the declarations were not competent for that purpose; that they were only competent for the purpose of showing the effect upon the testator of the exercise of the alleged power or dominion which the favored legatees were said to possess over him. Added weight is given to the Chief Justice's exposition of

the law by the fact that he presided in this court when Harris v. Vanderveer's Executor was decided. Chancellor Runyon, when the case came into the Prerogative Court for review, thus dealt with the question: "That charge (i. e., the charge of the Chief Justice to the jury) was in accordance with the settled law on the subject in this state, although it has never been so declared, indeed, by the court of last resort." See his opinion, 8 Stew. Eq. 129. When the case came into this court Justice Dixon, delivering the unanimous opinion of the court, thus deals with the question (at p. 607): "These declarations are not admissible as evidence of the facts which they were offered to prove. When undue influence is set up in impeachment of a will the ground of invalidity to be established is, that the conduct of others has so operated upon the testator's mind as to constrain him to execute an instrument to which, of his free will, he would not have assented. This involves two things-first, the conduct of those by whom the influence is said to have been exerted; second, the mental state of the testator, as produced by such conduct, which may require a disclosure of the strength of mind of the decedent and his testamentary purposes both immediately before the conduct complained of and while subjected to its influence. In order to show the testator's mental state at any given time, his declarations at that time are competent, because the conditions of the mind are revealed to us only by its external manifestations, of which speech is one. Likewise the state of the mind at one time is competent evidence of its state at other times not too remote, because mental conditions have some degree of permanency. Hence in an inquiry respecting the testator's state of mind, before or pending the exertion of the alleged influence, his words, as well as his other behavior, may be shown for the purpose of bringing into view the mental condition which produced them, and, through that, the antecedent and subsequent conditions. To this extent his declarations have legal value. But for the purpose of proving matters not related to his existing mental state, the assertions of the testator are mere hearsay. * * * There is

no legal principle upon which they can be treated as evidence. of acts constituting undue influence. The weight of authority touching this matter is in accordance with true principle, but it is not necessary here to review the cases. In Boylan ads. Meeker, 4 Dutcher 274, Justice Whelpley refers to many of them, examining the point with much care; and more recently, in Shailer v. Bumstead, 99 Mass. 112, Justice Colt has discussed the subject with great clearness of discrimination, the conclusions in both opinions being that at which we have arrived." From a cursory reading of the concluding portion of this extract it might be thought that this court concurred completely in the views expressed by Justice Whelpley in the Boylan ads. Meeker case. But this is clearly not so. The only question for determination in the Rusling case was whether the declarations of a testator were evidential of the facts referred to in them. The conclusion reached was that they were not. This conclusion is identical with that reached both in Boylan ads. Meeker and in Shailer v. Bumstead. The question whether such declarations were admissible to show the state of mind of a testator -his testatmentary intentions-was not before the court, and what was said by Justice Dixon upon that point, as well as what was said by Chief Justice Beasley and Chancellor Runyon in the earlier stages of the case, was purely obiter. That Justice Dixon's view upon that point was no part of the conclusion which he declared was the same as that expressed in Boylan ads. Meeker and Shailer v. Bumstead is apparent, not only from the fact that those two cases are absolutely opposed to one another upon this question, as the above-cited extracts from the opinions in those cases show, but also from the further fact that the conclusion in the Boylan ads. Meeker case upon this point is opposed to his own obiter expressions in the case he was considering.

In Gordon's case, 5 Dick. Ch. Rep. 397, 424, declarations of the testator "which made for or against the authenticity of the disputed will" were held by Chancellor McGill, sitting as Ordinary, to be incompetent, on the authority of Boylan ads. Meeker and Rusling v. Rusling. The purpose