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statements as to matrimonial

Evidence

for him independ- Intok joint names.

dence was excluded we are at a loss party.

party. Furthermore, the section is to understand. The but declaratory of a most elemen

claim of the con tary rule of daily application in the experiences.

testants was essen trial of cases. The rulings were tially that Carson had deceived the nothing less than a flagrant denial testatrix by lying to her. How

of a common, everyday right of evthey could be expected to prove that

ery litigant. he had lied to her, except by evi

The court also excluded evidence dence of lying statements by him, that shortly after her marriage the we do not see. Such statements are

testatrix transferred her bank acnot hearsay. They are not intro

count into the joint names of herself duced to prove the truth of the mat

and Carson. The rejection of this ters stated or narrated in them. On

evidence was not particularly prejuthe contrary, the position of the con

dicial; but we think it must be evitestants, who were offering the evi

dent that in a case of this sort, dence, was that the statements were

where one of the vital questions is false. The making of false statements by Carson was an essential

whether the bequest to Carson was fact, which the contestants were en

induced by and based upon the betitled to prove, just as much as they lief of the testatrix that he was her were entitled to prove any material lawful husband, or fact in the case. That it was a ver

upon her affection

transferring bal fact, an utterance by someone,

into joint names. does not prevent its being proved, ently of that belief, and the only way of proving it is by

any evidence throwing light upon testimony of someone who heard it.

the relations of the parties, or upon It is also immaterial when these her feelings toward him, would have false statements by Carson to the some bearing, and that very considtestatrix were made, whether be erable latitude of examination fore or after the making of the will. should be permitted. The alleged deception by Carson The contestants also make the was one extending to the death of point that, even if the testatrix the testatrix, and evidence of this knew the actual facts with regard to deception at all times to the end was Carson, but mistakmaterial.

enly believed that he

Will-mistake Another inexplicable line of rul was free to marry, ings was one whereby the contest such mistaken belief alone would viants were not permitted to examine tiate the will. This, of course, canCarson as to his previous marriages. not be true. Mere mistake, which The court even refused to permit a does not in effect show a want of question of Carson as to whether he

execution of the will, or, what is the did not know when he married the

same thing, a want of testamentary testatrix that a former wife of his

intent as to a portion of it, is not a was living, and this on the court's

ground of contest. Code Civ. Proc. own motion and without any objec- $ 1312; Re Benton, 131 Cal. 472, 63 tion to the question being made by Pac. 775; 40 Cyc. 1143. Furthercounsel. The impropriety of such

more, in Re Donnely, 68 Iowa, 126, rulings is beyond argument, and we can conceive of no reasonable excuse

26 N. W. 23, the identical contention for them. The court's attention

under discussion was presented and was specifically called to $ 2055,

denied. Code of Civil Pro There are no other points which Witness

cedure, adopted in would seem to require consideraexamination of

1917 (Stat. 1917, p. tion. previous marriages. 58), which express

Judgment reversed. ly permits of just such an examination of an adverse We concur: Shaw, J., Lawlor, J.

-effect.

man ng to

ANNOTATION.

Fraud or mistake as to relationship or status of legatee or devisee as affecting

will.

а

Although in some instances, as in 5 Myl. & C. 145, 41 Eng. Reprint, 326, the reported case (RE CARSON, ante, 9 Sim. 615, 59 Eng. Reprint, 495, 9 L. 239), the method of approach indi J. Ch. N. S. 110, 14 Jur. 261, it is said cates that fraud on the part of the that the court must be satisfied that beneficiary, if shown to exist, will the assumed character was the motive necessarily vitiate a bequest, the de of the bounty. cisions herein reviewed, taken as And in Smith v. Diggs (1916) 128 whole, demonstrate that it is imma Md. 394, 97 Atl. 712, it is said that the terial whether a testator's mistake as inquiry is always directed to whether to the relationship or status of a bene the reason for the legacy is traceable ficiary is induced by a suppression of alone to the falsely assumed characthe truth on the part of such benefici ter. ary, or by a misapprehension to which In Re Dries (1903) 69 N. J. Eq. the beneficiary did not knowingly con 475, 55 Atl. 814, it is said: “There tribute; and that the true rule is that can be no doubt that if a woman at or the validity of the bequest will depend before a marriage ceremony repreupon whether the supposed relation sents herself to be competent to marship or status constituted the motive ry, or conceals the fact that she was for the gift. The testator's knowledge not so qualified, and thereafter her of the facts in the case is, therefore, supposed husband makes a will in her material, not as negativing fraud on favor because he believes her to be the part of the beneficiary, but as his wife, and it turns out that she showing that the supposed relation had, and knew she had, another husship was not the motive for the be band living when she married the tesquest; and the beneficiary is to be tator, such testamentary disposition deprived of his legacy, not because he will be held void. To avoid a will has acted in bad faith, but because upon this ground, however, represenhe does not satisfy the implied condi tation concealment should be tion upon which it was given.

fraudulent, and it should appear, not Thus, in Giles v. Giles (1836) 1 necessarily that they were made to Keen, 685, 48 Eng. Reprint, 471, 5 L. J. induce the execution of a will, but Ch. N. S. 46, s. c. sub nom. Penfold that they did induce its execution." v. Giles (1836) 6 L. J. Ch. N. S. 4, it

The decisions, therefore, appear to is said that a mere wrong description warrant the

the following generalizaof a legatee will not defeat a legacy,

tions: but if a legacy is given on account of 1. Where the testator is shown to the character involved in the descrip- have been aware of the facts, though tion, and that character has been im deceived as to their legal effect, his posed by a fraud on the testator, the mistake as to relationship or status legacy will be bad.

is immaterial, and the bequest will And in Re Boddington (1883) L. R. take effect, as it will be presumed 22 Ch. Div. (Eng.) 597, it was said that relationship was not the motive. that in order that such rule may come

See Re Donnely (1885) 68 Iowa, 126, into operation two things must exist: 26 N. W. 23; Re Dries (1903) 69 N. J. First, the false assumption of the Eq. 475, 55 Atl. 814; Taylor v. Higgs character by the legatee; and, second (1911) 202 N. Y. 65, 95 N. E. 30; ly, there must be evidence

Giles v. Giles (1836) 1 Keen, 685, 46 presumption or inference that that Eng. Reprint, 474, 5 L. J. Ch. N. S. false character was the motive of the 46, s. C. sub. nom. Penfold v. Giles testator's bounty.

(1836) 6 L. J. Ch. N. S. 4; Meluish So, also, in Rishton v. Cobb (1839) v. Milton (1876) L. R. 3 Ch. Div.

or

or

a

son

(Eng.) 27, 45 L. J. Ch. N. S. 836, 35 110, 4 Jur. 261; Re Petts (1859) 27 L. T. N. S. 82, 24 Week. Rep. 892; Re Beav. 576, 54 Eng. Reprint, 228, 1 Hammond [1911] 2 Ch. (Eng.) 342, L. T. N. S. 153, 29 L. J. Ch. N. S. 166 80 L. J. Ch. N. S. 690, 105 L. T. N. S. s. C. sub nom. Re Pitt, 5 Jur. N. S. 302, 27 Times L. R. 522, 55 Sol. Jo. 1235, 8 Week. Rep. 157; Turner v. 649.

Brittain (1863) 3 New Reports (Eng.) 2. Testator's ignorance of the facts 21. cannot be inferred, but must be affirm 5. When a bequest is made to a peratively shown. See Moore v. Hein

under a particular character eke (1898) 119 Ala. 627, 24 So. 374; which he has falsely assumed, and Wenning v. Teeple (1895) 144 Ind. which alone can be supposed the mo189, 41 N. E. 600.

tive of the testator's bounty, the law 3. Where the beneficiary is shown will not permit him to avail himself to have acted in good faith, and the of it, and therefore he cannot demand testator has been deceived by his own his legacy. See the reported case (RE misapprehension of the situation or CARSON, ante, 239); Smith v. Diggs by the misrepresentations of a third (1916) 128 Md. 394, 97 Atl. 712; Re person, it does not necessarily follow Dries (1903) 69 N. J. Eq. 475, 55 Atl. that the bequest is valid; but whether 814; Baker's Will (1876) 2 Redf. (N. it will take effect or not will depend Y.) 179; Tilby v. Tilby (1884) 2 Dem. upon whether the supposed relation (N. Y.) 514; Ex parte Wallop (1792) ship or status was the sole motive for 4 Bro. Ch. 90, 29 Eng. Reprint, 794, making it. See Howell v. Troutman 2 Dick. 767, 21 Eng. Reprint, 469; (1860) 53 N. C. (8 Jones, L.) 304; Kennell v. Abbott (1799) 4 Ves. Jr. Kennell v. Abbott (1799) 4 Ves. Jr. 802, 31 Eng. Reprint, 416, 4 Revised 802, 31 Eng. Reprint, 416, 4 Revised Rep. 351, 25 Eng. Rul. Cas. 480; Giles Rep. 351, 25 Eng. Rul. Cas. 480 (obi v. Giles (1836) 1 Keen, 685, 48 Eng. ter); Standen v. Standen (1795) 2 Reprint, 471, 5 L. J. Ch. N. S. 46, s. C. Ves. Jr. 589, 30 Eng. Reprint, 791; sub nom. Penfold v. Giles (1836) 6 L. Re Davenport (1852) 1 Smale & G. J. Ch. N. S. 4; Wilkinson v. Joughin 126, 65 Eng. Reprint, 55; Wilkinson (1866) L. R. 2 Eq. (Eng.) 319, 35 L. v. Joughin (1866) L. R. 2 Eq. (Eng.) J. Ch. N. S. 684, 12 Jur. N. S. 330, 14 319, 35 L. J. Ch. N. S. 684, 12 Jur. N.

L. T. N. S. 394. S. 330, 14 L. T. N. S. 394; Re Lowe

Mistake as to legality of marriage re(1892) 61 L. J. Ch. N. S. (Eng. ) 415, lation. 40 Week. Rep. 475; Anderson v. Berk

A bequest will not be held void as ley [1902] 1 Ch. (Eng.) 936, 71 L. J.

having been procured by fraud on the Ch. N. S. 444, 50 Week. Rep. 684, 86

part of the beneficiary, where, alL. T. N. S. 443, 18 Times L. R. 531. though the evidence tends to show

4. Even though the beneficiary has that at the time he married the testabeen guilty of concealment or misrep trix he had a wife living, there is a resentation, the bequest will not fail total lack of any evidence that at the of effect if it appears that the gift time she executed the will, she was might have been made for some other deceived as to the past life of her husreason; and it is immaterial whether

band, and hence that the execution the deception was for the purpose of of the will was induced by any decepinfluencing the testator. See the re tion or fraud. However strong the ported case (RE CARSON, ante, 239); probability that a woman would not Smith v. Diggs (1916) 128 Md. 394, 97 marry a man with knowledge of such Atl. 712, s. c. on subsequent appeal in facts as are shown, or, having married (1917) 130 Md. 101, 99 Atl. 952; Re him in ignorance of such facts, would Janes (1895) 87 Hun, 57, 33 N. Y. not, after becoming informed of them, Supp. 968, affirmed without opinion in give all her property to him by will, (1897) 152 N. Y. 647, 46 N. E. 1148; the law will not presume that she had Rishton v. Cobb (1839) 5 Myl, & C. no such knowledge from the mere 145, 41 Eng. Reprint, 326, 9 Sim. 615, fact that she did marry him, and did 59 Eng. Reprint, 495, 9 L. J. Ch. N. S. devise all her property to him. Moore

v. Heineke (1898) 119 Ala. 627, 24 dering such decree either void or voidSo. 374.

able. The fact that the alleged wife of In Tilby v. Tilby (1884) 2 Dem. the testator, to whom he left his prop (N. Y.) 514, a will by which testator erty, was married to another man and left all his property to his wife was had not been divorced from him at held invalid on the ground that the the time of her marriage to the tes wife, being fully apprised of her tator, is not of itself sufficient to incapacity to contract a valid maravoid the will. Wenning v. Teeple riage, had wilfully and fraudulently (1895) 144 Ind. 189, 41 N. E. 600. kept the testator in ignorance of it.

A bequest by a woman to a man to In Kennell v. Abbott (1799) 4 Ves. whom she had been married is not Jr. 802, 31 Eng. Reprint, 416, 4 Rerendered invalid by the fact that he vised Rep. 351, 28 Eng. Rul. Cas. 480, had a wife living from whom he had a legacy to the supposed husband of never been divorced, where at the the testatrix was held invalid where time she made the bequest the testa it appeared that he concealed from trix had full knowledge of all the her the fact that he had a wife living. facts affecting the character of her In Giles v. Giles (1836) 1 Keen, 685, relations with the devisee, although 48 Eng. Reprint, 471, S. c. sub she may have been mistaken as to nom. Penfold v. Giles, 6 L. J. Ch. their legal effect, and have believed N. S. 4, it was held that the legathat her husband was competent to tee's right to a provision made for her enter into a valid marriage contract. by testator, who designated her as his Re Donnely (1885) 68 Iowa 126, 26 wife, was not defeated by the fact N. W. 23.

that she had another husband living, A bequest is not invalid as having where it did not appear that she had been made in the belief that the bene a guilty knowledge which the testator ficiary was the testator's legal wife, did not share, the court saying: “In where it appears that she herself the present case the testator, as well believed that she was free to marry as Mrs. Penfold, had both an actual and had disclosed to the testator the knowledge of the existence of John facts upon which such belief was Penfold in the year 1815; and it was based. Re Dries (1903) 69 N. J. Eq. not more the duty of Mrs. Penfold 475, 55 Atl. 814.

than it was the duty of Thomas Giles, A bequest to a wife is not vitiated the testator, to ascertain that John by the fact that her divorce from a Penfold was dead before they venformer husband was invalid, where it tured to proceed to the ceremony of a appeared that the testator was aware marriage between themselves. There of the defect in the divorce proceed is no more reason why I should imings. Taylor v. Higgs (1911) 202 N. Y. pute to the plaintiff a fraud upon the 65, 95 N. E. 30.

testator than to the testator a fraud In Baker's Will (1876) 2 Redf. (N.

upon the plaintiff; which of them was Y.) 179, a testamentary provision by

guilty, if either of them, must depend a woman for her husband, made with

upon circumstances which are not bein a few months after a secret mar

fore the court. If both had a guilty riage, was held to have been vitiated

knowledge, no fraud was committed

upon the testator; and however imby fraud, where it appeared that her

moral the conduct of the parties, it is scruples against marrying the bene

no part of the duty of courts of equity ficiary, occasioned by a doubt as to the

to punish parties for immoral conduct validity of his divorce from a former

by depriving them of their civil wife, had been overcome by an opinion rights.” of counsel that, assuming the correct In Re Davenport (1852) 1 Smale & ness of the facts submitted to them

G. 126, 65 Eng. Reprint, 55, where tesby the husband, such divorce was tator gave a sum of money in trust for valid, where it appeared that there his nephew for life, and from and imwere facts known to the husband ren mediately after his decease, in case

woman

as

the nephew's wife should survive him, of marriage with the testator after to her for life, and afterward in trust so great a lapse of time, although the to pay the capital among his nephew's inquiries made by her as to whether children, it was held that a woman her former husband was still living with whom the nephew had cohabited were not very carefully prosecuted. for many years, and who was sup In Turner v. Brittain (1863) 3 New posed by the testator to be his neph- Reports (Eng.) 21, where a testator ew's wife, although she was not such bequeathed the income of a certain in fact, was not entitled to the income sum to his son for life, and after his of the trust fund, there being nothing decease "unto Harriet, the present to indicate that she was personally wife of” said son, should she survive known to the testator, or known to him, during her life, it was held that him in such a way as to lead to the Harriet, with whom the son had lived inference that she was intended by as his wife, might claim the benefit the reference to the nephew's wife, or of such provision, there being no evito justify the court in arriving at the dence that the false representation conclusion that no other person but made by the son and herself to the her was in the testator's mind when testator, that they were married, had he framed the gift. The vice chan been made for the purpose of obtaincellor said: "Suppose, for example, ing the legacy. the nephew had survived the testator, In Wilkinson v. Joughin (1866) L. R. and married, and afterwards died; 2 Eq. (Eng.) 319, 35 L. J. Ch. N. S. 684, there would, in that case, be in ex 12 Jur. N. S. 330, 14 L. T. N. S. 394, istence a person exactly answering where testator, who had married a in every respect the legatee described

representing herself in the will, namely, the nephew's wife. widow, but having, to her knowledge, Could there be a doubt that, under a husband living, made a provision these circumstances, that wife would for her under the designation of "my be entitled to the legacy? Yet, accord wife Adelaide,” it was held that, as ing to the construction I am invited she had imposed upon the testator, the to put upon this will, I should be bequest was wholly void. bound to declare that the wife of In Meluish v. Milton (1876) L. R. G. C. Davenport did not answer the 3 Ch. Div. (Eng.) 27, 45 L. J. Ch. N. S. description contained in the will, but 836, 35 L. T. N. S. 82, 24 Week. Rep. that this poor lady, who, it is con 892, it was held by the vice chancellor ceded, was not the wife of the testa that it could not be considered that tor's nephew, is, nevertheless, accu

the character of lawful wife was the rately described as his wife. Much only motive for the gift of testator's as I regret the result, I am bound to entire estate to his wife, where it declare that she is not entitled under appeared that at the time of the marthese words to the testator's bounty." riage the testator was aware that

In Re Petts (1859) 27 Beav. 576, 54 there was no certain evidence of the Eng. Reprint, 228, 1 L. T. N. S. 153, death of a former husband. 29 L. J. Ch. N. S. 168, s. c. sub nom. In Re Lowe (1892) 61 L. J. Ch. N. S. Re Pitt (1859) 5 Jur. N. S. 1235, 8 (Eng.) 415, 40 Week. Rep. 475, testaWeek. Rep. 157, where testator made tor, believing his brother to be legally certain provisions for his "wife," not married to the woman with whom he mentioning her by name, and it ap was living as his wife, left property peared that the

to whom in trust to pay the income to the testator was married was not lawfully brother for life, and after his death his wife, she having a husband living to "the present wife of my said whom she had left nineteen years be brother Joseph, if she shall become fore, and whom she believed to be his widow," during her life. It was dead, it was held that the testator in held that the wife was entitled to the tended to benefit her, and that she had provision, the phrase, “if she shall not done anything to forfeit the pro become his widow," being held equivavision by going through the ceremony lent to, "if she shall survive him."

woman

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