-statements as

to matrimonial experiences.

dence was excluded we are at a loss to understand. The claim of the contestants was essentially that Carson had deceived the testatrix by lying to her. How they could be expected to prove that he had lied to her, except by evidence of lying statements by him, we do not see. Such statements are not hearsay. They are not introduced to prove the truth of the matters stated or narrated in them. On the contrary, the position of the contestants, who were offering the evidence, was that the statements were false. The making of false statements by Carson was an essential fact, which the contestants were entitled to prove, just as much as they were entitled to prove any material fact in the case. That it was a verbal fact, an utterance by someone, does not prevent its being proved, and the only way of proving it is by testimony of someone who heard it. It is also immaterial when these false statements by Carson to the testatrix were made, whether before or after the making of the will. The alleged deception by Carson was one extending to the death of the testatrix, and evidence of this deception at all times to the end was material.

Another inexplicable line of rulings was one whereby the contestants were not permitted to examine Carson as to his previous marriages. The court even refused to permit a question of Carson as to whether he did not know when he married the testatrix that a former wife of his was living, and this on the court's own motion and without any objection to the question being made by counsel. The impropriety of such rulings is beyond argument, and we can conceive of no reasonable excuse for them. The court's attention was specifically called to § 2055, Code of Civil Procedure, adopted in 1917 (Stat. 1917, p. 58), which expressly permits of just such an examination of an adverse

Witness— examination of man as to previous

marriages.

party. Furthermore, the section is but declaratory of a most elementary rule of daily application in the trial of cases. The rulings were nothing less than a flagrant denial of a common, everyday right of every litigant.

The court also excluded evidence that shortly after her marriage the testatrix transferred her bank account into the joint names of herself and Carson. The rejection of this evidence was not particularly prejudicial; but we think it must be evident that in a case of this sort, where one of the vital questions is whether the bequest to Carson was induced by and based upon the belief of the testatrix that he was her lawful husband, or upon her affection transferring for him independ- bank account ently of that belief, any evidence throwing light upon the relations of the parties, or upon her feelings toward him, would have some bearing, and that very considerable latitude of examination should be permitted.

Evidence

into joint names.

Will-mistake

-effect.

The contestants also make the point that, even if the testatrix knew the actual facts with regard to Carson, but mistakenly believed that he was free to marry, such mistaken belief alone would vitiate the will. This, of course, cannot be true. Mere mistake, which does not in effect show a want of execution of the will, or, what is the same thing, a want of testamentary intent as to a portion of it, is not a ground of contest. Code Civ. Proc. § 1312; Re Benton, 131 Cal. 472, 63 Pac. 775; 40 Cyc. 1143. Furthermore, in Re Donnely, 68 Iowa, 126, 26 N. W. 23, the identical contention under discussion was presented and denied.

There are no other points which would seem to require consideration.

Judgment reversed.

We concur: Shaw, J., Lawlor, J.

Although in some instances, as in the reported case (RE CARSON, ante, 239), the method of approach indicates that fraud on the part of the beneficiary, if shown to exist, will necessarily vitiate a bequest, the decisions herein reviewed, taken as a whole, demonstrate that it is immaterial whether a testator's mistake as to the relationship or status of a beneficiary is induced by a suppression of the truth on the part of such beneficiary, or by a misapprehension to which the beneficiary did not knowingly contribute; and that the true rule is that the validity of the bequest will depend upon whether the supposed relationship or status constituted the motive for the gift. The testator's knowledge of the facts in the case is, therefore, material, not as negativing fraud on the part of the beneficiary, but as showing that the supposed relationship was not the motive for the bequest; and the beneficiary is to be deprived of his legacy, not because he has acted in bad faith, but because he does not satisfy the implied condition upon which it was given.

Thus, in Giles v. Giles (1836) 1 Keen, 685, 48 Eng. Reprint, 471, 5 L. J. Ch. N. S. 46, s. c. sub nom. Penfold v. Giles (1836) 6 L. J. Ch. N. S. 4, it is said that a mere wrong description of a legatee will not defeat a legacy, but if a legacy is given on account of the character involved in the description, and that character has been imposed by a fraud on the testator, the legacy will be bad.

And in Re Boddington (1883) L. R. 22 Ch. Div. (Eng.) 597, it was said that in order that such rule may come into operation two things must exist: First, the false assumption of the character by the legatee; and, secondly, there must be evidence or presumption or inference that that false character was the motive of the testator's bounty.

a

So, also, in Rishton v. Cobb (1839)

5 Myl. & C. 145, 41 Eng. Reprint, 326, 9 Sim. 615, 59 Eng. Reprint, 495, 9 L. J. Ch. N. S. 110, 14 Jur. 261, it is said that the court must be satisfied that the assumed character was the motive of the bounty.

And in Smith v. Diggs (1916) 128 Md. 394, 97 Atl. 712, it is said that the inquiry is always directed to whether the reason for the legacy is traceable alone to the falsely assumed character.

In Re Dries (1903) 69 N. J. Eq. 475, 55 Atl. 814, it is said: "There can be no doubt that if a woman at or before a marriage ceremony represents herself to be competent to marry, or conceals the fact that she was not so qualified, and thereafter her supposed husband makes a will in her favor because he believes her to be his wife, and it turns out that she had, and knew she had, another husband living when she married the testator, such testamentary disposition. will be held void. To avoid a will upon this ground, however, representation or concealment should be fraudulent, and it should appear, not necessarily that they were made to induce the execution of a will, but that they did induce its execution."

The decisions, therefore, appear to warrant the following generalizations:

1. Where the testator is shown to have been aware of the facts, though deceived as to their legal effect, his mistake as to relationship or status is immaterial, and the bequest will take effect, as it will be presumed that relationship was not the motive. See Re Donnely (1885) 68 Iowa, 126, 26 N. W. 23; Re Dries (1903) 69 N. J. Eq. 475, 55 Atl. 814; Taylor v. Higgs (1911) 202 N. Y. 65, 95 N. E. 30; Giles v. Giles (1836) 1 Keen, 685, 46 Eng. Reprint, 474, 5 L. J. Ch. N. S. 46, s. c. sub. nom. Penfold v. Giles (1836) 6 L. J. Ch. N. S. 4; Meluish v. Milton (1876) L. R. 3 Ch. Div.

(Eng.) 27, 45 L. J. Ch. N. S. 836, 35 L. T. N. S. 82, 24 Week. Rep. 892; Re Hammond [1911] 2 Ch. (Eng.) 342, 80 L. J. Ch. N. S. 690, 105 L. T. N. S. 302, 27 Times L. R. 522, 55 Sol. Jo. 649.

2. Testator's ignorance of the facts cannot be inferred, but must be affirmatively shown. See Moore v. Heineke (1898) 119 Ala. 627, 24 So. 374; Wenning v. Teeple (1895) 144 Ind. 189, 41 N. E. 600.

3. Where the beneficiary is shown to have acted in good faith, and the testator has been deceived by his own misapprehension of the situation or by the misrepresentations of a third person, it does not necessarily follow that the bequest is valid; but whether it will take effect or not will depend upon whether the supposed relationship or status was the sole motive for making it. See Howell v. Troutman (1860) 53 N. C. (8 Jones, L.) 304; Kennell v. Abbott (1799) 4 Ves. Jr. 802, 31 Eng. Reprint, 416, 4 Revised Rep. 351, 25 Eng. Rul. Cas. 480 (obiter); Standen v. Standen (1795) 2 Ves. Jr. 589, 30 Eng. Reprint, 791; Re Davenport (1852) 1 Smale & G. 126, 65 Eng. Reprint, 55; Wilkinson v. Joughin (1866) L. R. 2 Eq. (Eng.) 319, 35 L. J. Ch. N. S. 684, 12 Jur. N. S. 330, 14 L. T. N. S. 394; Re Lowe (1892) 61 L. J. Ch. N. S. (Eng. ) 415, 40 Week. Rep. 475; Anderson v. Berkley [1902] 1 Ch. (Eng.) 936, 71 L. J. Ch. N. S. 444, 50 Week. Rep. 684, 86 L. T. N. S. 443, 18 Times L. R. 531.

4. Even though the beneficiary has been guilty of concealment or misrepresentation, the bequest will not fail of effect if it appears that the gift might have been made for some other reason; and it is immaterial whether the deception was for the purpose of influencing the testator. See the reported case (RE CARSON, ante, 239); Smith v. Diggs (1916) 128 Md. 394, 97 Atl. 712, s. c. on subsequent appeal in (1917) 130 Md. 101, 99 Atl. 952; Re Janes (1895) 87 Hun, 57, 33 N. Y. Supp. 968, affirmed without opinion in (1897) 152 N. Y. 647, 46 N. E. 1148; Rishton v. Cobb (1839) 5 Myl. & C. 145, 41 Eng. Reprint, 326, 9 Sim. 615, 59 Eng. Reprint, 495, 9 L. J. Ch. N. S.

110, 4 Jur. 261; Re Petts (1859) 27 Beav. 576, 54 Eng. Reprint, 228, 1 L. T. N. S. 153, 29 L. J. Ch. N. S. 166 s. c. sub nom. Re Pitt, 5 Jur. N. S. 1235, 8 Week. Rep. 157; Turner v. Brittain (1863) 3 New Reports (Eng.) 21.

5. When a bequest is made to a person under a particular character which he has falsely assumed, and which alone can be supposed the motive of the testator's bounty, the law will not permit him to avail himself of it, and therefore he cannot demand his legacy. See the reported case (RE CARSON, ante, 239); Smith v. Diggs (1916) 128 Md. 394, 97 Atl. 712; Re Dries (1903) 69 N. J. Eq. 475, 55 Atl. 814; Baker's Will (1876) 2 Redf. (N. Y.) 179; Tilby v. Tilby (1884) 2 Dem. (N. Y.) 514; Ex parte Wallop (1792) 4 Bro. Ch. 90, 29 Eng. Reprint, 794, 2 Dick. 767, 21 Eng. Reprint, 469; Kennell v. Abbott (1799) 4 Ves. Jr. 802, 31 Eng. Reprint, 416, 4 Revised Rep. 351, 25 Eng. Rul. Cas. 480; Giles v. Giles (1836) 1 Keen, 685, 48 Eng. Reprint, 471, 5 L. J. Ch. N. S. 46, s. c. sub nom. Penfold v. Giles (1836) 6 L. J. Ch. N. S. 4; Wilkinson v. Joughin (1866) L. R. 2 Eq. (Eng.) 319, 35 L. J. Ch. N. S. 684, 12 Jur. N. S. 330, 14 L. T. N. S. 394.

Mistake as to legality of marriage relation.

A bequest will not be held void as having been procured by fraud on the part of the beneficiary, where, although the evidence tends to show that at the time he married the testatrix he had a wife living, there is a total lack of any evidence that at the time she executed the will, she was deceived as to the past life of her husband, and hence that the execution of the will was induced by any deception or fraud. However strong the probability that a woman would not marry a man with knowledge of such facts as are shown, or, having married him in ignorance of such facts, would not, after becoming informed of them, give all her property to him by will, the law will not presume that she had no such knowledge from the mere fact that she did marry him, and did devise all her property to him. Moore

v. Heineke (1898) 119 Ala. 627, 24 So. 374.

The fact that the alleged wife of the testator, to whom he left his property, was married to another man and had not been divorced from him at the time of her marriage to the testator, is not of itself sufficient to avoid the will. Wenning v. Teeple (1895) 144 Ind. 189, 41 N. E. 600.

A bequest by a woman to a man to whom she had been married is not rendered invalid by the fact that he had a wife living from whom he had never been divorced, where at the time she made the bequest the testatrix had full knowledge of all the facts affecting the character of her relations with the devisee, although she may have been mistaken as to their legal effect, and have believed that her husband was competent to enter into a valid marriage contract. Re Donnely (1885) 68 Iowa 126, 26 N. W. 23.

A bequest is not invalid as having been made in the belief that the beneficiary was the testator's legal wife, where it appears that she herself believed that she was free to marry and had disclosed to the testator the facts upon which such belief was based. Re Dries (1903) 69 N. J. Eq. 475, 55 Atl. 814.

A bequest to a wife is not vitiated by the fact that her divorce from a former husband was invalid, where it appeared that the testator was aware of the defect in the divorce proceedings. Taylor v. Higgs (1911) 202 N. Y. 65, 95 N. E. 30.

In Baker's Will (1876) 2 Redf. (N. Y.) 179, a testamentary provision by a woman for her husband, made within a few months after a secret marriage, was held to have been vitiated by fraud, where it appeared that her scruples against marrying the beneficiary, occasioned by a doubt as to the validity of his divorce from a former wife, had been overcome by an opinion of counsel that, assuming the correctness of the facts submitted to them by the husband, such divorce was valid, where it appeared that there were facts known to the husband ren

dering such decree either void or voidable.

In Tilby v. Tilby (1884) 2 Dem. (N. Y.) 514, a will by which testator left all his property to his wife was held invalid on the ground that the wife, being fully apprised of her incapacity to contract a valid marriage, had wilfully and fraudulently kept the testator in ignorance of it.

In Kennell v. Abbott (1799) 4 Ves. Jr. 802, 31 Eng. Reprint, 416, 4 Revised Rep. 351, 28 Eng. Rul. Cas. 480, a legacy to the supposed husband of the testatrix was held invalid where it appeared that he concealed from her the fact that he had a wife living.

In Giles v. Giles (1836) 1 Keen, 685, 48 Eng. Reprint, 471, S. C. sub nom. Penfold v. Giles, 6 L. J. Ch. N. S. 4, it was held that the legatee's right to a provision made for her by testator, who designated her as his wife, was not defeated by the fact that she had another husband living, where it did not appear that she had a guilty knowledge which the testator did not share, the court saying: “In the present case the testator, as well as Mrs. Penfold, had both an actual knowledge of the existence of John Penfold in the year 1815; and it was not more the duty of Mrs. Penfold than it was the duty of Thomas Giles, the testator, to ascertain that John Penfold was dead before they ventured to proceed to the ceremony of a marriage between themselves. There is no more reason why I should impute to the plaintiff a fraud upon the testator than to the testator a fraud upon the plaintiff; which of them was guilty, if either of them, must depend upon circumstances which are not before the court. If both had a guilty knowledge, no fraud was committed upon the testator; and however immoral the conduct of the parties, it is no part of the duty of courts of equity to punish parties for immoral conduct by depriving them of their civil rights."

In Re Davenport (1852) 1 Smale & G. 126, 65 Eng. Reprint, 55, where testator gave a sum of money in trust for his nephew for life, and from and immediately after his decease, in case

the nephew's wife should survive him, to her for life, and afterward in trust to pay the capital among his nephew's children, it was held that a woman with whom the nephew had cohabited for many years, and who was supposed by the testator to be his nephew's wife, although she was not such in fact, was not entitled to the income of the trust fund, there being nothing to indicate that she was personally known to the testator, or known to him in such a way as to lead to the inference that she was intended by the reference to the nephew's wife, or to justify the court in arriving at the conclusion that no other person but her was in the testator's mind when he framed the gift. The vice chancellor said: "Suppose, for example, the nephew had survived the testator, and married, and afterwards died; there would, in that case, be in existence a person exactly answering in every respect the legatee described in the will, namely, the nephew's wife. Could there be a doubt that, under these circumstances, that wife would be entitled to the legacy? Yet, according to the construction I am invited to put upon this will, I should be bound to declare that the wife of G. C. Davenport did not answer the description contained in the will, but that this poor lady, who, it is conceded, was not the wife of the testator's nephew, is, nevertheless, accurately described as his wife. Much as I regret the result, I am bound to declare that she is not entitled under these words to the testator's bounty."

In Re Petts (1859) 27 Beav. 576, 54 Eng. Reprint, 228, 1 L. T. N. S. 153, 29 L. J. Ch. N. S. 168, s. c. sub nom. Re Pitt (1859) 5 Jur. N. S. 1235, 8 Week. Rep. 157, where testator made certain provisions for his "wife," not mentioning her by name, and it appeared that the woman to whom testator was married was not lawfully his wife, she having a husband living whom she had left nineteen years before, and whom she believed to be Idead, it was held that the testator intended to benefit her, and that she had not done anything to forfeit the provision by going through the ceremony

of marriage with the testator after so great a lapse of time, although the inquiries made by her as to whether her former husband was still living were not very carefully prosecuted.

In Turner v. Brittain (1863) 3 New Reports (Eng.) 21, where a testator bequeathed the income of a certain sum to his son for life, and after his decease "unto Harriet, the present wife of" said son, should she survive him, during her life, it was held that Harriet, with whom the son had lived as his wife, might claim the benefit of such provision, there being no evidence that the false representation made by the son and herself to the testator, that they were married, had been made for the purpose of obtaining the legacy.

In Wilkinson v. Joughin (1866) L. R. 2 Eq. (Eng.) 319, 35 L. J. Ch. N. S. 684, 12 Jur. N. S. 330, 14 L. T. N. S. 394, where testator, who had married a woman representing herself as a widow, but having, to her knowledge, a husband living, made a provision for her under the designation of "my wife Adelaide," it was held that, as she had imposed upon the testator, the bequest was wholly void.

In Meluish v. Milton (1876) L. R. 3 Ch. Div. (Eng.) 27, 45 L. J. Ch. N. S. 836, 35 L. T. N. S. 82, 24 Week. Rep. 892, it was held by the vice chancellor that it could not be considered that the character of lawful wife was the only motive for the gift of testator's entire estate to his wife, where it appeared that at the time of the marriage the testator was aware that there was no certain evidence of the death of a former husband.

In Re Lowe (1892) 61 L. J. Ch. N. S. (Eng.) 415, 40 Week. Rep. 475, testator, believing his brother to be legally married to the woman with whom he was living as his wife, left property in trust to pay the income to the brother for life, and after his death to "the present wife of my said brother Joseph, if she shall become his widow," during her life. It was held that the wife was entitled to the provision, the phrase, "if she shall become his widow," being held equivalent to, "if she shall survive him."