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general law in favor of this gratuity granted any constitutional question affecting their to this corporation. It is a well-settled rule rights, until they are in court, and the issueof construction of grants by the legislature is directly or necessarily involved. People to corporations, whether public or private, v. Brooklyn, F. & C. I. R. Co. 89 N. Y. loc. that only such powers and rights can be ex- cit. 92. ercised under them as are clearly compre- Finally we come to consider whether the hended within the words of the act, or de- grant of the fines, penalties, and forfeitures rived therefrom by necessary implication; accruing to Pike county was such that it regard being had to the object of the grant. became, upon its passage, irrepealable. Said Any ambiguity or doubt arising out of the Chief Justice Marshall in the Dartmouth terms used by the legislature must be re- College Case: ". . . If the funds of the solved in favor of the public. Fanning v. college be public property, or if the state of Gregoire, 16 How. 534, 14 L. ed. 1047; Min- New Hampshire, as a government, be aloneturn v. Larue, 23 How. 435, 16 L. ed. 574; interested in its transactions, the subject is Carroll v. Campbell, 108 Mo. 550. Mr. Jus- one in which the legislature of the state may tice Swayne declared in Northwestern Fer- act according to its own judgment, unretilizing Co. v. Hyde Park, 97 U. S. 659, 24 strained by any limitation of its power imL. ed. 1036, and in Newton v. Mahoning posed by the Constitution of the United County Comrs. 100 U. S. 548, 25 L. ed. 710. States." The same principle was repeated in "Nothing is to be taken as conceded. East Hartford v. Hartford Bridge Co. 10 The affirmative must be shown. Silence is How. 511, 13 L. ed. 518; Butler v. Pennsylnegation, and doubt is fatal to the claim."vania, 10 How. 402, 13 L. ed. 472. In NewTo construe this act as sought by plaintiff ton v. Mahoning County Comrs. 100 U. S. would be to deprive Pike county forever of loc. cit. 559, 25 L. ed. 711, the Supreme the funds granted to it by the Constitution Court of the United States discussed the act of the state for the support of its public of Ohio providing for the removal of the schools (Mo. Const. art. 11, § 8); to deprive courthouse of Mahoning county from Canthat county of a privilege granted to every field to Youngstown. By the act of 1846, county in the state. The act of March 12, upon certain conditions, complied with by 1859, expressly repealed so much of the char- the people of Canfield, the courthouse waster of Watson Seminary as granted the "permanently established" at said place. In "fines, forfeitures, and penalties" accruing 1874 the legislature passed the act of remov to Pike county to said seminary, and, in view al, and it was resisted as impairing the ob of the reserved right to so amend said char- ligation of a contract; but the court held the ter in the Revised Statutes of 1845, we have first act was not a contract, and was not irno doubt of the constitutionality of this act repealable, because the provisions for holding of 1859. To the contention of counsel that courts were public things, and laws concernbecause the revision of 1855 did not, in ing them must be of the same character. words, continue the general law of 1845, Said the court: "They involve public inthough the same provision is found therein terests, and legislative acts concerning (Rev. Stat. 1855, p. 371, chap. 34, art. 1, § them are necessarily public laws. Every 7), it is only necessary to say that the subse- succeeding legislature possesses the same juquent repeal, if conceded, did not affect the risdiction and power with respect to them as right to amend, which, to all intents and its predecessors. The latter have the same purposes, was incorporated in the charter at power of repeal and modification which thethe time of enactment. Freehold Met. L. former had of enactment, neither more nor Asso. v. Brown, 29 N. J. Eq. 122; United He- less." Now, "fines, forfeitures, and penalbrew Benev. Asso. v. Benshimol, 130 Mass. ties" accrue to the state from the violation 325; Boston Beer Co. v. Massachusetts, 97 of some obligation to the state, or as the reU. S. 25, 24 L. ed. 989. But regardless of sult of criminal prosecutions for offenses the reserved right of the legislature to amend against the state. Each legislature may re the charter as it did by the act of 1859, in peal the laws creating these, and enact new view of the fact that there are no incorpora- laws, imposing other and different ones. The tors of Watson Seminary outside of the state whole subject is a matter absolutely in the itself, its sole benefactor, we think it is per-power of each succeeding legislature, acting fectly clear that this corporate body has no in its relation to public objects. No person standing to complain of the action of the or institution can have a vested right therestate in the amending or repealing act. in. Hence, when the legislature granted the The persons who gave the land, and contributed money to build the schoolhouse, are not before this court, and are not represented. They had no voice in creating the board of directors. They were no parties to any contract, if one ever existed, between the state and its own appointees, not one of whom has the slightest pecuniary interest in the school. Hagar v. Reclamation Dist. No. 108, 111 U. S. 701, 28 L. ed. 569. We are not called upon to decide or determine the rights of persons who contributed to the school property. It is not our duty to decide

fines, forfeitures, and penalties then in the county treasury, in 1847, it did so subject to the right of the next legislature to repeal the act of 1847. In the very nature of the subject-matters granted, and the public purpose to which they were devoted, there was not, and could not be, an absolute and unchangeable contract. which future legislatures might not modify or repeal: but it was a gratuity or privilege, without any consideration moving to the state, which could be revoked at any time, as was expressly done in 1859. State v. Gilmore, 141 Mo. 506; New

ton v. Mahoning County Comrs. 100 U. S. 561, 25 L. ed. 712; Christ Church v. Philadelphia County, 24 How. 300, 16 L. ed. 602; State v. Julow, 129 Mo. 177, 29 L. R. A. 257. Upon a full consideration of all the facts, we are satisfied that there was no contract, because there were no parties to the act creating and endowing the school, but the state itself, and no consideration moved to the state for the grant of the funds, and that the state had the reserved power, under the general law of 1845, to amend, alter, or repeal

the act, without infringing any constitutional right; and, without reference to this right, the matter being one of public concern, in which the state alone was interested, -the legislature had a perfect right to act in regard to it according to its own judg. ment, and was in no way restrained by theConstitution of the United States. The judgment is affirmed.

Sherwood and Burgess, JJ., concur.

IOWA SUPREME COURT.

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APPEAL by plaintiff from a judgment of the District Court for Pottawattamie County in favor of defendant in an action brought to recover damages for the alleged publication of a libel. Affirmed.

Defendant published in its newspaper an aritcle entitled "Hunting a Dead Man," in which the charge was made that the United States authorities attempted to make the arrest of George Bradt for counterfeiting. In that article it was stated that Bradt was mixed up in many criminal transactions, implicated in several burglaries, was known to be the leader of a gang of counterfeiters, and was recognized as a desperate character. The article then describes the efforts of the officers to arrest Bradt, and stated that their efforts were rewarded only by their being handed a telegram stating that he was dead. For the publication of this libel, plaintiff instituted this action.

Further facts appear in the opinion. Mr. J. B. Sweet, for appellant: The definition in § 5086 of the Code, while found in the criminal chapter, nevertheless defines a libel as the basis of a civil action for damages.

Stewart v. Pierce, 93 Iowa, 136.

The publication of the article brought scandal to the plaintiff, and on account of its publication and the defamation of the memory of her son she suffered great humiliation, shame, and mental anguish, and this suffering constituted her damages.

Halley v. Gregg, 74 Iowa, 563; Call v. Larabee, 60 Iowa, 212.

Messrs. Frank H. Gaines and Mayne & Hazelton for appellee.

Deemer, J., delivered the opinion of the

court:

The only question presented by this appeal is this: May a mother recover dam

NOTE. For attempt by injunction to protect the memory of a deceased relative, see Schuyler v. Curtis (N. Y.) 31 L. R. A. 286.

ages for a libel published of and concerning an adult son, published after his decease? The damages sought to be recovered in this action are for humiliation, shame, and mental anguish of the mother caused by an alleged libelous publication concerning her deceased son, George Bradt. The publication, which is set forth in the petition, is undoubtedly libelous per se. But the pivotal question is,

May, plaintiff recover damages therefor? Section 5086 of the Code makes it a crime to maliciously blacken or vilify the memory of one who is dead by a libelous publication tending to scandalize or provoke his surviving relatives or friends; and there is no doubt that for the publication set out in plaintiff's petition defendant was subject to a criminal prosecution, provided the article was published without sufficient justification. But is it liable civilly to the mother of the deceased? She does not sue in a representative capacity, and, if she had, she could not recover, for it is manifest no injury was done to the estate of her deceased son. It seems that contemptuous demeanor towards a corpse was, by the Roman law, an insult to the heir of the deceased, and that action could lie therefor. Dig. 47, 10, 11. The rule that an heir may recover for a libel of one deceased does not seem to have gained a foothold in this country, and we know of no principle that will sustain such an action. There was nothing in the article which tended in any manner to reflect on the plaintiff, and her sufferings were of the samekind as that produced by publication upon any of the other relatives or close friends of deceased. To permit a recovery in this case would allow the mother of any person libeled. to bring suit in her own name for the consequential damages done to her feelings, and the death of the person libeled would be a wholly irrelevant matter; for the suffering is in kind the same whether the person libeled be living or dead. We have not been cited to an authority, and, after a diligent search, we have been unable to find one, which authorizes a recovery in such a case.. On the other hand, the following cases hold such action will not lie: Sorensen v. Bala

ban, 11 App. Div. 164; Wellman v. Sun Printing & Pub. Asso. 66 Hun, 331.

The trial court correctly sustained the de murrer, and its judgment is affirmed.

ILLINOIS SUPREME COURT.

Re Probate of Will of Thomas J. THOMP-| these facts may be presumed from the attesSON, Deceased. tation clause if it shows a compliance with the statute.

1.

2.

3.

Mary Ann THOMPSON, Appt.,

v.

Letitia J. OWEN, et al.

(174 Ill. 229.)

That the attesting witnesses to a will are unable to remember the

facts stated in the attestation clause will not prevent the admission of the will to

A

probate if the signatures of testator and the witnesses are proved, and no evidence appears tending to disprove the recitals in the attestation clause of compliance with the statutory requirements, where the statute permits the party seeking to probate a will to support the same by any evidence competent to establish a will in chancery. Affidavits of attesting witnesses to a will prepared for use upon the first application for probate are, although the proceeding is dismissed without result, admissible, together with the testimony of the subscribers, as to facts and circumstances which attended the signing in a subsequent proceeding to probate the will.

The rule that the party who produces a witness cannot impeach or discredit him does not apply with full effect in case of a witness produced as required by law to prove a will.

(June 18, 1898.)

PPEAL by proponent from a decree of the Circuit Court for Hancock County affirming an order of the County Court refusing to admit to probate the will of Thomas J. Thompson, deceased. Reversed.

The facts are stated in the opinion.
Messrs. John B. Risse & Son, for appel-

lant:

A will may be established by one, only, of the attesting witnesses if that witness can testify to a compliance with the statute relating to its execution.

Re Page, 118 Ill. 576, 59 Am. Rep. 395; Canatsey v. Canatsey, 130 Ill. 397.

The pre

It is not necessary that all of the witnesses should be able to testify to all the statutory requirements being complied with. sumption in favor of due execution of the will when it appears on its face to possess all the legal requisites is such that it will prevail over the testimony of all the witnesses to the contrary, where so far corroborated by circumstances, or other testimony, that the court is satisfied such was the fact.

Jauncey v. Thorne, 2 Barb. Ch. 40, 45 Am. Dec. 424.

Where witnesses fail to recollect what took place at the time of the execution of the will

NOTE. For proof of signature by mark when attesting witnesses thereto are dead or cannot remember the transaction, see note to Wienecke v. Arbin (Md.) 44 L. R. A. 142.

Cheney v. Arnold, 18 Barb. 434; Chaffee v. Baptist Missionary Convention, 10 Paige, 89, 40 Am. Dec. 225; Barnes v. Barnes, 66 Me. 286; Jauncey v. Thorne, 2 Barb. Ch. 40, 45 Am. Dec. 424.

A perfect attestation clause, showing that all of the statutory formalities have been complied with, is presumptive evidence of the valid execution of a will, and, in absence of proof to the contrary, is conclusive.

Barnes v. Barnes, 66 Me. 286; 1 Redf. Wills, 3d ed. * 237, 238; Lawrence v. Norton, 45 Barb. 448; Nelson v. McGiffert, 3 Barb. Ch. 158, 49 Am. Dec. 170; Jauncey v. Thorne, 2 Barb. Ch. 40, 45 Am. Dec. 424; Theological Seminary v. Calhoun, 25 N. Y. 422; Peck v. Cary, 27 N. Y. 10, 84 Am. Dec. 220; Ela v. Edwards, 16 Gray, 91; Eliot v. Eliot, 10 Allen, 357; Re Johnson, 7 Misc. 220; Re Nelson, 43 N. Y. S. R. 30; Re Pepoon, 91 N. Y. 256; Re Kellum, 52 N. Y. 517; Cheeney v. Arnold, 18 Barb. 434; Allaire v. Allaire, 37 N. J. L. 312; 3 Washb. Real Prop. 3d ed. *682; Tilden v. Tilden, 13 Gray, 103; Nickerson v. Buck, 12 Cush. 332; Orser v. Orser, 24 N. Y. 51.

The probate of a will does not depend upon the recollection or veracity of a subscribing witness.

Checney v. Arnold, 18 Barb. 434; 1 Redf. Wills, *218; Lawyer v. Smith, 8 Mich. 411, 77 Am. Dec. 460; Jauncey v. Thorne, 2 Barb. Ch. 40, 45 Am. Dec. 424; Rogers v. Diamond, 13 Ark. 474; Hall v. Hall, 18 Ga. 40.

Messrs. O'Harra, Scofield, & Hartzell, for appellees:

(3) two wit

To entitle a will to be admitted to probate, four things must concur: (1) The will must be in writing, and signed by the testator, or in his presence by someone under his direction; (2) it must be attested by two or more credible witnesses; nesses must prove that they saw the testator sign the will in their presence, or that he acknowledged the same to be his act and deed; (4) they must swear that they believe the testator to be of sound mind and memory at the time of signing or acknowledging the same.

Dickie v. Carter, 42 Ill. 376; Crowley v. Crowley, 80 Ill. 469; Canatsey v. Canatsey, 130 Ill. 397.

The statute has prescribed the rule, and its requirements must be obeyed. Doran v. Mullen, 78 Ill. 344.

Boggs, J., delivered the opinion of the court:

The appellant filed in the county court of Hancock county an instrument in writing purporting to be the last will and testament of Thomas J. Thompson, deceased, and also filed her petition praying that the said instrument might be admitted to probate. A hearing was had, and the county court refused to

admit the instrument to probate as the will of the said deceased. The appellant appealed from this order of the county court to the circuit court of said county, and in the said circuit court the cause was, by agreement of the parties, submitted to the court without the intervention of a jury. The circuit court entered an order refusing and disallowing the petition of the appellant that said instrument be admitted to probate, and the appellant has brought the cause to this court by a further appeal from the said order and judgment of the circuit court.

The alleged will purported to bequeath and devise all the real and personal property of the said deceased, and upon its face appeared to have been duly executed, with all the formalities provided for by statute, and appended thereto was an attestation clause containing full recitals to that effect. The attestation clause was as follows:

pared and written by him. It was also proved that the deceased delivered the instrument purporting to be his last will and testament to one George Nash, a banker residing and doing business in Bowen, and requested him to preserve and safely keep the same, and that said Nash produced the instrument after the death of said Thompson. The court rejected from consideration the recitals of the attestation clause as being incompetent. The will bore the genuine signature of the alleged testator; the attesting clause recited full compliance with all the requirements of the statute with relation to the execution of the will, and bore the genuine signatures of the attesting witnesses; no evidence appeared tending to disprove the observance of any requirement of the statute; circumstances were proved corroborative of due execution; the attesting witnesses were produced, identified their signatures to the attesting clause, and gave no testimony tending to contradict anything recited in said clause, and in such state of

The within instrument, consisting of two (2) sheets, or four (4) pages was now here subscribed by Thomas J. Thompson, the tes-circumstances we think the attesting clause tator, in the presence of each of us, and at the same time declared by him to be his last will and testament; and we, at his request and in his presence, and in the presence of each other, sign our names hereto as attesting witnesses, this 6th day of January, 1893. Arch E. McNeall.

S. M. Irwin.

The attesting witnesses were produced, and each for himself testified that the signature appended to the attestation clause, purporting to be his signature, was his true and genuine signature; each of them, however, testifying he had no recollection of signing the said attestation clause, or of seeing the deceased sign the will, or that the deceased ever acknowledged the same to be his act or deed.

was competent to be received in evidence, and to be considered in connection with the testimony of the two attesting witnesses on the question of the execution of the will by the said deceased. Such, of course, is not the rule when a will is presented to the county court for probate, and the attesting witnesses are present in that court, and under no disability; for the reason that it is expressly provided, in order to authorize a county court to admit a will to probate, the execution of the will shall be proved by two or more credible witnesses, declaring, on oath or affirmation, they were present, and saw the testator sign the said will in their presence, or that the testator acknowledged to them that the instrument purporting to be his last will was his act and deed. Rev. Stat. chap. 148, § 2, entitled "Wills." But it is also expressly provided by § 13 of the same chapter that if the probate of any will shall have been refused by any county court, and an appeal shall have been taken from such order of the county court to the circuit court, it shall be lawful for the party seeking probate of such will to support the same, on the hearing in the circuit court, by any evidence competent to establish a will in chancery.

It was proved by the testimony of two witnesses, and not denied or questioned, that the signature to the will was the true and genuine signature of the deceased, Thomas J. Thompson. The body of the will and the attestation clause were both in the handwriting of David E. Mack, judge of the county court of said Hancock county. It appeared from the testimony of Judge Mack that the deceased, who resided at Bowen, in said county of Hancock, about two years before There is abundant authority for the view his death came to the office of the witness we have expressed that an attestation clause in Carthage, in said county, and requested and which the attesting witnesses to a will swear directed him to prepare the will in accordance bears their signatures is competent evidence with his wishes which he then fully made tending to establish the due execution of the known to the witness. The witness testified will in chancery, when the only defect in the he advised the deceased as to the require- proof of the execution is that the subscribing ments of the statute with relation to the ex- witnesses are unable to recollect that all the ecution of wills, and gave him full and ex- formalities prescribed by the statute and replicit directions as to the mode and manner cited in the attesting clause were actually in which the instrument should be signed, complied with. In 1 Jarman, Wills, 6th ed. executed, and witnessed; that he afterwards, 123, 124, note, it is said that "failure of on the same day, wrote the instrument (in-memory on the part of the witnesses will not cluding the attestation clause) offered as the upset the will, where the attestation clause will, and sent it by mail to the said deceased, is sufficient," citing many cases. Also, in at Bowen. This witness identified the in- 1 Redf. Wills, 4th ed. p. 238, it is said: "It strument offered as being the one so pre- seems to be well settled, that, in the absence

no means such as to disprove the statements in the attestation clause."

In New York (Re Kellum, 52 N. Y. 517) it was said: "If the attestation clause is full and the signatures genuine, and the circumstances corroborative of due execution, and no evidence disproving a compliance in

of all proof, the witnesses being deceased, or not in a condition to give testimony, the presumption omnia rite acta will arise, as in ordinary cases. And where the attestation clause contains all the particulars of a good execution, it will always be prima facie evidence of due execution, and will often prevail over the testimony of the wit-any particular, the presumption may be lawnesses, who give evidence tending to show that some of the requisites were omitted." The text is supported by many authorities cited, and it is further said in note 26, on page 238, that "the mere forgetfulness of the witnesses of the facts certified in the attestation clause is not regarded as any obstruction to granting probate of the will." To the same effect, see Schouler, Wills, §§ 347, 348.

fully indulged that all the provisions of the statute were complied with, although the witnesses are unable to recollect the execution or what took place at the time. In proportion to the absence of memory should care and vigilance be exercised in examining the facts to prevent fraud and imposition; but, if the circumstances of good faith and intelligence of the witnesses satisfy the judgment that the statute has been complied In Abbott v. Abbott, 41 Mich. 540, where with, there is no rule of law to prevent adone of the attesting witnesses failed to re- mitting the will to probate; and this accords member, and could not therefore testify, that with the authorities in this state. Lewis v. all the formal requisites required by the Lewis, 11 N. Y. 220; Orser v. Orser, 24 N. Y. statute to be observed had been complied 51; Peck v. Cary, 27 N. Y. 9, 84 Am. Dec. with, the late Chief Justice Campbell said: 220; Theological Seminary v. Calhoun, 25 "But we know of no rule of law which makes N. Y. 422; Chaffee v. Baptist Missionary Conthe probate of a will depend upon the recol-vention, 10 Paige, 85, 40 Am. Dec. 225." lection, or even the veracity, of a subscrib- In Jauncey v. Thorne, 2 Barb. Ch. 40, 45 ing witness. The law, for wise and obvious reasons, requires such instruments to be executed and attested with such precautions as will usually guard against fraud. But, if the forgetfulness or falsehood of a subscribing witness can invalidate a will, it would be easy, in many cases, to use such artifices or corruption as would render the best will nugatory. Their evidence is not conclusive either way, nor does the law presume that they are more or less truthful than others. It presumes they had, when they signed, full knowledge of what they were doing, and, in case they are dead, their attestation, when proved, is prima facie evi

dence that all was done as it should be."

In New Jersey (McCurdy v. Neall, 42 N. J. Eq. 333,) it was said: "The attestation clause is perfect, and the execution to which the witnesses thus certify and attest is an exact compliance with the statute. Under such circumstances, the court must have clear proof to warrant the conclusion that the will was not duly executed. Wright v. Rogers, L. R. 1 Prob. & Div. 678. In Allaire v. Allaire, 37 N. J. L. 312, it is laid down that, if the attestation clause is perfect, and shows on its face that all the forms required by the statute have been complied with, and the subscribing witnesses, when called, admit their signatures, but through defect of memory, or for any other reason, fail to testify to the due execution of the will, it may be established on the presumption arising from the form of the attesting clause, unless there be affirmative evidence given to disprove its statements.' In Tappen v. Davidson, 27 N. J. Eq. 459, it was held that if, in such case, it be merely doubtful, from the evidence, whether the statutory requisites have been complied with, the presumption arising from the attestation clause is not overcome. In this case the evidence is by

Am. Dec. 424, Chancellor Walworth said: "It is a very different question, however, whether, to sustain and establish the validity

of a will, the courts should hold it to be necessary for the subscribing witnesses to recollect and testify to the fact that all the formalities prescribed in the statute were actually complied with. For, if this were required, very few devises of property would witnesses was taken and perpetuated very be supported unless the testimony of the soon after the wills attested by them were made. This, in many cases, would be wholly impracticable, as the testator frequently will. And where there is good reason to suplives many years after he has executed his Pose that the will has been duly executed, and that no fraud or want of testamentary capacity existed at the time it was made, justice to the dead as well as to the living, requires that the declared wishes of the testator should not be defeated by the imperfect recollections of the attesting witnesses; or by reason of their deaths or removal beyond the jurisdiction of the state. It is for this reason that the most liberal presumptions in favor of the due execution of wills are sanctioned by courts of justice, when, from lapse of time or otherwise, it may be impossible to give positive eyidence on the subject." See also Peck v. Cary, 27 N. Y. 9, 84 Am. Dec. 220, and Re Cottrell, 95 N. Y. 330. In the Peck Case Chief Justice Denio said: "A the witnesses always to remember and be able different rule, and one which would require to state affirmatively the several matters required to be done, would render wills the most uncertain of all legal instruments."

In Wisconsin, see Meurer's Will, 44 Wis. 392, 28 Am. Rep. 591; Re Lewis, 51 Wis. 101, and O'Hagan's Will, 73 Wis. 78. In the latter case, as in the case at bar, both of the attesting witnesses testified that they had no. recollection whatever of signing the instrument, and could testify only to the genuine

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