Melville Fuller

“ It was not shown who did write her name to the will. It was not written by either of the witnesses, nor in their presence. Testatrix could not read, and the will was not read to her in the presence of, or to the knowledge of, the witnesses. The trial court instructed the jury, in effect, that notwithstanding the will was executed in accordance with the formalities prescribed by the statute, yet, it being shown that the testatrix could not read, the will was invalid, unless it was proved that it was read to her and that she was informed as to its contents. ”

“ But, if the matter in issue be not the mental capacity of the deceased, then such unsworn declarations, as indicative of the state of his affections, are no more admissible than would be his unsworn declarations as to any other fact.
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'When such an issue [one of mental capacity] is made, it is one which relates to a state of mind which was involuntary, and over which the deceased had not the control of the sane individual, and his declarations are admitted, not as any evidence of their truth, but only because he made them ”

“ Appellants' brief asserts that the offer was made in support of the issue of want of mental capacity in the testatrix at the time she made her will.
In Den ex dem. Stevens v. Vancleve, 4 Wash. C. C. 262, 265, Fed. Cas. No. 13,412, Mr. Justice Washington said that declarations of a deceased, prior or subsequent to the execution of a will, were nothing more than hearsay, and that there was nothing more dangerous than their admission, either to control the construction of the instrument or to support or destroy its validity. ”

“ Albert R. Humphrey, another witness, testified that he had a conversation with Mrs. Lipphard about two years before she died. He was asked the following questions:
'Did she tell you how she had left her property, or how she was going to leave it? A. Yes, sir. ”