#### J. H. JENKINS, Adm’r., v. J. W. HALL and wife.

Where the propounders of a paper-writing, alleged to be a last will and testament, lived in the same house with the alleged testatrix, it was Held not to be competent for the caveators to give, in evidence, declarations of the propounders, calculated to influence the testatrix in the disposition of her property, without, at the same time, sho'wing that such declarations were made in the presence of the alleged testatrix, or communicated to her.

Tnis was an issue of devismit vel non, tried before Bailey, J., at Spring Term, 1859, of Rowan Superior Court.

The following statement, in the nature of a bill of exceptions, was drawn up by the counsel in the case, and certified to this Court by his Honor.

A paper-writing, purporting to be the will of Elizabeth Cowan, deceased, was produced by J. IT. Jenkins, the propounder thereof, the executor named in the said paper-writing. The caveators, J. W. Hall and wife, Mary, admitted the execution of the will, with all the solemnities required by law, and also the testamentary capacity of the said Elizabeth Cowan, but insisted that the said paper-writing- was not the will of the said Elizabeth, because the making of the same was dictated to her, or procured from her by undue influence and false and fraudulent representations made by the *296said J. H. Jenkins and Charlotte, his wife, and others, by-means of which, she was controlled in the disposition of her property, and induced to make, by the paper-writing, propounded, dispositions contrary to her affections, and which, but for such undue influence, she would not have made. In support of these allegations, the caveators offered evidence of the following facts :

The alleged testatrix had been the wife of Thos. L. Cowan, of Salisbury, by whom she became the mother of two children, Charlotte, the wife of the propounder, Jenkins, and Mary, one of the caveators, who intermarried with Joseph ~W. Hall, the other caveator, on the 1st of December, 1853. Charlotte had been the wife of Jenkins for a number of years before, and had several children. Mary has never had any children. Thos. L. Cowan and wife, Elizabeth, lived in the same house with their two daughters and their husbands, and the children forming one family, meeting at the same table, and occupying common parlors. The caveator, Mary, was the favorite daughter of Mrs. Cowan, to whom she was most tenderly attached, and who returned her attachment with the most devoted affection.

On the 25th of February, 1856, Thomas L. Cowan died, leaving a will, of which, he appointed Jenkins and Hall the executors, both of whom qualified and undertook its execution. The meaning of this will, being somewhat obscure, the counsel of the executors prepared a case, for the opinion of Supreme Court, but for some reason, nothing effectual was done during the life of Mrs. Cowan. Soon after this, Mrs. Cowan began to manifest dislike of Hall; she also treated her daughter, Mary, with coolness and distance. After the death of Mr. Cowan, the parties continued to reside in the same house as before. Just before the time, limited by law, Mrs. Cowan dissented from her husband’s will, and thereby acquired a personal estate of more than sixty thousand dollars in value. She died on the 31st of December, 1851, in the Ifith year of her age, and her mind was below the average of in*297tellect; she was uneducated, credulous, and of yielding disposition.

The caveators then proposed to give in evidence declarations of the propounder, Jenkins, made to different connections of the family at various times, between Mr. and Mrs. Cowan’s death, and before the making of the propounded paper, in disparagement of the character of Hall. The counsel were asked by the Court, if they expected to prove that such declarations were made in the presence of Mrs. Cowan, or were communicated to her; to which the counsel replied, they did not, except the fact of their living together, in the same house, from which the jury might infer that such declarations'came to the knowledge of Mrs. Cowan.

This evidence was objected to by the propounders, and rejected by the Court, to which ruling the caveators excepted. The caveators further offered to give in evidence, declarations made by Mrs. Jenkins, the wife of the propounder, to different persons, who were connections of the family, after Mr. Cowan’s death, and before the making of the propounded paper, in disparagement of the character of Hall; whereupon, the same question was asked by the Court, and the same answer made by the counsel for the caveators, as above stated. The propounders objected to the evidence, and it was rejected by the Court, and to this ruling the caveators again excepted.

Yerdict for the propounders. Judgment. Appeal by the caveators.

McLean, Bowie and Wilson, for tire propounders.

Badger, Boyden and Osborne, for the caveators.

Manly, J.

The evidence offered and rejected, which is the basis of the exceptions, could only be pertinent to the issue, on the supposition that the disparaging declarations were communicated to the testatrix, or upon the supposition that the making of such, under the circumstances, justify the inference that similar ones were made by the parties, to the testatrix. The point, upon which the admissibility hung, was the probable influence on the mind of the testatrix.

*298Upon the first supposition, they are clearly inadmissible, for the reason that the connexions of the family, to whom they were-made, might have been called to establish, positively, what the party wished to be left to inference ; and as they were not called, the legal presumption is, they would not prove the alleged communications.

Upon the second supposition, the declarations seem to be alike inadmissible, for want of connection between the premises and conclusion. The propounder and wife and the testatrix lived together as one family. To connexions, outside of the family, the former made disparaging declarations, and, therefore, they made them to -testatrix. The inference is not natural or reasonable, but is, at best, only conjectural. It is no evidence of the making of a declaration to a proposed person, to shew that it was made to another, though equally con-convenient. The repetition of it, frequently to others, raises a chance that it may have been said to the person in question, but yet, it rests on.a calculation of chances merely, and is but a remote possibility. Under the special circumstances of our case, the evidential declarations could justify nothing higher, by way of inference, than a conjecture or suspicion; and these, according to well established principles, are entitled to no weight.

In connection with this view, we will call attention to what was said by the Court, in the case of the /State v. Henry, 5 Jones’ Rep. 70. The case did not go off upon that point, but it was yet held to be clear law, that a remarkable occurrence, which took place in the presence of his fellow-servants on the plantation, could not be evidence in the prisoner’s favor for any purpose, beeause there was no evidence that it had been communicated to him. An inference, however, to that effect, would have been quite as probable in that case as in this.

Only direct proof, touching the issues in a cause, or proof of such circumstances, or collateral facts, as will justify a reasonable inference, bearing upon the issues, is admissible. To allow a wider latitude, in the selection of matter for proof, would .place courts and juries under influences foreign to, the special *299merits of a case, and bring about results in the trial of our cases, based upon irrelevant considerations, and unjust in respect to the particular controversy on hand.

The purport of the declarations offered, is not set forth,, further than to state, in general terms, that they were “ disparaging.” "Whether they were such as to be reiterated in the presence of the testatrix, would depend upon their nature and the.occasions upon which they were uttered.

ITasty and injurious expressions, used upon occasions of supposed provocation, would not probably be repeated; it is very improbable, indeed, that they would be. And yet, in the absence of information on this point, it is the hypothesis most likely to be true / and thus the connection between the evidential matter and the point to be proved, is made still more, remote.

This last consideration suggests another objection to- the evidence.

The propounders of the will, and those interested in propounding it, may be supposed ready with such means as they can command, to repel and explain any proofs as to direct or indirect influences, brought by them to bear upon the mind of the testatrix; but no such readiness could be expected on the part of the propounders, to meet the proofs in question, by counter-proofs; to explain casual conversations, with connexions, on various occasions, so as to rebut inferences, from them, contrary to the truth. With respect to these, it surely could not be expected that they would be forearmed, because they are too remote to be foreseen. There is no error.

Per Curiam,

Judgment affirmed.