Page:United States Reports, Volume 209.djvu/298

 272 OCTOBER TERM 1)7. Opinion d tl Court.  U.S. that she had left her property as and in the rnner stated in the will. �Appellauts' brief serts that the offer was made in suppert of the issue of want of mental capacity in the testatrix at the time she made her will. In $tr v. �ave, 4 Wash. C. 262, 265;$. C., 23 Fed. Cases, 35, 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 construc- tion of the instrument or to support r destroy its validity. In Throckmorton v. Holt, 180 U.S. 573, Mr. Justice Peckham, speaking for the court, expressed the opinion, after much cousidemtion, that the principles upon which our law of evi- dence is founded necessitated the exclusion of such evidence, both before and after the execution, saying: "The declarations are purely hearsay, being merely sworn declarations, and when no part.of the res gest are not within any of the recognized exceptions admitting evidence of that kind. "Although in some of the cases the remark is made that declarations are admissible which tend to show the state of the affections of the deceased as a mental condition, yet they are generally stated in cases where the mental capacity of the deceased is the subject of the inquiry, and in those cases his declarations on that subject are just as likely to aid in answer- ing the question as to mental capacity as those upon any other subject. 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 uusworn declarations as to any other fact. �"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 evi-

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