MARTHA KOON, Appellant, v. BLARMU KOON and R. Y. KOON, Nominated Executors of the Last Will and Testament of the Late J. B. KOON.

APPEAL FROM THE MONTHLY AND PROBATE COURT OF MONTSERRADO COUNTY. Argued April 6, 1960. Decided May 6, 1960. 1. A trial judge may summarize evidence for the benefit of the jury where the weight of the evidence is left to be decided by the jury. 2. It is not prejudicial for a trial judge to state, in the presence and hearing of the jury : “If the witness wants to lie, he must lie, and if he wants to tell the truth, he must tell the truth outright.” 3. In order to justify submission to a jury of a will contest on the ground of undue influence, there must be evidence tending to prove that, absent such influence, the will would not have been executed, and that such influence was in fact exercised. On appeal from a judgment rendered upon a jury verdict declaring a will submitted for probate to be genuine, judgment affirmed. A. Gargar Richardson for appellant. Richard A. Diggs and Wheaton S. Thompson for appellee. MR. Court. JUSTICE MITCHELL delivered the opinion of the One J. B. Koon of the City of Monrovia, Montserrado County, was possessed of real and personal property during his natural life. He executed a last will and testament on May 20, 1958 and died on May 24, 1958. When the aforesaid will was offered for probate at the Monthly and Probate Court by Blarmu Koon, Robert Y. Koon and Boh Torbor, the decedent’s son, nephew and niece, respectively, objections were filed separately by Martha Koon and Bahyo, purported widows of the late J. B. Koon, and pleadings in both cases travelled as far as the rejoinder and rested. LIBERIAN LAW REPORTS 35 The cases were called in the court below and issues of law disposed of by Judge D. W. B. Morris, who ruled the objections and subsequent pleadings to jury trial because they raised issues of fact. According to the records before us on review, at the call of the case at the March, 1959, term of the Circuit Court of the Sixth Judicial Circuit, Montserrado County, counsel for both objectants gave notice that, although they had filed separate objections for their respective clients, yet, because their grounds were almost identical in nature and substance, it was agreed between the parties that both cases could be consolidated into one and a joint trial held for expediency; and they so requested the permission of the court. There were no objections made by the opposite parties against this request; hence the court proceeded to hear the cases together. On April 4, 1959, the jury returned a verdict declaring the will to be the genuine last will and testament of the late J. B. Koon. To this verdict, Martha Koon excepted and noted an appeal before this Court. Objectant Bahyo rested her case at that point and did not appeal. The case has come forward before us on a bill of exceptions containing thirteen counts that have been drawn in a very unscrupulous and confusing manner. These counts do not merely contain a conglomeration of meaningless words; they also display a lack of professional skill. Nevertheless we have endeavored to draw a synopsis of that which we consider to be the principal points presented so that we may be enabled to build an opinion of this Court. Those grounds are in substance as follows: 1. That the judge invaded the province of the trial jury when he said in his charge : “I should like to mention to you that Mr. M. P. Harris stated that he did not see Diggs guiding the testator’s hand, nor Johnson; but these minor conflicting statements are not sufficient in law to vitiate the fact that the testator signed the will in their presence, because it was 36 LIBERIAN LAW REPORTS brought out during the course of the signing one of the originals that the testator collapsed and his hand had to be guided.” 2. That the judge further erred in his charge to the jury by emphasizing the conflicting statements of objectants’ witness, John Keen, when he testified at one time : “Testator did not speak after he left the hospital until he died,” and in answer to another question, contradicted himself by saying: “On May 2o, 1958, the night on which the will was signed, I was sent by my brother, the testator, to the office of Attorney Diggs to call him and ask him to bring his will as he was ready to sign it.” 3. That fraud and undue influence were exerted on the testator at the execution of the will. 4. That attesting witness M. M. Johnson was not requested by the testator to witness his will. 5. That at the execution of the will the testator was unconscious and could not speak to understand the contents of the will, nor could he write to have signed it. 6. Exceptions taken to the verdict of the petty jury, and judgment of the court below. It has been difficult for us to cull the foregoing from the document filed in this case and termed the bill of exceptions, which in law is the framework of any regular appeal before this Court. But although we have succeeded, we do not feel it amiss to urge upon all practitioners before this bar for future benefit that all grounds of appeal be laid in a clear, distinct, unambiguous and intelligent manner for the purpose of affording the Court the privilege of passing upon them as broadly as the circumstances may require; otherwise, we may be obliged to invoke the rules of pleadings strengthened, by the rules of this Court. The case was assigned and called for hearing on April 6, 196o, when appellees’ counsel strongly and intelligently presented the grounds of their briefs in their arguments. In reviewing Counts “I,” “2,” “3,” “4.” and “5” of the LIBERIAN LAW REPORTS 37 bill of exceptions which embrace exceptions taken to the Judge’s charge to the petty jury when he endeavored to explain to them the evidence adduced at the trial by both sides, we fail to harmonize our legal opinion with that of the appellant because our statutes are clear and distinct in this regard. “The court or jury may, in its discretion, inquire into the credibility of any witness of any party.” 1956 Code, tit. 6, � 758. And for the judge to have summarized the evidence adduced at the trial in his charge to the jury was neither an invasion on the province of the jury nor reversible error, especially when the weight and effect which the said evidence imported was exclusively the right of the jury; and appellant’s point of argument on them not being in harmony with any principle of law cannot be entertained. They are therefore denied and said counts not sustained. Coming now to the point of undue influence exercised over the testator at the execution of the will, which was so strongly argued by appellant’s counsel before this bar, we shall make some reference to the records before us to have our minds sufficiently cleared on that which the objectant regards as undue influence. Objectant Bahyo testified as follows : “Whenever he spoke you could hardly hear what he said. After observing this condition of the testator, John Blarmu and myself were thinking about what to do because the testator had said to me that, after he left the hospital, he would call in someone to make his will. John Koon told me that he knew one of the testator’s lawyers, but I told him that the testator had a lawyer called Dukuly. Then John said that he would go and call the lawyer he referred to, so that he might come in and see if the testator could make a will; and he brought in Attorney Diggs. When Mr. Diggs reached the room he told the whole family to go outside with the exception of Blarmu Koon.” Witness Richard Diggs testified as follows: 38 LIBERIAN LAW REPORTS “When I got there I met Dr. M. M. Gebara attending the decedent; I waited until he was through. When he left, I went into the decedent’s room where the people mentioned before and others were present. I then asked the decedent in their presence if he was the one who had sent for me. He replied : ‘Yes,’ and said : “I want you to make my will.” I asked him whether he wanted any of his relatives to remain in the room; he said : ‘No.’ Thereupon I asked them to leave the room, and decedent and I remained in closed doors. He then began to give me the details of how he wanted his estate distributed. At certain times I could not understand the names he wanted to call because those names are indigenous and common only to the Kru tribes with which tribes I am not very much familiar. Based upon this reason, I on several occasions came out of the room and inquired of John Koon, Blarmu Koon, Bahyo and R. Y. Koon as to the actual names. Upon getting the names straightened out, Mr. Koon, the decedent, would tell me what property he bequeathed or devised to each of the names. This went on for several times, and when I asked the decedent whether he had property anywhere besides Monrovia and Kakata, he told me to call Mme. Bahyo, one of the objectants herein, to bring a bunch of keys, and that I should open a steel trunk which he had in his room, and I would see all the documents in connection with whatever property he had. This, I did in the presence of Bahyo, but only found lease agreements, etc., in connection with his property in Monrovia and Kakata. I was with Mr. Koon from 7 o’clock that evening until half past 9, serving him, at which time I concluded the data for the making of the will, and I left.” We have quoted this portion of the record taken in the case in order to establish whether it shows that the testator acted on his own accord or his acts were promoted by any semblance of fraud or coercion. LIBERIAN LAW REPORTS 39 “The issue of undue influence is not raised unless the record contains some admissible evidence of a probative force that such influence was exercised, and that it subverted and overpowered the will of testator caused execution by him of a will which he would not have executed but for such influence.” Olds v. Traylor, 180 S.W . zd 511, 516 (Tex. Civ. App. 1 944) “In order to justify submission of the case to the jury, there must be some evidence tending to show loss of power to decide or domination of the testator’s mental processes.” Meyer v. Geiger, 34 N.E. 2d 581, 582 (Ohio App. 1938) . From a diligent perusal of the records taken in this case in the court below it is nowhere apparent that the testator was coerced by any adverse influence whatsoever during the execution of the contested will, nor has it been established that fraud, deceit or connivance was practiced by any of the beneficiaries under the said will; but on the contrary, the testimony of the witnesses is conclusive that the will was executed upon the free will of the testator under his uninfluenced dictation, and acknowledged to be his last will and testament in the presence of the attesting witnesses. It is obvious therefore, that evidence of such a grade had to claim the consideration of the jury in their effort to pass upon its credibility and effect to arrive at a just and legal verdict. On the other hand, if the objectant had been fortunate to establish by proof some improper conduct of any of the beneficiaries or otherwise, which would constitute fraud, or some compulsory process invoked which would have had an invalidating effect on the legality of the will, then it would have been the bounden duty of the jury to direct its attention thereto; but sadly, this does not obtain; and this Court has often emphasized the legal principle that allegations and averments do not amount to proof. The law does not permit a mere allegation of undue influence and fraud to be sufficient ground without proof to warrant the setting aside of a will when 40 LIBERIAN LAW REPORTS its execution is conclusively proven to be legal and with persuasive force. This point of execption is also not sustained. Another point of exception is that witness M. M. Johnson did not sign the contested will upon the request of the testator. We shall also refer to this witness’s testimony whilst on the witness stand to determine the soundness or unsoundness of this ground of exception. He testified as follows : “Q. Say also whether you know of the said J. B. Koon executing a last will and testament, to which will you were an attesting witness, in company with other attesting witnesses. “A. Yes. “Q. I hand you document marked by court: It- I.’ Say what you recognize it to be, and whose signatures appear thereon. “A. To the best of my observation this instrument I recognize to be the carbon copy of the instrument which was presented to me on a certain night with the request from the testator whose last will and testament I was made to understand that the instrument was. This instrument bears the signature of the testator, J. B. Koon, and the genuine signatures of attesting witnesses Richard A. Diggs, M. P. Harris and Michael Johnson, the last of which is my genuine signature. “Q. Please tell the court and jury, Mr. Witness, whether the signature of the testator you have just identified was affixed to the said instrument in your presence and in the presence of the other two attesting witnesses. “A. Yes, on the original of the two or three of said instruments and on the copies he was assisted because his strength failed him in the midst of signing. “Q. Did the testator speak for you to hear when, as LIBERIAN LAW REPORTS 41 you alleged, he told you that the will in question was his will? “A. I believe he did. He had told me that he sent Attorney Diggs to make his will a day previous, but on the particular night in question, he could not speak loud enough, but every clause of the will that was read to him he approved by nodding his head.” This testimony of attesting witness Johnson, does not harmonize with the point of exception because he positively said that he was requested by the testator to witness the contested will. But granted that he was not requested by the testator to subscribe his name to the will in question as an attesting witness–although the records show to the contrary–in the opinion of the court, the exception is too microscopic, especially when the witness testified to the fact that the testator had told him on the previous day that he had requested Attorney Richard Diggs to prepare his will, which will was then and there read and acknowledged by the testator in his presence to be his last will and testament, and then signed in his presence by the testator. It is a fact that courts of law are more narrowed in technicalities than courts of equity; but a needle-eye objection such as the one in point might not gain merit in a court of law when its aim has been circumvented by other circumstances. An attesting witness has been authoritatively defined to be : “A person who signs his name to an instrument to prove it and for the purpose of identifying the maker or makers.” International Trust Co. v. Anthony, tot P. 781, 783, 45 Colo. 474, 481 (1909). This point being not well taken and contrary to the records before us, is not sustained. Witness Johnson and the other attesting witnesses having also testified to the fact that the testator was not unconscious on the night of the execution of the contested will, and objectant’s witness, John Koon, having also testi- 42 LIBERIAN LAW REPORTS fled to the fact that he was sent to call Attorney Diggs by the testator, who also asked him to request the attorney to bring along his will because he was ready to sign it, is sufficient to convince any mind that, at the execution of the will, the testator was not unconscious of his acts. This exception being wanting is not sustained. During the course of his argument, counsel for appellant belabored the point that, during the trial of the case, the trial judge made the following statement in the presence and hearing of the trial jury: “If the witness wants to lie, he must lie, and if he wants to tell the truth, he must tell the truth outright.” This statement he regarded to be prejudicial to the appellant’s interest. Going back to the records taken in the case for guidance it is shown that, whilst John Koon was on the witness stand, in answer to a question, he said : “I have taken oath and don’t want to lie.” Upon making this statement, according to the judge’s ruling recorded in the minutes of the same day, this statement of the judge was made off the record ; nor is any trace thereof to be found in the record ; but even if it had been recorded, in our judgment it has no prejudicial effect because the credibility of the witness’s statement was exclusively the province of the jury, and they had to determine in their deliberations whether the testimony of the witness was false or true. Yancy v. Republic, 4 L.L.R. 4 (1933). And now having explored the records before us on appeal as well as the many points of exceptions as patiently as is possible within our judgment, we are of the opinion that the verdict rendered by the petty jury in the court below was sound and in perfect harmony with the evidence adduced at the trial, and the judgment of the court confirming the same was in harmony with law and the facts controlling; therefore they should not be disturbed. The judgment of the court below is therefore affirmed with costs against the appellant; and it is hereby so ordered. Affirmed.