Mr. Chief Justice Sharkey
delivered the opinion of the court.
The executors of James Luckett, who died on the 25th of December, 1837, presented his will for probate to the probate court of Claiborne county, which was resisted by Brock, in behalf of his two children, who were legal distributees of the estate of Luckett, being his grand children, on the ground of the insanity of the testator. The judge of probate established the will, and from his decision Brock appealed.
The evidence is set out in the record, being the testimony of seventeen witnesses. It is a question of fact merely, to be deter[478] mined by the testimony, and should' have been determined by a jury. Their decision would have been much more satisfactory, and why it was not so tried, we are at a loss to conjecture. The power of the judge of probate, however, has not been questioned.
It appears that on the 4th of March, 1837, Luckett had an attack of apoplexy, which produced partial paralysis and dementia. Amongst the number of witnesses were four physicians, one of whom, Dr. Russel, attended him from the time of his attack until the 9th of July. Dr. Barnes visited him twice. Dr. Rossman saw him in an attack of ague and fever, and prescribed for him, and Dr. Hogg was called to give his opinion of the effects oí the disease. The opinions of these medical gentlemen are entitled to great weight, and constitute the only testimony which is at all calculated to render the case doubtful, fortified as it is by the testimony of the subscribing witnesses .to the will. Dr. Russel says that from the 11th March, until the. 9th of July, “his powers of locomotion and articulation gradually increased,” but that he never saw him during the time capable of transacting business; but that he was always in a state of dementia, sometimes monomania, and sometimes a maniac. It was his opinion that he never could recover so as to have the use of his mental faculties in their former vigor. He did not believe he could have had a lucid interval up to the time of his death. By a lucid interval, he meant a state of mind free from disease. Dr. Barnes visited him on the 22d of June, and describes his condition as described by Dr. Russel, and thought him incapable of attending to business. He saw him again on the 4th of July, in much the same condition, except that he could call proper names a little better, but seemed more irritable. He believed his disease to be of that permanent character that could admit of no lucid interval, unless there was an entire removal of the cause, of which at his age and from the symptoms he thought improbable. That palsy succeeding apoplexy is generally attended by an injury of the brain, which in early life may be relieved, but that in advanced life recovery rarely takes place, and he supposed the patient to be about sixty. Dr. Rossman heard the testimony of the other physicians, and from that testimony, the age of the patient and the symptoms he saw, he thought recovery improbable. He had never known [479] such a case to recover. Dr. Hogg said he had- read of patients who had recovered from paralysis in a short time, in other cases of partial recovery, but most commonly it was permanent. When the patient gradually recovers, the mind gradually improves, but does not attain its former vigor, unless there is a complete recovery. That in old age there was greater improbability of recovery from paralysis. Dr. Hogg describes the symptoms of the disease to be such as those evinced by the testator, and says that during the continuance of such symptoms, there could not be a lucid interval. Eight other witnesses, who saw him at different times, coming up to a short time before his death, which occurred on the 25th of December, testified conclusively to the testator’s insanity and incapacity for transacting business.' Some of them saw him frequently and others only occasionally, and some of them speak of his being better at times. Generally there was evident want of capacity, and' no certain proof of a lucid interval established, unless it be by the testimony of Hamer, up to a few days, or perhaps the day before he made the will. That he was at some times better than at others seems to be established, both from the opinions of some of the witnesses and the circumstances detailed by them. From the testimony of these witnesses, connected with that of the physicians, it seems next to impossible that a lucid interval either could or did take place. Opposed to such a supposition however is the testimony of five witnesses; Wm. H. Hamer, an intimate acquaintance of Luckett’s; E. G. Sessions, also an intimate acquaintance, who drafted the will, and was present when it was signed; and the three subscribing witnesses, Gibson, Daniel Whitaker and Aaron Whitaker. They all speak as conclusively and positively of the testator’s sanity, as do the others against it. Hamer saw him but twice, first in November, and had then a conversation with him; he saw him again on the 10th of December, and at both interviews'he thought him sane. But we should judge from the circumstances detailed by the witness, rather than from his opinions. Luckett, at their first interview, related some of the anecdotes and occurrences of early life which the witness had heard him tell before, and this it is said is an evidence of insanity. The physicians say it is; but a fondness for relating the events of early life, is a peculiarity of old age as [480] well as of insanity. We cannot certainly determine from which cause the relation of former incidents, on this occasion, proceeded. The witness says that he did not tell the same story twice; on other occasions other witnesses say that he did this. Hamer also says that he told of circumstances that had transpired but a few years before.
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Mr. Chief Justice Sharkey
delivered the opinion of the court.
The executors of James Luckett, who died on the 25th of December, 1837, presented his will for probate to the probate court of Claiborne county, which was resisted by Brock, in behalf of his two children, who were legal distributees of the estate of Luckett, being his grand children, on the ground of the insanity of the testator. The judge of probate established the will, and from his decision Brock appealed.
The evidence is set out in the record, being the testimony of seventeen witnesses. It is a question of fact merely, to be deter[478] mined by the testimony, and should' have been determined by a jury. Their decision would have been much more satisfactory, and why it was not so tried, we are at a loss to conjecture. The power of the judge of probate, however, has not been questioned.
It appears that on the 4th of March, 1837, Luckett had an attack of apoplexy, which produced partial paralysis and dementia. Amongst the number of witnesses were four physicians, one of whom, Dr. Russel, attended him from the time of his attack until the 9th of July. Dr. Barnes visited him twice. Dr. Rossman saw him in an attack of ague and fever, and prescribed for him, and Dr. Hogg was called to give his opinion of the effects oí the disease. The opinions of these medical gentlemen are entitled to great weight, and constitute the only testimony which is at all calculated to render the case doubtful, fortified as it is by the testimony of the subscribing witnesses .to the will. Dr. Russel says that from the 11th March, until the. 9th of July, “his powers of locomotion and articulation gradually increased,” but that he never saw him during the time capable of transacting business; but that he was always in a state of dementia, sometimes monomania, and sometimes a maniac. It was his opinion that he never could recover so as to have the use of his mental faculties in their former vigor. He did not believe he could have had a lucid interval up to the time of his death. By a lucid interval, he meant a state of mind free from disease. Dr. Barnes visited him on the 22d of June, and describes his condition as described by Dr. Russel, and thought him incapable of attending to business. He saw him again on the 4th of July, in much the same condition, except that he could call proper names a little better, but seemed more irritable. He believed his disease to be of that permanent character that could admit of no lucid interval, unless there was an entire removal of the cause, of which at his age and from the symptoms he thought improbable. That palsy succeeding apoplexy is generally attended by an injury of the brain, which in early life may be relieved, but that in advanced life recovery rarely takes place, and he supposed the patient to be about sixty. Dr. Rossman heard the testimony of the other physicians, and from that testimony, the age of the patient and the symptoms he saw, he thought recovery improbable. He had never known [479] such a case to recover. Dr. Hogg said he had- read of patients who had recovered from paralysis in a short time, in other cases of partial recovery, but most commonly it was permanent. When the patient gradually recovers, the mind gradually improves, but does not attain its former vigor, unless there is a complete recovery. That in old age there was greater improbability of recovery from paralysis. Dr. Hogg describes the symptoms of the disease to be such as those evinced by the testator, and says that during the continuance of such symptoms, there could not be a lucid interval. Eight other witnesses, who saw him at different times, coming up to a short time before his death, which occurred on the 25th of December, testified conclusively to the testator’s insanity and incapacity for transacting business.' Some of them saw him frequently and others only occasionally, and some of them speak of his being better at times. Generally there was evident want of capacity, and' no certain proof of a lucid interval established, unless it be by the testimony of Hamer, up to a few days, or perhaps the day before he made the will. That he was at some times better than at others seems to be established, both from the opinions of some of the witnesses and the circumstances detailed by them. From the testimony of these witnesses, connected with that of the physicians, it seems next to impossible that a lucid interval either could or did take place. Opposed to such a supposition however is the testimony of five witnesses; Wm. H. Hamer, an intimate acquaintance of Luckett’s; E. G. Sessions, also an intimate acquaintance, who drafted the will, and was present when it was signed; and the three subscribing witnesses, Gibson, Daniel Whitaker and Aaron Whitaker. They all speak as conclusively and positively of the testator’s sanity, as do the others against it. Hamer saw him but twice, first in November, and had then a conversation with him; he saw him again on the 10th of December, and at both interviews'he thought him sane. But we should judge from the circumstances detailed by the witness, rather than from his opinions. Luckett, at their first interview, related some of the anecdotes and occurrences of early life which the witness had heard him tell before, and this it is said is an evidence of insanity. The physicians say it is; but a fondness for relating the events of early life, is a peculiarity of old age as [480] well as of insanity. We cannot certainly determine from which cause the relation of former incidents, on this occasion, proceeded. The witness says that he did not tell the same story twice; on other occasions other witnesses say that he did this. Hamer also says that he told of circumstances that had transpired but a few years before.
The testimony of Sessions is still more conclusive. He went to Samuel Luckett’s on the morning of the 11th of December, and wrote the will at the request, and according to the dictation of James Luckett, and saw Luckett and the attesting witnesses sign it. After dictating the will, Luckett requested the witness to read it, and some parts of it twice. That he had been intimately acquainted with Luckett for eight years, and on this day staid with him five hours, had much conversation with him, and heard him converse with others. During this time he observed him closely, and considered him sane and capable of transacting business. Sessions relates conversations that took place, and there is nothing in them indicating insanity. From the testimony of this witness, it is positively certain that great improvement had taken place, for he had seen Luckett in April or May preceding, and did not then consider him capable of transacting business. He also saw him in November, at which time he thought he had improved, but still he gave evidences of insanity. Now can it be possible that an intelligent man, well acquainted with Luckett, who had seen him in May and November, and then knew him to be insane, and who on the 11th of December was with him five hours, with his suspicions awakened, and closely observing him, could have been so much mistaken? It is at least highly improbable. The situation of Sessions was peculiarly calculated to detect incoherencies of thought. He was performing the solemn duty of writing his will, and must have conversed with him as to its provisions; and Mr. Sessions knew that unless he was of sound mind at the time, the will was void. The situation of this witness; the duty he was performing; the watchfulness that was awakened; the reasons given for his opinion, and the intelligence manifested in his testimony, all combine to entitle him to the highest degree of credit.
The testimony of David D. Gibson, one of the subscribing wit[481] nesses, is no less clear and unequivocal. He was sent for, and went to the house of Samuel Luckett. There he met Mr. James Luckett, with whom he had a very slight acquaintance. James Luckett met him on the gallery and called him by name. He was with Luckett three or four hours, conversed with him much, and heard him converse with others, and “never heard him make use of a foolish expression.” He also relates conversations and circumstances, none of which indicate insanity, on the contrary they indicate a natural state of mind. The witness says he did not hear him make a single irrational remark during the day, but on the contrary he seemed to be sensible and capable of transacting his'business.
The testimony of Daniel Whitaker, another subscribing witness, is to the same effect. He had been long and intimately acquainted with Luckett, and on that day conversed with him, and heard^ him converse with others, and “thought he acted like a rational and sensible man.”
The testimony of Aaron Whitaker, the other subscribing witness, is in exact accordance with that which has preceded.
Contrast this testimony with that of the witnesses who testify to his insanity, and no one can doubt but what there was a change, and a great change in Luckett’s intellect. On former occasions it required but a few minutes to satisfy a common observer of his insanity. To some it was perfectly apparent in his countenance, his actions and his speech. Some were not at a loss to detect it in a few minutes. To all of them it was a thing perfectly obvious. If such a state of mind had existed on the 11th of December, could it have escaped the observation of all four of the witnesses then present, who were all on the alert, endeavoring to discover the state of his mind ? The 'conversation on that day turned on various topics, and is it not remarkable that in none of them was the slightest evidence of dementia observed; not even to those who had seen it palpable in him before. Witnesses too whose duty it was to know the condition of his mind. These witnesses were the only persons who testify to his condition on that day; their testimony is confined to the time of making the will, and the other witnesses testify to his condition at times anterior; some of them had not seen him for months before, and but [482] few of them immediately preceding the date of the will. On this state of the testimony we cannot do otherwise than decide in favor of the validity of the will, and in this determination we think we are sustained by authority.
It is the duty of the subscribing witnesses to be satisfied of the sanity of the testator, for the law requires them not only to attest the act of signing or publishing the will, but it requires them to know whether the testator has the capacity to make a valid will. Hence their testimony is entitled to greater weight than the testimony of those who had no such duty to perform, and especially, is entitled to greater weight than the testimony of witnesses who were not present at the time of executing the will, and who did not see the testator on the day of its execution. 3 Mass. Rep. 236; 4 Mass. Rep. 594; 7 Dana’s Rep. 92. In this last authority jgreat credit was attached to the testimony of the draftsman, on the ground that his attention must have been more especially directed to the condition and capacity of the testator.
The case of Clarke & Cartwright v. Cartwright, 1 Ecclesiastical Rep. 47, may be cited in support of our determination in this case. There the testatrix was proved to have been insane for a considerable length of time, so much so that her hands were confined, or she was put into a straight waistcoat. At times she had lucid intervals, and the will was established, it being in the handwriting of the testatrix, because it seemed from the circumstances to be a rational act, rationally done, although one of her attendants testified that during the writing of the will she exhibited her usual evidences of insanity. She had repeatedly asked to have pen, ink, and paper, which her physician refused; he ultimately yielded to her wish, but told her that she was incapable of writing any thing, and that he would be evidence against her. The court held that the strongest and best proof of a Ipcid interval is that which arises from the act itself. Apply this rule to the case before us; Luckett, it is true, did not write his will, but he dictated it in a rational manner; he also requested that it should be read to him, and some parts of it twice. This was very natural, and consistent with a consciousness of what he was doing. We learn from this authority also that for a testator to converse rationally and show a capacity for understanding the state of his affairs, is [483] a lucid interval. This certainly Luckett did. He not only conversed rationally, but did so for five- hours. He showed that he understood what he was doing, and understood also the state of his business generally. That his mind had not its original vigor may to some extent be true; this was not to be expected; he was infirm from both age and disease. It is not necessary that he should have been then what he had been in youth or in health. It is sufficient if he had a disposing mind, and was able to make a disposition of his estate with understanding and reason. 11 Vesey, 11; 3 Starkie’s Evidence, 1705, note 1. Whilst we entertain great respect for the opinions of the physicians who testified, and should under more doubtful circumstances consider them conclusive, yet we do not feel at liberty to predicate our opinions on theory, and reject the positive testimony of the four witnesses present at the execution of the will, whose peculiar duty it was to observe with caution and discernment the condition of the testator’s mind. And their testimony is not altogether irreconcileable with that of the physicians, who united in saying that his mind would improve as his health improved, although they thought a recovery very improbable. Now it does appear that on the morning he made his will he had walked to a neighbor’s house and back, which was half a mile off; this was certainly a great improvement from the time he had been seen by Drs. Russel and Barnes.
After the testimony of the subscribing witnesses was closed, the counsel for the parties resisting the will interrogated Mrs. Amelia Ann Russel as to the state of Luckett’s mind on the 12th of December, the. day after the will was made; but the court refused to receive the testimony, and this it is said is error, for which the judgment must be reversed. As a general proposition, it is true that the condition of mind both before and after the execution of the will is proper to be inquired into; but this is circumstantial testimony only. If it had been offered to a jury, the. question would be different. Here it was offered to the judge. The object of testimony is' to satisfy the mind as to the fact. The judge had heard the positive testimony of Sessions and the subscribing witnesses, and it was for him to determine whether he was satisfied of the testator’s capacity, or whether he would [484] hear further circumstantial evidence. He must have been satisfied with the proof before him, and that such proof as that offered could not change his mind, or he would have heard it. The question was one for his determination on the evidence. The influence of such evidence proposed to a jury could not be known, and a judge would commit an error to refuse it; but when it is proposed to a judge himself, he is certainly capable of knowing what weight it would have. If he is satisfied that it could have tro weight, it cannot be error to refuse to hear it. I am satisfied if it had been admitted that it would not have changed my mind, and so I presume was the judge of probate.
The judgment must be affirmed.