Van Ness, J.
delivered the opinion of the court. The determination of this motion involves the consideration of the folloAving questions of law, \riz.
1. Is there sufficient evidence to establish the formal execution of the will of Johannes Van Dusen P
2. Was improper testimony admitted, or proper testimony excluded ?
3. Was Elizabeth Van Dusen a competent witness ?
4. Was the jury misdirected, by being instructed, that the sanity of the testator (Johannes ‘ Van Du-sen) was, in the first instance, to be presumed, and that it therefore was incumbent on the defendant, in order to avoid his will, to prove he was not sane ?
1. All the attesting witnesses to the will being dead, ' the plaintiff proved the hand-ivriting of two of them ; and some slight evidence'was given to prove the letters, S. W. to have been made by Samuel Wheeler, the third Avitness ; but to the latter, I do not now, nor did I at the time, attach any importance. In addition to this, the plaintiff gave very strong evidence of continued possession of the testator’s Kinderhook estate, by the devisees and those claiming under them, in conformity to the will; that estate, at the time of his decease, and for a long time afterwards, being the most valuable part of th.e real property, and the only portion of it not in dis[155]*155pute. The testator having made his mark, no evidence, of course, could be given or expected, to prove his handwriting. This is the substance of the testimony, as it Stood when the will was admitted; and there can be no doubt, that it was abundantly sufficient to entitle the plaintiff to read it to the jury ; but if it were otherwise, this .application must now be determined upon all the facts appearing in the case. The declarations of William Claw, one of the witnesses to the will, were given in evidence by the defendant •, by these the facts that the testator made his mark to the will, and that he (Claw) and S. Wheeler, duly attested the execution, are fully established ; so that this point is no longer left doubtful or controvertible. It is proper, however, to observe, that the counsel who argued in support of this application, appears to me to misapprehend the testimony admitted on the trial, to prove the hand-writing of S. Wheeler. It is supposed, that this was an attempt - on the part of the plaintiff, to prove Wheeler’s hand-writing, by what is termed, “ comparison of hands,” which, it is contended, according to the present settled law, is not competent testimony. I by no means intend to controvert the rule as stated ; but, according to my understanding of the evidence given, it has no application to this case. The amount of the evidence is, that the witness (H. A. Fan Dyck) had once seen Wheeler make the initial letters of his name to a paper then in his possession; and that from the peculiar character and structure of these letters, particularly the letter Y, (which was inverted,) he believed, the letters to the will were made by Wheeler. This is the usual manner of proving a man’s hand-writing, every day pursued in our courts of justice, and differs wholly from that species of evidence to which the objection applies.
2. The evidence improperly admitted is said to be, 1. That of Daniel Staats, relative to the declarations of [156]*156John A. Van Burén, when he and others, the children of Robert Van Dusen, sold the mill; 2. The admission of the deed given for the mill; and, 3. The proof'of the payment of the consideration, for which the mill was sold, to the grantors of the mill, according to the proportion of interest each claimed therein. The objection is, that this evidence ought not to have been received to prejudice the rights of the defendant; to this I will endeavour to give a satisfactory answer.
It must be distinctly understood that this testimony was offered to establish the formal execution of the will, by showing that possession had gone according to it, and for no other purpose; and also, that at the time it was admitted, the sanity of the testator had not become a subject of inquiry. The mill constituted but a small part of the estate of Johannes Van Dusen, if it ever did belong to him. The counsel for the defendant contend, that it never did belong to him; and they proved on the trial, that Robert Van Dusen purchased the ground upon which the mill was erected, subsequent to his father’s decease. It appears, however, that the mill was built at the joint expense of the three brothers, John, Robert and Lawrence ; that they occupied it as tenants in common ; that it was placed opposite to where a mill of Johannes Van Dusen, the father, had previously stood, on a different side of the Kinderhook creek, and the dam probably extended over the land formerly of Johannes. If the fact be, as the counsel for the defendant aver, that the mill was not parcel of the real estate of Johannes Van Dusen, then the testimony in question could not possibly have had any influence upon the decision of the cause, and the objection would, for that reason, fall to the ground. I admitted the evidence, however, in a stage of the trial when the mill appeared to have been parcel of the estate of which Johannes Van Dusen died seised. Was it then proper ? It is conceded that the fact of con» [157]*157tinUed possession, under an ancient will, is good evidence to show the formal execution of it. How is that fact to be made out in the present case ? The real estate of-Johannes Van Dusen, at the time of the trial, was occupied by various persons, and some of it had passed through several hands, before it came to the then possessors. To jprove that it had uniformly been held under the will, the plaintiff was obliged to trace back the possession of the different portions of it through the several successive occupants, up to the will. He accordingly first proved the partition of the farm in Kinderhook, between the three devisees, Robert, John and Lawrence, pursuant to the disposition thereof made in the will. The mill, then, owned and possessed by Staats, was next shown to have been claimed and possessed under the same title. It is insisted that it was not competent to prove this fact, by the declarations and acts of Van Burén, and the other parties to the deed to Staats and Van ^ Alen. How else is it to be made out ? They were in possession at the time, and it is every day’s practice to admit the declarations of the person in possession, to show under whom, and by virtue of what title he holds. That such evidence is proper, has been so repeatedly decided by this court, that I supposed the point was completely at rest. If the fact, that the mill was held under a title derived from the will of Johannes Va?i Dusen, had been shown by the mere naked declarations of John A. Van Burén, I possibly might have decided that it was not sufficiently established. But these declarations are supported by the solemn deed, executed by him and others, the children of Robert, to Staats and Van Alen, and by the payment of the consideration for which it was sold, in such a manner, as to demonstrate that they held under the will, and under no other title whatever. For these reasons, I think this testimony was properly admitted, and that the verdict ought not to be disturbed on this ground.
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Van Ness, J.
delivered the opinion of the court. The determination of this motion involves the consideration of the folloAving questions of law, \riz.
1. Is there sufficient evidence to establish the formal execution of the will of Johannes Van Dusen P
2. Was improper testimony admitted, or proper testimony excluded ?
3. Was Elizabeth Van Dusen a competent witness ?
4. Was the jury misdirected, by being instructed, that the sanity of the testator (Johannes ‘ Van Du-sen) was, in the first instance, to be presumed, and that it therefore was incumbent on the defendant, in order to avoid his will, to prove he was not sane ?
1. All the attesting witnesses to the will being dead, ' the plaintiff proved the hand-ivriting of two of them ; and some slight evidence'was given to prove the letters, S. W. to have been made by Samuel Wheeler, the third Avitness ; but to the latter, I do not now, nor did I at the time, attach any importance. In addition to this, the plaintiff gave very strong evidence of continued possession of the testator’s Kinderhook estate, by the devisees and those claiming under them, in conformity to the will; that estate, at the time of his decease, and for a long time afterwards, being the most valuable part of th.e real property, and the only portion of it not in dis[155]*155pute. The testator having made his mark, no evidence, of course, could be given or expected, to prove his handwriting. This is the substance of the testimony, as it Stood when the will was admitted; and there can be no doubt, that it was abundantly sufficient to entitle the plaintiff to read it to the jury ; but if it were otherwise, this .application must now be determined upon all the facts appearing in the case. The declarations of William Claw, one of the witnesses to the will, were given in evidence by the defendant •, by these the facts that the testator made his mark to the will, and that he (Claw) and S. Wheeler, duly attested the execution, are fully established ; so that this point is no longer left doubtful or controvertible. It is proper, however, to observe, that the counsel who argued in support of this application, appears to me to misapprehend the testimony admitted on the trial, to prove the hand-writing of S. Wheeler. It is supposed, that this was an attempt - on the part of the plaintiff, to prove Wheeler’s hand-writing, by what is termed, “ comparison of hands,” which, it is contended, according to the present settled law, is not competent testimony. I by no means intend to controvert the rule as stated ; but, according to my understanding of the evidence given, it has no application to this case. The amount of the evidence is, that the witness (H. A. Fan Dyck) had once seen Wheeler make the initial letters of his name to a paper then in his possession; and that from the peculiar character and structure of these letters, particularly the letter Y, (which was inverted,) he believed, the letters to the will were made by Wheeler. This is the usual manner of proving a man’s hand-writing, every day pursued in our courts of justice, and differs wholly from that species of evidence to which the objection applies.
2. The evidence improperly admitted is said to be, 1. That of Daniel Staats, relative to the declarations of [156]*156John A. Van Burén, when he and others, the children of Robert Van Dusen, sold the mill; 2. The admission of the deed given for the mill; and, 3. The proof'of the payment of the consideration, for which the mill was sold, to the grantors of the mill, according to the proportion of interest each claimed therein. The objection is, that this evidence ought not to have been received to prejudice the rights of the defendant; to this I will endeavour to give a satisfactory answer.
It must be distinctly understood that this testimony was offered to establish the formal execution of the will, by showing that possession had gone according to it, and for no other purpose; and also, that at the time it was admitted, the sanity of the testator had not become a subject of inquiry. The mill constituted but a small part of the estate of Johannes Van Dusen, if it ever did belong to him. The counsel for the defendant contend, that it never did belong to him; and they proved on the trial, that Robert Van Dusen purchased the ground upon which the mill was erected, subsequent to his father’s decease. It appears, however, that the mill was built at the joint expense of the three brothers, John, Robert and Lawrence ; that they occupied it as tenants in common ; that it was placed opposite to where a mill of Johannes Van Dusen, the father, had previously stood, on a different side of the Kinderhook creek, and the dam probably extended over the land formerly of Johannes. If the fact be, as the counsel for the defendant aver, that the mill was not parcel of the real estate of Johannes Van Dusen, then the testimony in question could not possibly have had any influence upon the decision of the cause, and the objection would, for that reason, fall to the ground. I admitted the evidence, however, in a stage of the trial when the mill appeared to have been parcel of the estate of which Johannes Van Dusen died seised. Was it then proper ? It is conceded that the fact of con» [157]*157tinUed possession, under an ancient will, is good evidence to show the formal execution of it. How is that fact to be made out in the present case ? The real estate of-Johannes Van Dusen, at the time of the trial, was occupied by various persons, and some of it had passed through several hands, before it came to the then possessors. To jprove that it had uniformly been held under the will, the plaintiff was obliged to trace back the possession of the different portions of it through the several successive occupants, up to the will. He accordingly first proved the partition of the farm in Kinderhook, between the three devisees, Robert, John and Lawrence, pursuant to the disposition thereof made in the will. The mill, then, owned and possessed by Staats, was next shown to have been claimed and possessed under the same title. It is insisted that it was not competent to prove this fact, by the declarations and acts of Van Burén, and the other parties to the deed to Staats and Van ^ Alen. How else is it to be made out ? They were in possession at the time, and it is every day’s practice to admit the declarations of the person in possession, to show under whom, and by virtue of what title he holds. That such evidence is proper, has been so repeatedly decided by this court, that I supposed the point was completely at rest. If the fact, that the mill was held under a title derived from the will of Johannes Va?i Dusen, had been shown by the mere naked declarations of John A. Van Burén, I possibly might have decided that it was not sufficiently established. But these declarations are supported by the solemn deed, executed by him and others, the children of Robert, to Staats and Van Alen, and by the payment of the consideration for which it was sold, in such a manner, as to demonstrate that they held under the will, and under no other title whatever. For these reasons, I think this testimony was properly admitted, and that the verdict ought not to be disturbed on this ground.
[158]*158But granting, for a moment, that this evidence was im« ProPerty received, it by no means follows that a new trial should be granted. It is for the admission or rejection of material testimony only, that new trials are awarded. I cannot believe that the evidence in question, in the least contributed to the verdict that was given. It was a mere feather in the scale of evidence. The determination of the cause depended on other leading and prominent facts, in comparison with which, those in question dwindle into trifles.
The testimony which it is contended was illegally excluded, is that relating to a purchase made by Staats, of the share of John Van Dusen, of the old mansion-house oí Johannes Van Dusen. The defendant offered to prove, that Staats relinquished the purchase, because some of Robert Van DuserCs children, denied the validity of John's title, under the will. Admitting all this to have been proved, it i%, difficult even to imagine that it could have had any effect upon the decision of the cause. The testimony, I continue to think, was properly excluded, on the ground of its utter inconclusiveness and immateriality.
3. That Elizabeth Van Dusen, was a competent witness, has been decided in the case of Jackson, ex dem. Griswold, v. Bard. (4 Johns. Rep. 230.) She had no other interest in the cause than what grew out of her right of dower in the premises. The verdict in this cause could not be given in evidence, in a suit to be brought by her for the recovery of her dower. (Peake's Evidence, 27.)
4. As to the alleged misdirection of the jury. In all cases where the act of a party is sought to be avoided on the ground of his mental imbecility, the proof of the fact lies upon him who alleges it, and until the contrary appears, sanity is to be presumed. This rule of law is recognised by all the elementary writers on the subject; [159]*159and in all the adjudged cases which I have met with, , , . , , . • i both in law and equity, the court, in their reasoning and opinions, seem to take it for granted. (Swinburn, 3. 45. Bac. Abr. let. F. tit. Idiots. 1 Peake's Ev. 373. Lovelass on Wills, 15. 142. 6 Cruise’s Dig. 14. 3 Atkyns, 361. Tucker v. Phipps. 3 Br. Ch. Rep. 443. Attorney Generals. Parnther. 13 Vesey, jun. 87. White s. Wilson.)
This rule, undoubtedly, has its qualifications ; one of which is, that after a general derangement has been shown, it is then incumbent on the other side to show that the party who did the act, was sane at the very time when it was performed. The defendant does not complain that the law was not so stated ; nor is there any just ground for such complaint, because, in fact, it was so laid down to the jury. But independently of authority, the law ought to be so. Almost all mankind are possessed of at least a sufficient portion of reason to be able to manage the ordinary concerns of life. To say, therefore, that sanity is not to be presumed, until the contra* ry is proved, is to say that insanity or fatuity is the natural state of the human mind.
There is another ground upon which the motion for a new trial, is attempted to be supported, viz. that the verdict is against the weight of evidence, both in regard to the sanity of Johannes Van Dusen, when he executed his will, and the adverse possession relied upon by the defendant. The law on the first point, as has been already shown, was correctly stated to the jury, and on the other it has not been called in question. Both were questions of fact, and as such were submitted to the decision of the jury, who have decided in favour of the plaintiff. One of my brethren, I understand, would have been as well, and another better satisfied, if on the question of sanity, the verdict had been the other way ; but we all concur in the opinion, after a full consideration of the evidence, that it is not expedient to grant a new trial on this [160]*160ground. I forbear to express my own opinion on which, pide the weight of evidence lies, lest it might prejudice any future investigation that may take place.
I have thus, as briefly as the nature of the case will admit, considered the various questions arising upon this case, and the result is, that the motion for a new trial must be denied. .
Rule refused.