By the Court. Willard, P. J.
I. The verdict of the jury on the first trial having been in favor of the defendants on all the issues, and the chancellor having refused to grant a new trial, so far as the deed to David Russell, of the Salem farm, is concerned, this court cannot regularly, while that order is in [519]*519force, entertain a motion to set aside that deed. Had the chancellor continued in office, he certainly would not have listened to a motion of this kind. On a proper state of facts, he might have permitted a rehearing, if the application for that purpose had been made in time. This court, having succeeded to the jurisdiction of- the late court of chancery, should not lightly and capriciously depart from the former practice. Whatever might be the power of the court over the verdict, and conceding that it can disregard the verdict and grant relief against the finding of the jury, it is believed no case can be found where it will disregard its own solemn decision made upon a full argument of the cause.
Although much of the evidence on the last trial would have been applicable to a trial of the issues as to both deeds, yet the last verdict had reference to the deed to Alida Russell, alone. The testimony taken on the trial of that issue does not lay the foundation for a motion to vacate another deed, upon the validity of which the jury have expressed no opinion. The question with respect to the validity of the deed to Mr. Russell, for the Salem farm, was disposed of by the chancellor, and it cannot be revived in this way, if it can he at all.
II. The motion of the defendants to declare both deeds valid cannot be granted. Even if both verdicts had been in favor of the defendants, they would not have been entitled, under the pleadings, to any affirmative relief. The dismissal of the bill with costs, is all they pray for in their answer, and is the highest relief that the practice of the court justifies. The effect indeed of such decree would indirectly affirm the validity of the deeds, and would probably be a bar to another action for the same premises, either at law or in equity.(a) It would require a very strong case to induce the court to disregard the verdict of a jury and grant a decree in opposition thereto.
III. The important question is whether there is a sufficient ground disclosed in the case to call for the interference of the court with the verdict for the plaintiffs on the last issue.
(a) This point was expressly decided by the court of appeals in Burhans v. Van Zandt, January term, 1853, after this opinion was written.
[520]*520The present controversy being between persons standing in" the same relation to the testator, the plaintiffs claiming under a will and the defendants under a deed from the same testator, alledged to have been made after the will, it is not controlled by the English practice by which they never bind the inheritance by a single verdict, on an issue devisavit vel non. With them the heir is the favored party, and the presumption is against any disposition of the estate which interferes with the regular course of descent. In the present case the law makes no presumption in favor of the grantee, over the devisee. The cause must therefore be determined by the evidence. The court is not bound to grant a new trial, because the verdict on the former trial was the other way. The result of the cause does not depend upon the number of successive verdicts which may be given.
As the object of a feigned issue is to satisfy the conscience of the court, a new trial should not be ordered if the trial has been fairly conducted, and the conclusion of the jury is the same as the court itself would have come to, upon the evidence in the cause. It is quite clear that in reviewing such a case, the court is not bound by the same rules that prevail on bills of exceptions In the latter case the object is to correct the errors of the judge at nisi prius in matters of law, which are prejudicial to the party excepting. Ho more of the testimony is set forth than is sufficient to show the materiality of the decision complained of. But in a motion for a new trial on a case, and especially when the object is to set aside a verdict on a feigned issue, the whole evidence is set forth at large. If the court can see, from the whole case, that no error has been committed by the presiding judge, either in admitting or excluding evidence, or in his charge to the jury, prejudicial to the complaining party, and if upon the whole case the verdict appears to be right, even though some erroneous decisions may have been made, the court will not grant a new trial. (See Winchelsea v. Wauchope, 3 Russell, 441; Gurney v. Langlands, 5 Barn. & Ald. 330.)
According to the well settled rules of law the court never sets aside a verdict because it is against the weight of evidence, un[521]*521less there is a clear and decided preponderance of evidence against the verdict. (Ward v. Center, 3 John. 271. Douglass v. Toucey, 2 Wend. 352, 356. Eaton v. Benton, 2 Hill, 578. Hammond v. Wadhams, 5 Mass. Rep. 353.)
Much of the evidence alledged to have been improperly admitted bore upon the issue of forgery alone. As the jury found that issue in favor of the defendants, it is not perceived how they were prejudiced by it. Both deeds were made at the same time, and are alledged to have been made by the same grantor, or to have been forged by the same defendant. On the trial of an issue as to the forgery of the one, evidence tending to show the forgery of either was admissible. The rule is the same in civil actions that prevails on the trial of indictments for forgery, where it is every day’s practice to receive evidence of the prisoner’s having uttered other forged notes of the same kind. (1 Phil. Ev. 179. Cowen Hill’s Notes, p. 464. Cary v. Hotailing, 1 Hill, 311. Olmsted v. The Same, Id. 317.)
The evidence that was excluded was immaterial to the issue which the jury found against the defendants. Had it been admitted the verdict would have been the same.
The general scope of the charge was certainly favorable to the defendants on the two first issues, and the verdict was in their favor. On the other issues the judge commented at large upon the evidence, and submitted it to the jury without any controlling direction. It is well settled that an exception cannot be taken to a mere commentary on the evidence. The jury listen to the remarks of the court upon the testimony, with the deference due to learning and experience, but with a perfect understanding that they must decide upon matters of fact according to their own convictions. It is only when the judge has plainly misled the jury as to the tendency and effect of the evidence, or has given them some erroneous rule for their guidance in matters of law, that the court is required to interfere and award a new trial. I perceive nothing essentially wrong in this part of the charge, or in the refusal to charge as requested. The general tone of the charge was fair, and not cal[522]*522culated to mislead. This will be manifest when we advert to some other features in the ease.
The chancellor, in his opinion delivered on awarding a second trial of the issues as to the deed to Mrs. Russell, of the homestead, observes that under the circumstances of this case, and the situation in which Mrs.
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By the Court. Willard, P. J.
I. The verdict of the jury on the first trial having been in favor of the defendants on all the issues, and the chancellor having refused to grant a new trial, so far as the deed to David Russell, of the Salem farm, is concerned, this court cannot regularly, while that order is in [519]*519force, entertain a motion to set aside that deed. Had the chancellor continued in office, he certainly would not have listened to a motion of this kind. On a proper state of facts, he might have permitted a rehearing, if the application for that purpose had been made in time. This court, having succeeded to the jurisdiction of- the late court of chancery, should not lightly and capriciously depart from the former practice. Whatever might be the power of the court over the verdict, and conceding that it can disregard the verdict and grant relief against the finding of the jury, it is believed no case can be found where it will disregard its own solemn decision made upon a full argument of the cause.
Although much of the evidence on the last trial would have been applicable to a trial of the issues as to both deeds, yet the last verdict had reference to the deed to Alida Russell, alone. The testimony taken on the trial of that issue does not lay the foundation for a motion to vacate another deed, upon the validity of which the jury have expressed no opinion. The question with respect to the validity of the deed to Mr. Russell, for the Salem farm, was disposed of by the chancellor, and it cannot be revived in this way, if it can he at all.
II. The motion of the defendants to declare both deeds valid cannot be granted. Even if both verdicts had been in favor of the defendants, they would not have been entitled, under the pleadings, to any affirmative relief. The dismissal of the bill with costs, is all they pray for in their answer, and is the highest relief that the practice of the court justifies. The effect indeed of such decree would indirectly affirm the validity of the deeds, and would probably be a bar to another action for the same premises, either at law or in equity.(a) It would require a very strong case to induce the court to disregard the verdict of a jury and grant a decree in opposition thereto.
III. The important question is whether there is a sufficient ground disclosed in the case to call for the interference of the court with the verdict for the plaintiffs on the last issue.
(a) This point was expressly decided by the court of appeals in Burhans v. Van Zandt, January term, 1853, after this opinion was written.
[520]*520The present controversy being between persons standing in" the same relation to the testator, the plaintiffs claiming under a will and the defendants under a deed from the same testator, alledged to have been made after the will, it is not controlled by the English practice by which they never bind the inheritance by a single verdict, on an issue devisavit vel non. With them the heir is the favored party, and the presumption is against any disposition of the estate which interferes with the regular course of descent. In the present case the law makes no presumption in favor of the grantee, over the devisee. The cause must therefore be determined by the evidence. The court is not bound to grant a new trial, because the verdict on the former trial was the other way. The result of the cause does not depend upon the number of successive verdicts which may be given.
As the object of a feigned issue is to satisfy the conscience of the court, a new trial should not be ordered if the trial has been fairly conducted, and the conclusion of the jury is the same as the court itself would have come to, upon the evidence in the cause. It is quite clear that in reviewing such a case, the court is not bound by the same rules that prevail on bills of exceptions In the latter case the object is to correct the errors of the judge at nisi prius in matters of law, which are prejudicial to the party excepting. Ho more of the testimony is set forth than is sufficient to show the materiality of the decision complained of. But in a motion for a new trial on a case, and especially when the object is to set aside a verdict on a feigned issue, the whole evidence is set forth at large. If the court can see, from the whole case, that no error has been committed by the presiding judge, either in admitting or excluding evidence, or in his charge to the jury, prejudicial to the complaining party, and if upon the whole case the verdict appears to be right, even though some erroneous decisions may have been made, the court will not grant a new trial. (See Winchelsea v. Wauchope, 3 Russell, 441; Gurney v. Langlands, 5 Barn. & Ald. 330.)
According to the well settled rules of law the court never sets aside a verdict because it is against the weight of evidence, un[521]*521less there is a clear and decided preponderance of evidence against the verdict. (Ward v. Center, 3 John. 271. Douglass v. Toucey, 2 Wend. 352, 356. Eaton v. Benton, 2 Hill, 578. Hammond v. Wadhams, 5 Mass. Rep. 353.)
Much of the evidence alledged to have been improperly admitted bore upon the issue of forgery alone. As the jury found that issue in favor of the defendants, it is not perceived how they were prejudiced by it. Both deeds were made at the same time, and are alledged to have been made by the same grantor, or to have been forged by the same defendant. On the trial of an issue as to the forgery of the one, evidence tending to show the forgery of either was admissible. The rule is the same in civil actions that prevails on the trial of indictments for forgery, where it is every day’s practice to receive evidence of the prisoner’s having uttered other forged notes of the same kind. (1 Phil. Ev. 179. Cowen Hill’s Notes, p. 464. Cary v. Hotailing, 1 Hill, 311. Olmsted v. The Same, Id. 317.)
The evidence that was excluded was immaterial to the issue which the jury found against the defendants. Had it been admitted the verdict would have been the same.
The general scope of the charge was certainly favorable to the defendants on the two first issues, and the verdict was in their favor. On the other issues the judge commented at large upon the evidence, and submitted it to the jury without any controlling direction. It is well settled that an exception cannot be taken to a mere commentary on the evidence. The jury listen to the remarks of the court upon the testimony, with the deference due to learning and experience, but with a perfect understanding that they must decide upon matters of fact according to their own convictions. It is only when the judge has plainly misled the jury as to the tendency and effect of the evidence, or has given them some erroneous rule for their guidance in matters of law, that the court is required to interfere and award a new trial. I perceive nothing essentially wrong in this part of the charge, or in the refusal to charge as requested. The general tone of the charge was fair, and not cal[522]*522culated to mislead. This will be manifest when we advert to some other features in the ease.
The chancellor, in his opinion delivered on awarding a second trial of the issues as to the deed to Mrs. Russell, of the homestead, observes that under the circumstances of this case, and the situation in which Mrs. Lansing then was, the defendants were bound to show how the shares of the estate were to be made equal among the several children of the deceased, by the giving of that deed, and the chancellor expressed the opinion that the old gentleman did not understand the nature of that deed. The facts bearing upon this question were fairly submitted by the judge to the jury, and they were told that if no explanation had been given in accordance with the decision of the chancellor, they should find for the defendants. We may infer from the verdict that the explanations were not satisfactory. Here in my judgment is the stress of this case.
The testator had in 1836 made his last will and testament, which was republished with a codicil in July, 1837. The apparent object of the will was to divide the one half of the income of his large estate equally among his children during their lives, and the body of the estate among his grandchildren per stirpes, for ever. He was at that time of sound mind and memory, and confessedly competent to dispose of his estate by will. The evidence discloses that the will was in conformity to his often expressed opinions, and that he subsequently declined to make any alterations in it. The deed to Mrs. Russell of the homestead, now in question, purports to have been made on the 30th of November, 1841. It deranges the whole plan of the will, even if it be true that the testator had erroneously charged to the share of Mrs. Russell the sum of ten thousand dollars. It purports on its face to be a gratuity; and to be made for the purpose of placing the grantee upon the footing of equality with the other children of the grantor. It is wholly in the hand-writing of Mr. Russell, the husband of the grantee, and purports to ‘be signed by the grantor with his mark, and was witnessed only by Wm. A. Russell, a son of the grantee, and grandson of the grantor. At the date of the instrument, the [523]*523grantor was in the ninetieth year of his age. He was partly deaf, and nearly blind. He was unable to cut up his food, or to dress himself, without help. He ate his food with his fingers when it was not fed to him by his attendants; and was led from room to room by them. He was afflicted with a cancer on his lip which at length ate into the inside of his cheek, and finally appeared on the outside, and occasioned his death. It was attended Ayith constant, and at times, excruciating pain; and his physician administered to him henbane or morphine in quantities sufficient to produce stupor, and as often as the plain ensued. He expired on the 28d of April, 1842. Until the year 1838 Mr. Lansing managed his large estate himself. In that year he placed all his papers and business concerns in the hands of his son-in-law, Mr. Alvord, with instructions how to dispose of the income of his estate. From that time he transacted no kind of business, unless advised by Mr. Alvord, and occasionally by his son Jacob.
The jury have indeed found that Mr. Lansing on the 30th of Uov. 1841, had sufficient capacity to make a deed, and that the deed in question Avas not a forgery. But the circumstances of the case are such that some further explanation may fairly be required of Mr. Bussell, besides the testimony of his son. The deed to Mrs. Bussell is in the nature of a testamentary instrument. It alters the testator’s Avill, in favor of the grantee, to the extent of the value of the homestead. Had this deed been a codicil, it could not have been upheld, without farther proof, even if the statute did not require more than a single Avitness. An instrument prepared by the husband of the devisee and witnessed only by his son could never be established as the will of a testator in the then condition of Mr. Lansing, Avithout proof of prior instructions, or evidence of some known and declared change of purpose in the testator, or some subsequent recognition of it by him. The presumption is alAvays strong against an act done by the agency of the party benefited. By the civil law such act was absolutely defeated. (Dig. lib. 34, tit. 8. "De eo quod quis sibi adscripsit in testamento.”) Our own law does not invalidate this act, [524]*524provided the intention can be fairly deduced from other circumstances. It calls, however, for more proof, than the proof of the fact of signing. The presumption is against the instrument. (Bee Billinghurst v. Vickers, 1 Phil. 187; Parke v. Ollat, 2 Id. 323; Barton v. Robbins, note to Fawcett v. Jones, 3 Phil. 456; Ingraham v. Wyatt, 1 Hagg. 382, 384; Dodge v. Murk, Id. 620; 2 Paige, 147.) Why were not the attendants of Mr. Lansing, one or both of them, called as witnesses to the deed? They were both in the house, and were better able to judge of his capacity than any other person. Why was not a disinterested scrivener employed to draw the deed and to superintend its execution ? The omission of these precautions casts suspicion over the transaction. We look in vain in the case for any satisfactory explanation of this departure from the course which ordinary prudence would have dictated.
Conceding that Mr. Lansing had sufficient capacity at that time by the aid of his friends to make a deed or a will, still it must be admitted that he was in a condition in.which he might easily have been made the victim of fraud or undue influence. He had arrived at an age when we are told “ all is labor and sorrow,” and when even “ the grasshopper is a burden.” His will could be more readily controlled, his fears excited and his free agency destroyed, than when in health. The acts of the aged, done in moments of helplessness and decrepitude, especially when conflicting with known opinions deliberately formed in health, should be watched with jealousy.
It was not necessary to impute either perjury or forgery to the witness William A. Russell. The surrounding circumstances called for some further evidence on the part of the defendants than that witness disclosed. These circumstances were sufficient, without explanation, to raise the presumption, either that the grantor did not understand the deed, or that he was induced to assent to it by undue influence. What passed between Mr. Russell and Mr. Lansing, before the witness came into the room, could not be known to him. An influence, therefore, may have been exerted of which he was ignorant.
But supposing the testimony of Wm. A. Russell covers the [525]*525whole case, the circumstances already alluded to, and others which will be noticed, are inconsistent with the hypothesis that the old gentleman understood the deed as a conveyance of the homestead to Mrs. Russell. If the transaction actually occurred as the witness relates it, why was it not announced to the other heirs, before the death of the testator, or at least at the time when the will was opened after the funeral ? Mrs. Russell was present at that time, and, according to the testimony of the witness, knew of the existence of the deed. Why did she not mention it then, or at least to her son-in-law Mr. Allen, with whom she returned to Salem ? Why did Mr. Russell settle with the estate for his share and keep the relatives in ignorance of a fact so important as the deed in question 1
These circumstances and numerous others made it a question for the jury, whether the deed was fairly obtained or not. It was for them to say, whether the presumptions against its validity were countervailed by the single oath of William A. Russell. They had a right, perhaps, to find either way. They found against the deed, and we cannot disturb their verdict as one against evidence, or even against the weight of evidence. Nor is the decision of the jury against the deed now in question inconsistent with that of the former jury and of the chancellor in upholding the deed to Mrs. Russell of the Salem farm. If the verdict had been adverse to the deed on the issues of incapacity or forgery, it is obvious that the same evidence which led to such result, must-have been alike-fatal to both deeds. If Mr. Lansing had not sufficient capacity to execute the one, he could not have executed the other, as both were made at the same time. If the one was a forgery the other was a forgery also. But in truth the two deeds rest for their support on different grounds. That of the Salem farm was an ordinary conveyance, and might be executed by Mr. Lansing, without disturbing the arrangements of his will. The idea of such a deed was by no means a novelty, for it had often been the subject of conversation between the parties. Although the evidence of the payment of the consideration by Mr. Russell is slight, yet there was some evidence upon which the jury might lawfully rest, and there were strong [526]*526probabilities in its favor. It was a common business affair. But with respect to the other deed, the presumptions are all the other way. It was unusual in its form, and complicated in its structure. It disturbed the harmony of the will. It was never recognized by the testator in any subsequent conversation, nor was its intended execution the subject of any previous remark by him. The recited motive for its execution has not been proved by any evidence out of the deed itself. And it is attended with all the circumstances of doubt and suspicion which have already been sufficiently dwelt upon.
[Franklin General Term,
July 5, 1852.
Willard, Hand and Cady, Justices. C. L. Allen, J. being related to some of the parties, took no part in the decision.]
On the whole, I think the motion to set aside the verdict and for a new trial on the last issue should be denied.
There must be a decree dismissing the bill as to the Salem farm, and setting aside the deed of the Lansingburgh homestead.
Neither party to have costs as against the other.