By the Court.
Lumpkin, J.
delivering the opinion.
The two points made upon the record in this case are,
1st. The rejection of the sayings of John L. Lewis, the uncle and guardian of the testator, and one of the principal legatees under the will.
2dly. The mis-direetion of the Court in its charge to the jury.
For as to the midnight communication overheard by Dr. [569]*569Lyon, in which the Lewises, the Philipses and the Pearces were the interlocutors, we do not think that it amounts to anything, as there is no proof that the conspiracy then and there coucocted, was ever executed. None of the persons therein implicated seem to have exerted any influence over the testator; on the contrary, John L. Lewis, as far as the testimony discloses, seems to have circumvented and defeated their plan. It may be, that owing to the defective manner in which the case is brought up, in conformity to the Act of the last Legislature, as counsel contends, but a misapprehension of it, as we hold, all the evidence is not before the Court, which might if here, show the applicability of this testimony. That is not the fault of this Court, nor of the Court below. If parties, to save a little expense and trouble, will “ simplify and curtail” until enough is not left to demonstrate affirmatively that the judgment below is erroneous, it must stand. It is presumed to be right until the contrary appears, and the onus is upon the plantiff in error.
[1.] Were the sayings of John L. Lewis, a principal legatee, and a real, though not a formal party to the record, admissible ?
We are called on for the first time to decide this question. It has become a settled rule of this Court, that the admissions of the propounder of the will, who is also a legatee for a large amount, may be proven. And this proposition is abundantly sustained by authority. But here the will is propounded for probate, by another. Can the sayings of a principal legatee be received in this issue ?
We think so, in all cases, so far as his own interest is to be affected. And the jury, upon sufficient proof, may strike out his legacy and establish the balance of the will, so that a will may be good as to one party, and bad as to another; valid as to some parts and invalid as to others, Trimlestown vs. D’Alton, 1 Wms. on Ex’ors, 43; 1 Dow. new series 85, decided in the House of Lords, on appeal from the Irish Chancery. Beyond this we cannot find sufficient authority to go.
[570]*570There is one reported case in Massachusetts, which goes to the extent of allowing the testimony to come in, so as to affect all who take under the will, 1 Pick. Rep. 192. But it is unsustained, and is considered irreconcilable with the general doctrine laid down, both there and elsewhere. Let a community of purpose or joint interest be first made out between all the legatees, and then the admission of one may bind the rest, not otherwise. It is said, that if the will was procured by fraud or undue influence, that the whole will must fail, and the innocent legatees suffer in common with the guilty. True, but how is the fraud or undue influence to be established ? By independent proof and not by acknowledgements of one of the parties. Take a stronger case. Here is a will coerced by the duress of A. A. and B. being both legatees. Is it allowable to prove the duress by the confessions of A. to the prejudice of B. ? Upon principle, we hold not. Phelps vs. Hartwell, 1 Mass. Rep. 71.
[2.] Now, any acts or declarations in connection with those acts, by John L. Lewis, in reference to the will, are competent evidence. His application to counsel to write a will for Philips, and what he said at the time, as well as what he did, can be testified to, even should the effect be to set aside*the whole will. This testimony stands upon a different footing.
[3.] The answer of Dr. Lyon, that “he thought” it was John L. Lewis, that told him so and so, is objectionable for uncertainty. He ought to be positive that it was John L. Lewis that made the statements to which he testifies. The repetition of mere oral statements is subject, at best, to much, mistake, and can only be satisfactory when deliberately made and precisely identified. It would seem therefore, that there ought to be no uncertainty as to the person who made them.
Our first impression was, to exclude the proof of the decree in chancery, and the sale under it, for irrelevancy; but, up[571]*571on further reflection, we concluded, that as it was a breach of trust, on the part of the guardian to obtain this decree, and sell the property under it, it might serve to show the strong motive he had to prpcure the will to be made for his indemnification.
[4.] We see no sufficient reason why the long dialogue which was held at sundry times and places between Lyon and Lewis should not the whole of it, be admissible. Lewis understood distincty what Lyon charged. He had an opportunity of speaking and denying it. It was calculated to call forth a reply from one so situated, and yet, to many things said, he was silent — others he answered. His passiveness must be construed into acquiescence as to the rest. Indeed he admitted the main facts, and justified himself upon the ground, that it was necessary to get the will made to disinherit the Phillipses. This was a feigned reason, and Lewis was too intelligent not to have known it.
[5.] We come now to the charge of the Court.
Respecting the sanity of the testator, the Court charged that, “ be the testator wise or unwise, yet he was capable of willing his property unless totally deprived of reason.” It is complained that the rule thus stated, as to the standard or measure of testamentary capacity, is wrong.
We are not prepared to say that even this language is too strong. The English Courts say upon this subject, “ Courts will not measure the degree of understanding, and say that a weak man, provided he is out of the reach of a commission, may not give as well as a wise man,” and case upon case can be cited which go to the extent of deciding that unless the failure of understanding be quite total, reaching to the testator’s forgetfulness of his immediate family and property, he is not disqualified from making a will. The weak have the same rights with the prudent and strong-minded, to dispose of their property; and if imbecility, and not a total absence or perversion of mind, should constitute inability to act, it is impossible to draw any clear line of demarcation — [572]*572one which would be practicably available. At the same time, I would add, that weakness of mind, which does not amount to testamentary incapacity, may be given in evidence, for the purpose of showing, that the testator might, for that reason, be more easily influenced by others. Nay, more, if it be made out by proof, that a dominion is acquired by any person over a mind of sufficient sanity, for general purposes, and of insufficient soundness and discretion to regulate his affairs in general, yet if such a dominion or influence were acquired over him, to prevent the exercise of such discretion, it would be equally inconsistent with the idea of a disposing mind, and would certainly destroy the will.
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By the Court.
Lumpkin, J.
delivering the opinion.
The two points made upon the record in this case are,
1st. The rejection of the sayings of John L. Lewis, the uncle and guardian of the testator, and one of the principal legatees under the will.
2dly. The mis-direetion of the Court in its charge to the jury.
For as to the midnight communication overheard by Dr. [569]*569Lyon, in which the Lewises, the Philipses and the Pearces were the interlocutors, we do not think that it amounts to anything, as there is no proof that the conspiracy then and there coucocted, was ever executed. None of the persons therein implicated seem to have exerted any influence over the testator; on the contrary, John L. Lewis, as far as the testimony discloses, seems to have circumvented and defeated their plan. It may be, that owing to the defective manner in which the case is brought up, in conformity to the Act of the last Legislature, as counsel contends, but a misapprehension of it, as we hold, all the evidence is not before the Court, which might if here, show the applicability of this testimony. That is not the fault of this Court, nor of the Court below. If parties, to save a little expense and trouble, will “ simplify and curtail” until enough is not left to demonstrate affirmatively that the judgment below is erroneous, it must stand. It is presumed to be right until the contrary appears, and the onus is upon the plantiff in error.
[1.] Were the sayings of John L. Lewis, a principal legatee, and a real, though not a formal party to the record, admissible ?
We are called on for the first time to decide this question. It has become a settled rule of this Court, that the admissions of the propounder of the will, who is also a legatee for a large amount, may be proven. And this proposition is abundantly sustained by authority. But here the will is propounded for probate, by another. Can the sayings of a principal legatee be received in this issue ?
We think so, in all cases, so far as his own interest is to be affected. And the jury, upon sufficient proof, may strike out his legacy and establish the balance of the will, so that a will may be good as to one party, and bad as to another; valid as to some parts and invalid as to others, Trimlestown vs. D’Alton, 1 Wms. on Ex’ors, 43; 1 Dow. new series 85, decided in the House of Lords, on appeal from the Irish Chancery. Beyond this we cannot find sufficient authority to go.
[570]*570There is one reported case in Massachusetts, which goes to the extent of allowing the testimony to come in, so as to affect all who take under the will, 1 Pick. Rep. 192. But it is unsustained, and is considered irreconcilable with the general doctrine laid down, both there and elsewhere. Let a community of purpose or joint interest be first made out between all the legatees, and then the admission of one may bind the rest, not otherwise. It is said, that if the will was procured by fraud or undue influence, that the whole will must fail, and the innocent legatees suffer in common with the guilty. True, but how is the fraud or undue influence to be established ? By independent proof and not by acknowledgements of one of the parties. Take a stronger case. Here is a will coerced by the duress of A. A. and B. being both legatees. Is it allowable to prove the duress by the confessions of A. to the prejudice of B. ? Upon principle, we hold not. Phelps vs. Hartwell, 1 Mass. Rep. 71.
[2.] Now, any acts or declarations in connection with those acts, by John L. Lewis, in reference to the will, are competent evidence. His application to counsel to write a will for Philips, and what he said at the time, as well as what he did, can be testified to, even should the effect be to set aside*the whole will. This testimony stands upon a different footing.
[3.] The answer of Dr. Lyon, that “he thought” it was John L. Lewis, that told him so and so, is objectionable for uncertainty. He ought to be positive that it was John L. Lewis that made the statements to which he testifies. The repetition of mere oral statements is subject, at best, to much, mistake, and can only be satisfactory when deliberately made and precisely identified. It would seem therefore, that there ought to be no uncertainty as to the person who made them.
Our first impression was, to exclude the proof of the decree in chancery, and the sale under it, for irrelevancy; but, up[571]*571on further reflection, we concluded, that as it was a breach of trust, on the part of the guardian to obtain this decree, and sell the property under it, it might serve to show the strong motive he had to prpcure the will to be made for his indemnification.
[4.] We see no sufficient reason why the long dialogue which was held at sundry times and places between Lyon and Lewis should not the whole of it, be admissible. Lewis understood distincty what Lyon charged. He had an opportunity of speaking and denying it. It was calculated to call forth a reply from one so situated, and yet, to many things said, he was silent — others he answered. His passiveness must be construed into acquiescence as to the rest. Indeed he admitted the main facts, and justified himself upon the ground, that it was necessary to get the will made to disinherit the Phillipses. This was a feigned reason, and Lewis was too intelligent not to have known it.
[5.] We come now to the charge of the Court.
Respecting the sanity of the testator, the Court charged that, “ be the testator wise or unwise, yet he was capable of willing his property unless totally deprived of reason.” It is complained that the rule thus stated, as to the standard or measure of testamentary capacity, is wrong.
We are not prepared to say that even this language is too strong. The English Courts say upon this subject, “ Courts will not measure the degree of understanding, and say that a weak man, provided he is out of the reach of a commission, may not give as well as a wise man,” and case upon case can be cited which go to the extent of deciding that unless the failure of understanding be quite total, reaching to the testator’s forgetfulness of his immediate family and property, he is not disqualified from making a will. The weak have the same rights with the prudent and strong-minded, to dispose of their property; and if imbecility, and not a total absence or perversion of mind, should constitute inability to act, it is impossible to draw any clear line of demarcation — [572]*572one which would be practicably available. At the same time, I would add, that weakness of mind, which does not amount to testamentary incapacity, may be given in evidence, for the purpose of showing, that the testator might, for that reason, be more easily influenced by others. Nay, more, if it be made out by proof, that a dominion is acquired by any person over a mind of sufficient sanity, for general purposes, and of insufficient soundness and discretion to regulate his affairs in general, yet if such a dominion or influence were acquired over him, to prevent the exercise of such discretion, it would be equally inconsistent with the idea of a disposing mind, and would certainly destroy the will.
The Courts, after all that has been said and written upon this subject, have shed but little additional light upon the old English rule. Their disquisitions have served to furnish materials for digests and treatises; still the rule is, if the testator be not lunatic, idiot or non compos mentis, he may make a will, so far as capacity is concerned.
The Court further instructed the jury, that as to the character of the influence, which would invalidate a will, that it must amount to “force and fear.” It is objected that this is too strong.
Upon this point also, no tangible distinction can be attained. The only test is, is the testator’s free agency destroyed? Does he cast a stealthy and timid glance at the party controling him, and seem to breathe freer in his absence ? Who has not seen the down trodden wife cower and tremble under the look of her lord ? One thus subjected to the dominion of another, should scarcely ever be allowed to make a will in their favor. But Mr. Williams uses the very words employed by Judge Wórrill, he says: “There must be proof that the act was obtained by force and coercion, by importunity which could not be resisted, that it was done merely for the sake of peace, that the motive was tantamount to force and fear.” 1 Wm’s on Exr. 39.
The only other point made upon the charge is, that the [573]*573Court instructed the jury that "if by acts of kindness, Lewis (the guardian,) procured the will to be made, that will not vitiate it. If he provided him with horses, money, jewelry, and fine clothes, with a view to procure the testator to make a will in his favor, that will not amount to such undue influence as to vacate, the will.”
Perhaps of itself it would not. Certainly it would not, as between persons occupying a different relation toward each other, than that of guardian and ward; and not necessarily perhaps even in that case, provided the indulgence shown to the ward was such as was justifiable, considering his estate and condition in life. But it will never do, for this or any other Court, to endorse the doctrine that a guardian may squander the property of his ward, in procuring for him injurious indulgences, and that for the purpose of inducing the ward to give him his property. Whether the articles referred to in the charge were suitable for the ward, we cannot say. A young man at his age and of his fortune is, in my opinion, entitled to wear a gold watch, to have fine clothes, to keep his gun and dog; and I would say his horse and buggy, especially considering that he was an invalid. The proof in the record is silent as to the extent of this expenditure, some allusion is made to it by the testator himself, in the second item of his will, in which he says :
"I have received money and property from my guardian, John L. Lewis, for which he has no receipt. It is my will and desire, that my executors do allow him a credit for ten thousand dollars, without requiring any vouchers from him; and also, that they allow him credit for his account for any money paid out for clothes, board, education and traveling expenses, horses and other things for me, on his making affidavit to the same. And also, to give him credit for any receipts which have not already been exhibited and allowed by the Court., and to allow him commissions on all, as if the same had been passed by the Court of Ordinary,” &c.
We must think the charge upon this point, without qual[574]*574ification or explanation was too broad: the influence of a husband over his wife, who has a separate estate to dispose of by will, an attorney over his client, and a guardian over his ward, are all looked upon with the same suspicion and disfavor by the Courts.
In Huguenin vs. Baseley, 14 Ves. 273, The first head note is “voluntary settlement by a widow upon a Clergyman and his family set aside, as obtained by undue influence and abused confidence in the defendant, as an agent undertaking the management of her affairs, upon the principles of public policy and utility, applicable to the relation of guardian and ward.'’
So, Sir Samuel Romily, and the eminent counsel, who argued that case, contended that the authorities against permitting a transaction of bounty, to take effect between persons standing in certain relations are numerous, and that amongst those relations, that of guardian and ward is not for this purpose confined to persons so related in a strict sense, asunder an appointment of guardian by will or by order of the Court, but that the rule included any person placing himself in that situation. Ib 279, 280.
Thus it will be perceived, that the abuse of influence growing out of the relation of guardian and ward, is put uniformly as requiring more watchfulness than any other, and any gift from the ward to the guardian, will be more thoroughly scrutinized and sifted than any other.
The case of Pierce vs. Waring, cited in Gray against Mansfield. 1 Ves. Sen. 379, is a striking illustration of this doctrine, Waring was guardian of a Mr. Hall, who lived with him, had horses, dogs, &c., kept by him ; Hall’s visitors were all entertained at Waring’s own house, when Hall stood candidate for Ludlow. After coming of age, Hall made Waring a gift of ¿£3000 East India stock, for his many kindnesses and services. Hall was satisfied with the gift and did not dispute it, but his representatives after his death brought a bill to set it side. There was no' proof of imposition, the only circum[575]*575stance was by conjecture, as if Hall did not know what the stock was worth. The Lord Chancellor, November 13,1745, set it aside, upon the general principle, not upon the not knowing that it was worth more, but that it was a consideration for which he would be allowed nothing in that Court; that it was a dangerous example, and he would not endorse a gift to be obtained on these circumstances after the coming of age.
Similar exampl§s could be adduced to an indefinite extent. But it is insisted that this doctrine applies to deeds, and not to wills. Wherefore? Why to the. one more than the .other ? These adjudications are put upon the ground of public policy. Is there any difference in this respect between deeds and wills ? In Waring’s case, Lord Hardwick said, “ Waring had been concerned as guardian, and as soon as the infant came of age, made up the account and retained that gratuity to himself, the same influence of the guardian continuing, being done when his effects were tobe delivered over.’ 2 Ves. Sen. 260. Was not this influence existing much more potentially, while the ward of Lewis, was still a minor, and the relation of guardian still subsisted ? Will a deed made even after the ward has come of age be set aside, and a will made during the infancy, not be questioned ? Counsel have submitted no authority to justify any such distinction. I have met with none. On the contrary, in Ingram vs. Wyatt, 3 English Ecc. Rep. 167, I find these very cases, which I have cited, and others quoted by Sir. John Nicholl, to show in cases of wills with what particular jealousy and anxiety, Courts will guard all persons occupying these fiduciary relations, from the abuse of that influence which must necessarily result from it. That an infant of fourteen years and upwards is capable of disposing of his personal estate by will, is a well settled doctrine of the common law. Testaments of this sort are rare however, not because it seldom happens that minors have property to dispose of, but because they are generally willing that the wise disposal of the law should take [576]*576its course, and the feeling of the country is against it. Still, if one chooses to exercise this right, he is entitled to do so. I do insist however, that considering the want of discretion in minors, which may appear from the disposition actually made of their effects, as well as from other circumstances, the Court should exercise great caution in seeing to it, that all is right, especially when the estate has been diverted from the channels, which the law has established. In such a case, the law will be still more jealous to protect the unwary against undue control, especially where a relation of confidence like that of parent and child, husband and wife, client and attorney, guardian and ward, exists.
Judgment reversed.