Judge Ewing
delivered the following as the Opinion — Judge Marshall concurring, and stating some additional reasons for the decision: the Chief Justice dissenting.
William Singleton, James Brown and Wife — the former being the son, and the latter the daughter of Jecomas Singleton, deceased, filed their bill, to set aside and annul a paper purporting to be his last will and testament, which had been previously recorded in the-County Court of Woodford, making John, Elijah and Lewis, sons and principal devisees and executors of the-will, defendants, also a grand daughter.
They charge that said paper had been signed, sealed and executed, in due and proper form, by the testator; but that he was of insane mind and memory, at and before it was published, and was laboring under an unfounded prejudice against, and insane aversion to, his son William; and that the pretended will was produced by the undue and controlling influence of the principal devisees, the defendants.
The three sons, the defendants, answer the bill — denying its allegations; and the facts averred in the bill, [316]*316and denied in the answer, were set down to be tried by a jury.
The Validity of a will was contested by a bill in ch’y, which — admitting that the will was executed in due form-— alleged that the testator was insane — his mind affected with an insane aversion to, and prejudice against,one of his sons, when the will was made; and that he was induced to malee it, as it was, by the fraud and undue influence of the principal devisees. These allegations,the answers deny. The issue, to be tried by a jury (under the statute, S. L. 1543,1 “whether the writing produced be the will of the testator or not’ ’ — should be so framed as to present the question,whether the allegations of in.sanity, fraud &c. are true or not; and the onusprobandi being upon the comp’is, their counsel have the right to open and conclude the argument to the ju-
A struggle took place between the parties, before the Circuit Court, as to the form of the issue to be made, the object of which, on each side, was to obtain the opening and conclusion of the argument.
The statute does not prescribe the form of issue to be made up. But its object was evidently to submit to a jury for trial, those matters of fact in relation to the validity of the will, which were in contest between the parties, and not those matters about which they agreed. That which is conceded on both sides, could never be the subject of an issue, which is an affirmation on the one side, and a denial on the other.
The complainants in this case conceded in their bill, that the paper purporting to be a will, had been duly made and executed, in legal form, but averred that the testator, when it was made and before, was insane, and laboring under an insane aversion to his son, and was prevailed on to make it, by the fraud and undue influence of the defendants or some of them. The defendants admitted its execution in due form of law, and denied the insanity, insane aversion, and fraud and influence charged.
The execution of the will was admitted on both sides; of course, no issue need be formed about that. The only matters in controversy between the parties, and about which they were at issue, were the incompetency of the testator, and the fraud and influence of the defendants, or some of them. And the issue should have been so formed as to bring before the jury for trial those matters only. It was so formed, and we can pei’ceive no error in the decisions of the Circuit Court, upon the various pleas and replications, the object and tendency of which were to require of the defendants to take issue only upon the matters contested by the complainants.
The burthen of proof to sustain the matters averred in the issue, necessarily devolved on the complainants. The due execution of the paper claimed as a will being admitted, it needed no proof to establish it. And as all persons are presumed to be sane until the contrary is [317]*317shown, it devolved on the complainants to make out, by proof, the insanity or undue influence alleged. And if they failed to do so, the will must have been sustained. As the burthen of proof rested upon them, they had the right to open and conclude the argument before the 3U1T-
One of several defts. discharged their counsel, so far as they represented him, m order that he might personally cross examine a witness; but the interests of all the defts. were identical; the counsel continued to represent the others — else he would not have discharged them, as he admitted, &they did notexonerate him from liability for their fees. The circuit court refused to allow the party the privilege he claimed; & this court— conceiving that the proceeding was a mere manrauvre to evade a rule of court — approves that decision.— The fact that the party was not injured by it, (as he had the full benefit of a thorough cross examination) is another reason for sustaining it.
It is next contended, and assigned for error, that the Circuit Court erred, in not permitting one of the defendants to cross examine his mother, a witness introduced by the complainants.
It appeared, that he had, in conjunction with the other defendants, employed counsel, who were present in Court, attending to the case; that, with a view to obtain the privilege of cross-examining his mother, he had, in form, discharged his counsel, but admitted that he would not have done so, but for the consideration and conviction that his interest was so intimately and inseperably connected with his co-defendants, that, in defending their interest, they would necessarily defend his, and that the counsel still held the joint contract of them all, for their fee, and determined to hold him responsible upon it; and did cross-examine the witness, and continue to attend to the case throughout.
It is evident that, the pretended discharge of his counsel was a mere stratagem, on the part of the defendant, to evade the rule and practice of the Court, requiring the examination of witnesses to be conducted through their counsel. And if so, the Court acted right, in not permitting itself to be trifled with by such a trick.
Besides: it does not appear, and cannot be presumed, that he has been prejudiced by the action of the Court in this matter.
The counsel continued the examination, and it is not to be presumed that their cross examination was less full and complete, than if the defendant had been permitted to make it, or that the truth has not been as fully elicited; and he was as much benefited by the examination, as if he had not in form discharged his counsel. Nor can we say that the ends of justice have not been as fully attained. But we have grounds to believe that much time has been saved, j udging from the irrelevant [318]*318questions propounded by this defendant, to his mother, in her cross examination in the country, where her deposition de bene esse was taken in this cause.
Instructions, upon an issue in ch. to try the validity of a will— that the paper produced is prima facie a valid will; & that ‘the burden of proof rests upon the compts. to show that, at the time of its execution, the the testator was of insane mind and memory, or that he signed, executed & published the same, under the' influence of an insane and unfounded aversion to his son-, one of the pltfs. or that it was pro cured to be executed & published by the fraud, undue influence and importunity of the defts., or some of them’- - presents a correct exposition of the law: there was no error, in refusing to instruct the jury that the facts relied on by the complainants to destroy the will, must be made out “by the clearest and most satisfactory proof:” such as would satisfy the minds of the jury, was all that the law required.
It is also contended that, the Circuit Court erred in refusing an instruction asked by the defendants, and in giving those asked by the plaintiffs.
The instruction offered by the defendants, and rejected by the Court, in substance, directed- the jury that it was incumbent on the plaintiffs to establish the insanity, insane aversion, or undue influence y the clearest and most satisfactory proofs.” Instead of which, the Court gave to the jury, at the instance of the defendants, the following instruction, to wit:—
“ That the paper marked B, and referred to in the issue in this cause, as the will, is prima facie evidence that it is. the true'; lawful and valid will of Jeconias Singleton, deceased; and that, under the issue which the jury are .to try, the burthen of proof rests upon the complainants to show-that, at.the time of its execution, the said Jeconias was of insane mind and memory, or that he signed, executed and published the same, under the influence of an insane and unfounded aversion to his son William, one of the plaintiffs, or that it was procured to be executed and published by the fraud, undue influence and importunity of the defendants,, or some of them.”
This instruction gave to the jury a correct exposition of the law, ;as to the proof to be made, as well as upon whom it was incumbent, and so clearly as to enable them distinctly to understand their duty. And we cannot say that the Court has erred in excluding from the instruction, the superlative expletives, the clearest and most satisfactory proofs.” If the facts aré made out by proof to their satisfaction, it is all the law requires.
And the introduction of those words may have produced an impression upon- their- minds, that a superior quality or grade of evidence, not at all attainable, was requisite to authorize them to find those matters. At least, we are not prepared to say that the Court erred to the prejudice of the defendants, by refusing to adopt them, in his exposition of the law to the jury.
The validity of a will would not be affected by the mere fact, that it was obtained by the importunity of devisees; and therefore, an instruction that if the jury believed it was “obtained by the fraud, undue influence or importunity of the defts. they must find for the pltfs.” were erroneous. — But correct instructions having been also given, viz. ‘that, unless the will was obtained by undue influence and importunity&c.they must find for the defts.’ and it was not likely that the jury were misled by the slip in the one instruction— it is held not to be sufficient to set the verdict aside.
A verdict upon an issue in chancery, made up,in obedience to the statute of wills, to try “whether a writing produced, be the will of the testator or not, which shall be tried by a jury, whose verdict shall be final between the parties, saving to the court a power of granting a new trial for good cause,as in other trials” (S. Law, 1543,) is not like an ordinary verdict upon an issue in a chancery cause, — --which must satisfy the conscience of the chancellor, or be disregarded; but is like a verdict in a common law action, and can only be set aside on grounds that would be fatal to a common law verdict. And—
[319]*319There is an inaccuracy in the latter part of one of the instructions given at the instance of the plaintiffs, in the use of the word “or,” instead of and, by which the Courtis made to inform the jury, that if they believed from the evidence, that the will “ was procured to be-made, by the fraud, undue influence, or importunity, of the defendants, they should find for the plaintiffs.”
It may be, that the word “ or” has been substituted in the place of and in the copy, as was done in another part of this instruction, as was shown at the hearing, by the production of the original. But taking the copy as true, we were at first made to doubt, whether the error was not fatal to the instruction.
For we are not prepared to admit that importunity alone, disconnected with fraud or under influence, would be sufficient ground to set aside a will.
But taking the whole instruction together, and applying it to the proof, we can scarcely belive that the jury could have been misled by it, or that they would have even noticed the critical inaccuracy, or the difference in the foi'ce of the instruction, by the use of the disjunctive instead of the copulative conjunction, in the place where it was used. And we are the more inclined to this conclusion, as it was not noticed even by the astute counsel for the defendants in this case.
But the Court is relieved from any difficulty on this point, by recurring to the foregoing instruction, granted at the instance of the defendants. By it, the jury were in substance instructed upon this same matter, in issue between the parties, that they could not find for the plaintiffs, unless it was established, to their satisfaction, that the “will was procured to be executed and published by the fraud, undue influence and importunity of the defendants, or some of them.” If the instruction given at the instance of the plaintiffs, was critically incorrect, its force and effect were neutralized by the instruction given at the instance of the defendants, upon the same point.
The jury having found the issue for the plaintiffs, the question arises — what is the effect to be given to their verdict by the Court? Is their finding to have the force [320]*320and effect of a common law verdict, and to be set aside only for the same causes, by the Court? or, the force and effect only of a verdict found upon an ordinary issue out of chancery, directed by the Chancellor, to enlighten his conscience, and which may be set aside at his will and pleasure, or be wholly disregarded in making his decree?
In a common law ease, anew trial will not be granted on the ground that the verdict is contrary to the evidence, unless it is palpably so. And—
Where the court below has refused a new trial moved on the ground of verdict against evidence — the error must be flagrant, to induce a reversal by the Court "of Appeals — whose ed,in such cases, with great caution and circumspection.
[320]*320We are satisfied it should have the force and effect of a common law verdict, and can be set aside by the Court for the same causes only.
The statute directs, when the validity of a will shall be contested by bill in chancery, that “an issue shall be made up whether.the writing produced be the will of the testator or not, which shall be tried by a jury, whose verdict shall be jinal between the parties, saving to the Court, the power of granting a new trial for good cause, as in other trialsThe law makes it imperative upon the Chancellor to submit the issue of facts to a jury. By law the power is given to them to try it, and their verdict is as binding and conclusive', as their verdict would be upon any issue of facts, the trial of which is confided to them by the principles of the common law.
Limiting the power of- the Chancellor by this rule, can this verdict be set aside, and a new trial granted?
Except those already disposed of, claimed to be errors in the action of the Court, no other cause is "alleged, but that the verdict is “against law and evidence:” which may be restricted to the- single objection that, it is against evidence, as there is.no ground for saying that it is against law, if it be found not to be against evidence.
It has been frequently settled by this Court, that a new trial ought not to be granted on the ground that the verdict is against evidence, unless it is palpably so. 3 Bibb, 313, Weisiger vs. Graham &c; 3 Marsh. 397; 1 J. J. Marsh, 6; 2 J. J. Marsh, 310, and sparsim in the Reports.
Again: that when the Court below has refused a new trial, moved on the ground that the verdict was against evidence, the error ought to be jlagrant to induce this Court to reverse the judgment. 2 Bibb, 64, Porter vs. Langhorn, and Maxwell vs. McIlvoy, 211; 1 Bibb, 214, [321]*321McKinney vs. McConnel; 3 Lit. R. 14, 169, 189; 1 Mon. 111, 262.
insanity not always did not exist S* á particular penod, is often a perfeplexing question question for courts and juries.
Certain symptoms or indication of insanity or monomania described.
Again: after a verdict has passed the ordeal of the lower Court, this Court should exercise its power over the subject with great caution and circumspection. The evidence is generally deiectively presented to this Court, In such a case, the Court should make every rational inference against the party moving it, as if he had demurred to the evidence. 1 Bibb, 303; 3 Lit. R. 169.
In the foregoing views the whole Court concurs.
Limiting the powers of the Court by the foregoing rules, can this Court grant a new trial against the opinion of the Circuit Court, on the ground only that the verdict is against evidence, upon the facts exhibited in this record? The majority of the Court — the Chief Justice dissenting — think we cannot.
We cannot say from the'facts proven, that the jury, in the exercise of their legitimate power of making their own rational deductions from them, were not warranted in coming to the conclusion that, one or more of the three distinct specifications in the complainants’ replication, had been sustained.
It is often difficult for a jury or court to come to a satisfactory conclusion, on the delicate subject of insanity, as it is difficult to fathom the human mind. But many authorities concur in the conclusion, that where there is delusion there is insanity. That is, when things are believed to exist which have no existence in fact, or in the degree imagined, and of the non-existence of which, no argument or proof can convince the mind at that time and to that extent is insane. And this delusion may exist on one or more subjects, when the mind is rational, or seems to be so, upon all others. This delusion is frequently accompanied with other indicia of unsoundness, which may be found in rational persons, as violent passions, keen suspicion, jealousy, exaggeration, incon-sistency, eccentricity, a hasty sensibility, to imagined wrongs, and a versatility in the objects of hatred or affection: the existence of which, as they are the common concomitants of delusion, strengthens and sustains the proof as to the existence of delusion. It is not un[322]*322frequent, nay quite common, with the shattered mind, to hate with the most relentless hatred, and without any sufficient cause, the objects of its former peculiar affection and special regard; and in this particular to run counter to those natural feelings which are common characteristics of our nature.
Summary of the Siou of a majority of the Judges that the july might reason a the haooMluseion was oF unsound mina, or was in-the will as it was, fluence aftern the them and Thatf the jury having ever sustained the circuit court— this court ought .not to disturb it.
Without attempting to enter into a critical analysis of testimony, it must be conceded as proven, that the decedent, at times labored under extraordinary delusions for years before the will was made, that he imagined at times, that persons were in pursuit of him to kill him; at others, that they were about to take him to the lunatic asylum; that he was ruined, and his whole family were ruined. And under the paroxysms of frenzy he would sometimes spring from his bed, seize his gun, and escape ^rom h's house in his night clothes; at others, he would come riding home, rapidly, exclaiming that they were after him, to kill him, and making other similar demonstrations of delusion. It is true, it is proven that he drank hard at times; and it may be that those fits of excessive delusion may have been caused by intoxication, but the proof is not satisfactory that they were; and they seem at least to have extended beyond the periods of intoxication. It is also proven that a very sudden, extraordinary and unnatural change took place in his feelings towards his youngest son, who had remained with him until after he was thirty years of age, attending to his business, and who had always before been his favorite child; and that this change took place upon an alleged ground, which, on the proof in this case, may have been imaginary; and which, if real, would not be deemed sufficient by the well regulated mind. He made efforts to procure his son’s expulsion from the church, and drove him from his house, ordering him never to return, and refused his mother permission to visit him, and never made friends with him.
There is also proof tending strongly to show, that the defendants, or some of them, operated upon his excited or disordered mind, by their conduct and conversations, to keep alive his inveterate feelings against his son, and to make the impression that he ought not to make William [323]*323and Mrs. Brown equal with them, in the division of his estate.
And when efforts were made by strangers, for permission to William to come and see him, and to make friends with him, when seeming to yield to the proposition, his mind would suddenly recur to the defendants, and the necessity of seeing or sending for them. From which it might be inferred that he deemed it essential to consult them on the subject, as a preliminary step to a reconciliation with his discarded son, and if so, would imply strongly the influence which they exercised over him on that subject.
These facts and many others are proved, mainly by the wife of the decedent (an aged matron, the simplicity and candour of whose detail, carries with it intrinsic evidence of its truth,) and by others among the most intimate friends and acquaintances of the decedent; and some of them speak of him in general terms, as having been of unsound mind, for some ten or more years be-fore the will was made, continuing up to the time and. after it was made; and it is proved that, one of the defendants acknowledged his incompetency to make a. will.
On the other side, there are many witnesses who had. known him for many years, and who speak of him as. a, prudent, discreet and managing man, and say that they had never noticed the slightest symptoms of insanity; some of these, as well as the complainants’-’witnesses,, speak of him as a violent, passionate and eccentric man; and it is easy to see that an undue control might be obtained over such a man, if he were not actually insane..
The draftsman of the will speaks of him, as having displayed great caution, care and deliberation, as well as mind and intelligence, in giving the details of the various devises embraced in the will.
But it may be remarked that the witnesses generally, who deposed for the defendants, had not the same opportunities afforded them, as the complainants’ witnesses, to arrive at a true knowledge of his condition. They were, for the most part, mere general acquaintances, who met with him occasionally. The facts depos[324]*324ed to by the complainants’ witnesses, may be true, and not at all inconsistent with the facts or opinions proven by the defendants’ witnesses. For it may be remarked, that lunacy may exist and escape not only the observation of the casual observer, but his strictest scrutiny. And instances have occurred, in cases of settled lunacy, that art, stratagem and cunning have been displayed in a most extraordinary degree, in the accomplishment of a favorite .object.
Lunacy apt to escape the notice of the casual observer. Lunatics sometimes display a remarkable degree of pen etration and sagacity — eminently calculated to deceive the most acute observer.
And it may be, in the case before us, that his purpose being fixed to disinherit his son and daughter, operated upon by the influence of the defendants, he assumed a deliberation, and calm and apparently settled purpose, with a view to the accomplishment of his object, by which the draftsman and intended witness to the wflll, might well be deceived. And if he was acting under the influence of the defendants, his leaving at different times, in the progress of its execution, as difficulties with respect to different devises presented themselves, and returning again at the end of a few days, may have been to consult them on the subject, and to obtain their views in relation to the difficulties.
Be this as it may, it appears that he declared to the draftsman of the will, by way of removing the astonishment, expressed by his countenance at the exclusion of William, that “never was a father treated so badly by a son; that he had seen him lying in his fence corners, with his gun, to shoot him, and that he was afraid to go about his farm.” But although there seems to have been a single occasion, when under the influence of his excited feelings and imagination, he may have supposed that William was pointing a gun at him, for the purpose of shooting him, yet there seems to have been so little foundation for the apprehension expressed, and its existence, as indicated by this statement to the draftsman of the will, connects itself so readily with the gross delusions of the sane mind, which have been before mentioned, that we cannot say that the jury were not at liberty to regard this statement of the decedent, as some evidence, that he was laboi'ing under a most serious de[325]*325lusion with regard to his son William, at the very moment of making the will.
Since writing the foregoing part of this opinion, in which a majority of the Court concurs, having seen a statement of a portion of the evidence, and the conclusion to which the Chief Justice has arrived upon the whole case, it is deemed proper to give, more at large, some of the evidence against the validity of the will, and upon which the majority of the Court have based their conclusion.
.Ben Taylor, the nephew of the decedent, who lived near the decedent, and was upon terms of the utmost intimacy with him and the family, frequently paying and receiving visits from each other, and who, it must be admitted, is a man of intelligence, discrimination and judgment, says that he did not regard him in his right mind for many years before the will was made. He states “that he applied to him frequently, to write his will. He never refused to write it, but was unwilling to do so, from a belief that he would make an unjust will; that from his knowledge of the decedent’s “ temperament of mind,” his high temper, and his great aversion to each of his sons at times, and other causes detailed by him, “ he did not think that he was of proper disposing mind.” He states that, “ the intercourse of Will with his father was that of a most dutiful and faithful son, for thirty years, attending faithfully to his business, and always manifesting the deepest interest in his affairs,” until after he was expelled from his house. Again: he states “ that from the unnatural feelings, manifested by Colonel Singleton towards his family, and particularly his sons, he came to the conclusion that he was laboring under alienation of mind.'” That this unnatural feeling would sometimes fall on one son, and then on another, but eventually settled on William, and continued till his death. He also states that, Colonel Singleton would often invite himself to the houses of his relations to dine, and would suddenly, when dinner was on the eve of be[326]*326ing ready, take some freak, ox'der his wife, and break off and go home, without any apparent reason. He speaks °f him as a man of ungovernable passions, gloomy apprehensions and keen suspicions, and fears about dangers that no well regulated mind would entertain.
Mr. Blackbunx, the pastor of the church in which the decedent was a member, and who was particularly intimate with him, gives the circumstances that occuri'ed in the church, and various other facts indicating unsoundness of mind. He says that he took part against William, to procure his expulsion from the church, and was passionate, vehement and unnatural in his conduct to William, and flew into a violent rage because the church would not hear the evidence of a slave against him; and though he and others made every effort to reconcile him, they could do nothing with him. William behaved humbly and respectfully to his father, and to gratify him, withdrew from the church. He was ordered by his father never to set his foot on his place again. And whenevex-, afterwards, the name of William was mentioned, which happened on various occasions, up to his death, he would fly into a violent and ungovernable rage, and act like a madman. He states that the sole gx’ound of complaint against William, and that for which he px-osecuted him in the church, was that he had been guilty of sexual intercourse with one of his negro girls; which William always solemnly denied, and which his mother and others believed there was no foundation for; and the only proof, as alleged by him, was that he was told so by one of his negro women, whose husband William had forbid to come on the place, on account of some chai’ge of poisoning; after which, the decedent stated he had watched William, for .some time, and saw the “girl hand him some water at the spring,” and was forthwith confirmed in his opinion of his guilt, and commenced his perse-' cution of him.
This witness states, from his unnatural, wild and frantic conduct towards his son, and other circumstances detailed, he came to the conclusion that he, though apparently rational upon some subjects, was upon others insane, and particularly towai’ds his son William. The facts [327]*327detailed by this witness, though possibly they might have taken place with a rational mind, are unnatural, unusual and extraordinary, and certainly tend, in no slight degree, to the conclusion, that his mind was diseased, and that he labored under an insane aversion to his son.
Mrs. Singleton, wife of the decedent, states that Colonel Singleton would often “imagine that things existed “which no other person would. He would oftentimes “ come into the house, and ask the witness if she did not “ think he was deranged. He would jump up out of his “ bed at night, and say that some person was there, and “ wanted to kill him. He got out of his bed-at night, “ and would go out in his night clothes, with his gun, “late in the night, and say that some person was there «to kill him. He would do this in very cold weather, “and in warm: it made no difference. He never said “ who it was that wanted to kill him. He would sometimes say, that he saw two of his sons, sometimes one, “ that wanted to kill him. All this happened before and “ after the will was made, and about the time it was “ making. After Will had been ordered off by his father, he came to the house with a man by the name of “Morton, and met his father, and offered him his hand, “ and the old man raised his cane on Will as if he would “strike him, and said to the witness, “did you see the “assurance of William?” and appeared to be in a great “ rage. The old man would sometimes, at night, call up “all his hands, and set them to work, pulling hemp, and “ would immediately call them off, and set them to doing “something else, foolishly. He would sometimes get “ his horse and ride out to the farm, and would in a short “time come home, riding very fast, saying that they “were after him, to 1'dll him; and would often say that “they were coming to take him to the Lexington Asy“lum, and would beg the witness to let him stay with “ her, and not to be taken to Lexington. He seemed to “ think that some person was there to take him off or “ kill him, and she tried to persuade him out of it, but “could not do it. This all took place before and after “the will was made. He would sometimes say that, he [328]*328« believed Will was guilty, and then that he thought he “ was not. His conduct was very different in the fore “part of his life. Any little thing would put him in a “ violent rage and passion. His sons had a very great influ- “ ence over him. The boys, when they came to see us, “would ask if Will had quit drinking yet, and that the “ old man had better give his property to them — they had “ families and children, and Will had none. She heard “the old man say, when he purchased the Blanton place, “he intended it for Will, and that it was not to be con- “ sidered part of his estate, and that Will’s work and “labor went to pay for it. Previous to the charge “against Will with Harriet, the old man liked Will “better than any of his sons; he was his favorite child, “ and youngest son. She heard the old man say that the “ boys said, that he ought not to give Will and Brown much of his property. She heard John Singleton say, in the “presence and hearing of the old man, when he was ly- “ ing on his settee, do you see the striking likeness of Har“net’s child to Will; the old man said — Oh Jonny, Jonny. “She frequently heard such things pass. After the old “man’s death, John brought the will home, and asked “the witness if she did not wish to hear it read: she “said she did; and when he read that part which said “ that he was of sound and disposing mind, but weak of “body, the witness said, now John, don’t you know, “that is not so, that the old man was not in his right “ mind; John replied, ‘ yes, I do know that he has not been in “ his right mind for four or five years past, and was not able to make a will.’ “ Lewis has said to me that Wil“liam should not have any more of his father's estate." It is true she states “that he drank amazing hard at times; “ but he acted like he was deranged and badly, when he “ was not drinking, and when there was no liquor about “the house.” And no other witness speaks of his strange and unnatural conduct and violent paroxysms being ascribable to drink, or that he was at all intoxicated at the time. She also stated that, “ for the'last two or three “ years of his life, he did not attend much to his business, “tie was sometimes in his mind, and would talk as well “as any person; but at other times would be very flighty. [329]*329“ He would sometimes get his book, and read very loud, “ then very fast, then would mock the preacher’s way of “ reading and singing; and had not, for a number of years, “ been able to arrange his papers, and could not write a “note, and would call on Eliza Jane, to help him, and “ would forget what she had said, and call her back again, “ to tell him what to write. He did not at all times believe that Harriet’s child was Billy’s. She, the wit“ness, did not believe it was.”
Mr. Hedger, a witness, “had known him for thirty “years, had done carpenter’s work for him, was in the “habit of seeing him often in 1834 and since; and from “ his knowledge of him, he was of opinion he was de- “ ranged; and details facts upon which his opinion is “ founded.”
Mr. Jessee “knew Colonel Singleton for many years, “ and from his knowledge of him, did look upon.him as a “ madman in relation to his son William.”
“Before the church committee, he said that he had “been watching Will for six months, and looking out of “the, window one morning, he had seen the girl hand “ Will a drink of water, and that was all he know of his “guilt. William offered to go down upon his knees and “beg his father’s pardon, if he would forgive him; the “ old man said he would forgive him, if he would leave “ his house, and never set foot on his place again. The “witness, after the separation, told the old man that “ Will wished to become reconciled to him. When it “was named, he immediately went into a violent rage, “stamping and throwing his arms about. He said to the “witness that he did not believe that Will was guilty, but “ that it was a trick of old Daniel’s. He further states, “that it is his opinion, that no man in his proper senses “ would have acted towards his son as he did towards “ William, whether the charge was true or false.”
Mr. Christopher states, “ he was a neighbor of the old “man, and sometime in the forepart of 1825, started to “his house, and met him in the road. He was in a singular way, riding first on one side of the road and then “ the other; he did not know me at first, but after I “hailed him, he turned and said,JDavy I am ruined; when [330]*330“ did you see Billy? I told him I had seen him that “ morning; he then said he was a ruined man. He asked ‘‘again when I had seen Billy; I told him, and he re- “ peated — I am a ruined man; and said he could not “sleep, and could not do any thing; became enraged, “scratched his head, cried like a child, and said they would « ruin him; that they had made him do something that would ‘‘ruin him. I asked, what? who had? He said I would “ tell, and they would kill him. I asked him if Billy had “ done any thing; he said no, Billy ,was a good child. “ He said they had stoned him: stoned his house, and « tried to kill him; and said I must never tell what he “had told me: that they would kill him.
“ He, the witness, made an effort with the old man, to get him to make friends with Will. He opposed it, “ but at last said, go and bring Billy, and he would ge “John, and see Lewis”
Mr. Sullivan also proves several strange and unusual acts, and says that it was his opinion that he was deranged.
Though William, in the sequel, acted imprudently and unjustifiably towards a parent, whatever cause .might have existed, it is evident, from the proof, that the unusual, unnatural and violent conduct of the father, indicating an unnatural aversion to his son, and a diseased state of mind, preceded the misconduct of the son, and could not have been produced by it. And therefore, if >the rash expressions of the son, after a continued persecution on the part of the father, were ever borne to his ears, it does not necessarily follow, that his disinherison was caused by those rash expressions; but it might well be inferred by the jury, that his exclusion rested upon a different foundation, and was produced by a different cause: namely, an unnatural and insane aversion to his son, inflamed and kept alive by the sinister influences of his other sons.
Upon the whole, although we might not, as original triers of the facts, have come to the conclusion, that the will was invalid — without analyzing or reasoning upon the many facts that point to a diseased state of mind, and to an insane aversion to his son, as well as to an un[331]*331due and improper influence exercised over the decedent by the principal beneficiaries in the will, and from which the jury might rationally have inferred the continuance of some or all those operating causes at the very time of making the will — the majority of the Court are perfectly satisfied, that after the jury have passed upon the facts exhibited in this record, and found a verdict against the validity of the will, and the Circuit Court before whom the witnesses were examined, face to face, has refused a new trial, that this Court ought not to disturb the verdict.
Conclusion upon the jury would filble finding against the win, upon the single consideration of exeralse by the option that where a son ad: father which ge earersion and absolute hostility, and other sons — instead of effect are concil vintage f tim peculiar temper\ oesfand excited fathe\ stiií fur6 Jher to inflame him, widen and perpetuate the Tilw qf affecting “ the father, who will, which is didinheriteds, and larger shares given to the others, they should be deemed to have exercised taht sort of undue influence over the father, which renders the will invalid.
Judgment affirmed with costs»
Judge Marshall’s additional view.
J deem it only necessary, in brief and very general terms, to present one additional view, on which, if there were no others, I think the jury were justified in finding their verdict; and on which, therefore,.I concur in ,, . , ~ the judgment of affirmance pronounced by Judge bwing, as the judgment of the majority of the Court.'
It is true, that after the deceased had imbibed and displayed a most determined hostility to his son William; after the father, on the occasion of the first display of that hostility, in the matter of endeavoring to expel him fi'om the church, had. refused his offer to go down up on his knees and beg his forgiveness, telling him he would forgive him only on condition he would never set foot on his place again, and after — as the jury might have inferred — the father had subsequently met his attempt to give him his hand, with an offer to strike him with his stick — William appears, on two or three occasions, in his absence, to have given- way to feelings, and used expressions m regard to him, which no conduct in a father can justify in a son. But, if the jury might have found in this conduct of William, a cause sufficient to induce even a rational but severe father to cut off an ungrateful son from any share in his estate, [332]*332they had, also, a right to trace this unhappy dissention to its source, and to follow its progress; they had a right to infer, from facts proved, that excessive and unfounded as were the feelings of the father in the first instance, they might have been allayed by the healing effects of time, or soothed by the efforts of mutual friends; that they were in fact softened more than once by the appeal of strangers, but that they were, from time to time, excited and inflamed by the insinuations of the defendants, or some of them, referring to- the first cause of hostility. They might have found that the same defendants, the brother or brothers of William, who, as their mother testifies, had never once said, “Father, make friends with William,” were the persons who communicated to their father, the intemperate expressions of his discarded son. And they might have found that the influence of these brothers, thus acquired and directed against the interests of William, had prevented the natural flow of that tide of affection which would have brought the father to a reconciliation with his son; and that they had fortified his heart against the intercession of friends. To this influence, operating on a mind which, if not actually insane, was subject to violent excitements and inveterate passions, and was, moreover, greatly impaired by age, by excessive drink, and by habitual subjection.to the most extravagant delusions, they had a right to attribute the disinherison of William,.and the concentration of the father’s affections and estate upon the defendants. They had a right, therefore, to say, that this will was the result of this influence of the defendants upon the mind and will of their father, and not of his own deliberate judgment upon the conduct of his son.
While, therefore, I am free to say that, if there had been no rational ground, as in my opinion there is, for the deduction that the will was procured by the extraneous and undue influence of the defendants, or some of them, I should have had great doubts at least, whether the verdict ought to be sustained; I am unhesitatingly of opinion that, when some of the sons of a decedent have, contrary to their duty to a brother, taken advantage of [333]*333a casual excitement of their common father against him, and playing upon the peculiar temperament which this father is proved to have possessed, have, for their own advantages, widened into a state of mutual exasperation and hostility, a breach which they should have endeavoured to heal, and producing this state of things, with a view to its effect upon the distribution of the father’s estate, have created in his mind, or essentially contributed to create, a fixed aversion to their brother, and a consequent fixed determination to exclude him from a participation in his estate; they have used means, and exercised an influence, undue and sinister, which, in justice and in law, as well as on principles of morality and benevolence, should deprive them of the advantage which they have unjustly endeavoured to obtain, by invalidating the will made under this undue and insidious influence. And believing that, although the evidence does not conclusively establish the exercise of such an influence in the procurement of the present will, it is clearly sufficient to authorize the finding of the fact to be so, I cannot, merely because I doubt as to the weight of the evidence on this point, or because I might doubt as to its sufficiency, or think it insufficient to sustain the verdict on the ground of insanity alone, withhold my consent from the general conclusion that the verdict should not be set aside by this Court, as being unsupported by the evidence.
Keyiew of the pinion that, it moreT than^thJi toa^a^anSf strong feelings and violent passions — was addicted to intoxication — producing in him, as it does in many others, a peculiar sensativeness and excitability, extravagant notions, and occasional fits of great violence and absurd raving — all of which subsided when the liquor ceased to operate —leaving his naturally strong and acute mind to its ordinary, rational impulses; that when he first went to make the will, at each of several times when he returned, after some progress had been made and the writing suspended, and at its execution, he was free of insanity and intoxication — cool, deliberate, circumspect, and entirely competent; and that there is no evidence whatever, in the record, of any fraud or undue influence on the part of the devisees, in procuring the will; and that the proof, upon the whole case, is wholly insufficient to sustain the verdict.