•By the Court —
Jenkins, J., delivering the opinion.
This case comes before us upon exception to the judgment of the Court below, refusing to grant a motion for a \ew trial, and error is assigned on each ground taken in that motion. Leaving the first ground to be last considered, we dispose of the others, in the order in which they are stated. Deeming it unnecessary to examine in detail the several exceptions taken to the charge given to the jury, we consider them as expressed in general terms, thus: “ the charge of the Court, taken as a whole, was erroneous, and calculated to mislead the jury.”
1st. The object of the presiding Judge was to instruct the jury, what in law constitutes testamentary capacity, for the great question in this case was, had the testator such capacity ? We premise that all he may have said, and all we may say, must be taken apart from cases of idiocy, and of established insanity, and from all cases of supposed improper influence, and must be applied only fo cases of alleged impairment of mind by age or by disease.
From a careful review of the charge, we cannot say that it is erroneous. There is in it, -we incline to think, no proposition that is not sustained by authority. It is, perhaps, ' too much amplified — the same idea repeatedly presented — . sometimes more, and sometimes less, elaborated. The object was, to fix in the minds of the jurors the idea intended to be conveyed by the terms “sound and disposing mind and memory,” as constituting testamentary capacity. In any attempt to convey this idea to a mind unlearned^ in the law,. [68] amplification is apt to produce confusion, although it may not lead in a wrong direction. Simplicity and brevity are indispensable to complete success. Our impression is, that the following, or something very like it, would best accomplish the object. A person has testamentory capacity, who understands the nature of a testament or will, viz: that it is a disposition of property, to take effect after death, and who is capable of remembering generally, the property subject to his disposition, and the persons related to him by the ties of blood, and of affection, and also of conceiving, and expressing by words written or spoken, or by signs, or by both, any intelligible scheme of disposition. Harrison vs. Rowan, 3 Wash, C. C. R., 580; Kirkwood vs. Gordon, 7 Rich., 379 ; Potts et. al. 11 Ga. R.,. 33.
In the elaborate charge given by the Court below, we find nothing inconsistent with this test, nothing establishing a higher or lower standard of testamentary capacity, and therefore no ground for reversal.
2nd. It appears, that on a former occasion, when this case was before the Court below, the presiding Judge delivered a written charge to the jury; that after a mistrial, that document remained among the Court papers of the case, and thát on the recent trial, one of the caveators’ counsel, in his argument to the jury, read it to them, stating that it was the charge which the Judge had once given in this case, and which he would give again, and • this being permitted by the Court, is made a ground of the motion for' a new trial. It is not pretended that the paper was furnished by his Honor, to the counsel, to be thus used: it came accidentally into his hands; and he was permitted (no objection being made) to read it. Unquestionably the right practice is, that nothing, in the nature of instruction to the jury, should pass from the Court, until the argument shall have been concluded. But if counsel, from notes taken by him on a former trial, or from his recollection of the charge of the Court as then given, rehearse it to the jury, a«d assume that it declares the law of the case, there would seem to be. no good reason for arresting him, and prohibiting that course. Upon principle, we do [69] not see that the use of the notes made by the Judge himself, would make the matter worse. It is a question of propriety between the counsel and the Court, in which the interest of the opposite party is not at all involved.
The Judge had the opportunity of correcting any error that may have been made, either in the reading of counsel, or in the charge itself, should his opinion have undergone any change. We do not suppose that any Judge would be likely to introduce such a practice, or to furnish voluntarily, facilities for so doing, but the occurrence is not of so grave a character as to entitle the party to a new trial.
3d. The Court was asked to grant a new trial, because the jury were permitted to separate during the recess taken by the Court, pending a very long trial, including adjournments from day to day, notwithstanding counsel for the propounders privately requested the Judge to keep them together. The private request here mentioned, gives no additional force to the exception taken. This Court will never review anything which transpires privately in the court room,, between the Court and counsel — will take no cognizance of such a request, because it can evoke no judgment or decision of the Court.
Is it then erroneous in the Court to permit a. special-jury, engaged in a protracted trial of a civil cause, to separate whenever the Court takes a recess for necessary refreshment, no motion being made contra, or cause shown for not doing so? We think not. It is a matter of practice that may well be submitted to the sound discretion of the Court, the usual caution being given to the jurors not to converse with any one touching the case during such separation.
4th. We come now to the principal ground upon which the motion for a new trial rests, viz., that the verdict is contrary to law, and the evidence, and strongly and decidedly against the weight of the evidence. The great question in the ease is, whether or not, in view of all the evidence, the testator had, at the time he made his will, testamentary capacity. It is not pretended that he was either idiotic or lunatic. He was a man of fair, intellect, had been bred to and [70] had practised the law, had been called to the bench of the Superior Court, had managed his affairs prudently and well, and had accumulated a considerable fortune. He was not superannuated, nor was he at the time he made his will suffering from great physical debility, having travelled nearly one hundred miles to the residence of his chosen scrivener, and having continued after the execution of his will to journéy yet further from home, attended only by a servant — one of his own slaves. He had had residing with him, for some time anterior to his death, a young man, who wrote for him, and attended to some extent to his business, but even down to his last illness (of but a few days’ duration) he gave to it his personal attention and active supervision, buying and selling, loaning and collecting money, etc., etc. Indeed, his business transactions were either conducted by himself, or, if Tone by lawyer or agent, were carefully and intelligently reviewed by him. Throughout his life, in character, in mind, and in manners, he manifested striking peculiarities, amounting to eccentricities. He was particularly remarkable for strong will, for independent thought, and frank expression of opinion upon all subjects, and for ardent friendships and aversions. For years prior to, and at the time of his death, he had neither wife nor child, but numerous collateral relations. About five years anterior to his death, he was stricken with paralysis, the first shock of which prostrated both his physical and mental energies. Having a vigorous constitution, he in a comparatively short time rallied, and regained a very comfortable degree of health and strength. His mind, too, measurably recovered its wonted strength and activity, but to what extent we have now to inquire. That all of its faculties were never after restored to antecedent vigor, may be conceded as a fact established by the concurrent testimony of all the witnesses. It is to this interval, between the shock of paralysis and his death, that our preceding remarks relative to his business habits apply. Such was the man, his circumstances and connections in life, whose testamentary capacity we are to consider. The Ordinary of the county wherein he resided at the time of his death, [71] granted probate of a paper purporting to be, and propounded in common form, as his last will and testament. Subsequently, the executors were cited to prove it in solemn form, and upon presentation of their allegations, certain of the heirs-at-law of the deceased filed a caveat against the probate of the will, on the ground that the testator, at the time, of making it, was not of sound and disposing mind and memory, and that the paper propounded was not his last will and testament. The Ordinary, after a hearing, gave judgment for the paper propounded, and the caveators appealed to the Superior Court of Whitfield county, where a verdict was rendered by a special jury, that the paper propounded was not the last will and testament of the deceased. The brief of evidence filed in the Court below, with a motion for a new trial, and coming up here with the record, is voluminous, many witnesses having been examined. The question to be determined is, had the deceased testamentary capacity at the time the paper propounded was made ? Much of the evidence, however, relates .to his condition before and after that time; indeed, it covers the entire interval between thq| paralytic attack and his death. There are particular incidents testified to, by highly credible witnesses, that deserve to be noted. Having made a previous will, with which he became dissatisfied, and which he determined to revoke, he called together the subscribing witnesses, declared to them his dissatisfaction with it, and in their presence destroyed it. He engaged a neighbor and friend, who had written that will, to write another for him. But before he found it convenient to attend to the engagement, that friend left the neighborhood, expecting to be absent several months. Deceased then went a distance of nearly one hundred miles, to one who had been his friend from early manhood, one learned in the law, distinguished for ability, integrity, and amiability, and invoked his aid. The task, a difficult one, owing to his infirmity, being accomplished by mutual patience and perseverance, he expressed great gratification, and exclaimed exultingly, “I knew you could fix it.” Taking possession of the will, after execution, and returning home [72] after several days, lie summoned to him the two persons named as executors, and exhibited to them that clause of the will, and urged their agreement to accept the trust. This obtained, he subsequently counted with them his money, being fourteen thousand, two hundred and fifty dollars in gold. It was .first put into parcels of equal value, then those parcels counted, and by a short arithmetical process, the aggregate was ascertained. One of the executors named, made this calculation, and stated the result. Whereupon, the deceased said, “That is not right; mistake, sir;” and by inspection of the parcels, he discovered one to contain one piece too much. The value of the piece being added to the result previously attained, the deceased said, “that is right.” This occurred between the making of the will and his death, the whole interval being seventeen days.
There are other incidents, supposed to indicate great mental infirmity. On one occasion he ordered the wagon of a visitor to be put into the stable and fed; on another, speaking of fowls, he called them mules; on another, he offered •.fifty cents a piece for ducks, the market price being ten cents; on still another, being met and addressed by a neighbor, he exclaimed, “ who are you ?”
Again, being invited to a settlement of mutual accounts, he postponed it on account of the absence of the young man who resided with him, and attended to his business occasionally. Also, on one occasion, (probably immediately after the execution of the paper propounded,) whilst traveling in a railroad car, he talked in a voice so loud, and in a manner so boisterous and incoherent, passing rapidly from one subject to another, that the witness thought him deranged. There are, doubtless, other incidents testified to, of more or less significance, but these are cited as most significant on each side. The following points may be considered as established by an overwhelming weight of. evidence, drawn from the witnesses of both parties: That during the time he was affected with the infirmity which brings his testamentary capacity into question, he did buy and sell, and transact business generally, and in all this, did manifest a large degree of prudence [73] and sagacity; that his judgment, as to the quality, value and ruling prices of articles he bought or sold, was good; that he discriminated between different currencies, precisely as he had done before his affliction; that he made calculations, and reviewed those made by others, with accuracy; that he continued to the last a keen and sagacious trader; that he had great difficulty in expressing his thoughts, seeming unable to command language, forgetting the names of persons and things; that he was always glad to have aid from his collocutor, promptly adopting or rejecting any conjectural statements of his meaning, always manifesting by his promptness and decision that he had a clear and distinct idea in his mind, for which he would allow no other substitute; that if, for lack of change, he could not pay promptly for an article purchased, (as was his wont,) he would, days after, wait upon the seller, with the exact amount due; that he invariably knew and appreciated his own property; that he almost without exception knew his friends and acquaintances, though seldom able to recall their names; that he remembered his relations, and frequently spoke of them — of some with favor, and of others with disfavor or indifference; that at times he seemed to have difficulty in connecting and comprehending long sentences addressed to him orally,' but read with facility, and understood readily and perfectly what was written. One witness, who disbelieves his testamentary capacity, uses the singular expression, that “ the mind of the deceased seemed to be in his eye,” forcibly conveying the idea that what he saw he perfectly understood. The witnesses, in so far as their expressed opinions are concerned, may be arranged into three classes : 1st, the subscribing or attesting witnesses; 2d, professional or medical witnesses; 3d, all others testifying to that point. The subscribing witnesses, so far as examined— among whom was the draftsman of the will, an acquaintance and friend of the deceased from early manhood — concur in opinion, that he had testamentary capacity. Of the medical gentlemen testifying, few knew him intimately, or had much intercourse with him. Some believed that he had, and others that he had not such capacity, and still others doubted. [74] Dr. Rosenburg, who was his family physician, who attended him when stricken with paralysis, and in his last illness, and who was in constant intercourse with him during the interval, is decidedly of the opinion that he was capable of making a will. The other witnesses are divided in opinion, the numerical preponderance being small either way. But there is this material fact, giving preponderance to those holding the affirmative, viz: that, as a general rule, (deducible, as regards each witness, from his own testimony,) those who knew him best — had most personal association with him, and most numerous business transactions — were of this class. Therefore, after careful analysis, we conclude that the verdict is not sustained by opinion emanating from the witness’s stand. The weight of opinion is against.. But this is not conclusive. The opinions of witnesses are but aids to jurors in the formation of their own. Theirs is the prerogative of looking beyond, to the facts disclosed by the witnesses as to the basis of their judgment. To these facts, then, we turn. And first, we notice particular incidents, relied upon by the caveators. He called a horse a wagon, but there is often an intimate connection between the two, and to the horse, unfortunately misnamed on this occasion, there may or may not have been a wagon attached. Certain it is, that it is often said of per-, sons never suspected of mental derangement, nay, even of wise men, that they put “ the cart before the horse.” Shall this man’s mind be condemned as unsound because, on that occasion, he put the cart for the horse ? He called fowls mules.
It will be remembered that, as shown by the testimony, he was eminently a man of hobbies, in his best condition, and that the raising of poultry and mules were among his favorite projects. Hence the connection. No witness, however, testifies that he ever offered the price of a mule for a fowl, or plead the value of a fowl as the price of a mule he wished to sell. He did, however, offer fifty cents per head for ducks, whose market value was ten cents. But it will be remembered that this was a rare variety of ducks, which he desired to introduce to his poultry yard. It fell in with one of his hobbies. He doubtless wanted to present an irresistible temp[75] tation, which, however, the possessor did resist. He inquired rudely of'a neighbor who saluted him, “Who are you?” The idea is, that he failed to recognize a man who should have been well known to him. But does this never happen to sane’ men ? May not this interrogatory have been his mode of inquiring the name of one whose person was recognized, whilst the name could not be recalled? On one occasion he postponed a settlement of accounts until he could have the presence and aid of his man of business, and this is relied upon as evincing a consciousness that he could not understand accounts and make settlements; but this is easily and naturally referable to his consciousness of the difficulty of making himself understood. This would alone seem to furnish a reason for devolving upon his stated agent all affairs of that nature, admitting of postponement. Regarding his conduct on the car, it may be said that he had always been remarkable for eccentricity of manner, and for passing abruptly from one subject to another. To these superadded the embarrassment resulting from his forgetfulness of words, and it will not be surprising that one not familiar with him, and not then conversing with Kim, should have thought him deranged. Indeed, the inevitable effect of his infirmity was to exaggerate his eccentricities. These incidents, considered in connection with those prominent peculiarities, and the supervening infirmity, are reconcilable with entire sanity, and ordinary business capacity. Waiving a discussion seriatim of incidents of an opposite character, before recited, I deduce from these the following influences, viz: That the deceased had a settled purpose, not to die intestate j that he bestowed much reflection upon the making of his will; that he was careful to obtain efficient aid in carrying into effect that purpose; that he carefully guarded against any difficulty that might arise from the existence of a prior will; that he showed forecast and discretion on obtaining from the executors, named in the paper propounded, a promise to accept the trust; that he wished to insure security to the unusually large sum of money on hand by counting it in their presence; that he either had ascertained beforehand, and accurately ' remem[76] foered the gross sum, (though considerable, and consisting of many pieces,) or that during the count he made a correct enumeration of it, promptly rectifying a mistake made by his man of business, and himself discovering how and where it occurred. These are worth something in the estimate of testamentary capacity. Recurring to the summary of the evidence, as to his general condition, the conclusion is inevitable that he was by no means oblivious of persons and things wherewith he had been previously conversant; that he correctly .estimated qualities, values, and prices of articles in which he dealt; that apart from the difficulty of communicating with others, he had abundant capacity for transacting business, and remembered its details well. There is no evidence whatever that his judgment was impaired, his moral sense blunted, or his natural affections prerverted, by the ordeal of suffering through which he had passed. In what, then, had he been endamaged ? His memory was impaired. But, it is argued, this faculty has an important part to act in the grave business of making a testament. This is certainly true, but it is not every impairment of memory that disqualifies for the office. TÜtfe human mind is curiously and wonderfully constituted. The study of it (a most interesting and important science) has developed and fixed with great certainty some of the laws which govern its action. Among others, these truths are well established, that those capabilities which are denominated mental faculties, are found to exist in different relative degrees in different minds — some being, in respect of the faculties, better balanced than others; that the impairment of one faculty is not necessarily or invariably attended by like impairment of others; that some of these faculties are themselves complex, acting with far. greater power and precision in some departments than in others equally within their proper functional range, and that their power in one of these departments may become impaired without causing diminution in another. Let us exemplify : Memory, by which man is enabled to recall past events and impressions, is not a simple faculty. We discriminate often (and are fully warranted in so doing by experience and ob[77] servation) between memory for faces, for places, for ideas, for words and for numbers. Every mind, not positively deficient, has each of these memories, so to speak, in a greater or less degree, and probably no mind ever had them all in equal degrees. One retains, in perfect fidelity, the faces of former acquaintances, however little known, and evinces recognition on unexpected meeting, but is utterly unable to recall the names appertaining to them respectively. Whilst another is utterly oblivious of faces until aided by names. Some children (said to be highly endowed with mathematical talent) will, by a purely mental process, multiply twelve figures by twelve other figures, arbitrarily stated. Now, this process requires accurate memory of the exact collocation, not only of all numbers in the sum stated, but of all produced in the process of multiplication, without which the final process of addition could not be performed. Now, this mental operation, to others, having perhaps in other departments superior memories, would be an utter impossibility. These remarks, will, perhaps, suffice to illustrate a proposition necessary, in our opinion, to a proper decision of the question presented by the record, viz: That memory is a complex faculty of the mind, and that it may be deficient by nature or from casualty, in some of its functions, and vigorous in others.
When, therefore, the testamentary capacity of an individual is questioned because of a failure or impairment of memory, it becomes necessary to inquire into the nature and extent of that impairment, in order to determine whether or not there be enough remaining to answer the requirements ■ of the law in the performance of a testamentary act. The evidence in this case has produced in our minds a clear and firm conviction that the injury done to the mind of the deceased by paralysis, was the impairment of his memory for words, or as it is more technically styled, his verbal memory. Beyond this, we see no evidence of mental derangement. His memory for and his judgment of persons and things seems to have suffered no detriment. Eecurring to the test adopted by us in the early portion of this opinion, we remark 1st, [78] there is not a shadow of doubt that the deceased .understood the nature of the instrument he was making; 2d, that he was capable of remembering generally the property subject to his testamentary disposition, and the persons related to him by the ties of blood and of affection. Respecting such persons, this is evinced by his having repeatedly spoken, not long anterior to the execution of his will, of his relatives, as well those separated from him by time and space, as of others, and' of his having mentioned some with different degrees of favor, and others with disfavor. And it is noteworthy that the latter class are unprovided for in his will. 3d, That he was capable of conceiving an intelligible disposary scheme, and on this point the instrument itself, in the total absence of evidence fhat he was aided in framing the scheme, speaks for him. It does not appear from the full, clear and unbiased narrative of the distinguished draftsman, that he had any agency in framing the scheme. The only suggestion delicately offered by him, looking to the benefit of a particular kinsman, was promptly rejected. If evidence is to be credited, the scheme,was all his own, and it is both intelligible and practicable, in reason and in law. 4th, That he was capable, by words spoken and written, and by signs, of expressing the scheme he had conceived. It is just here that, from the peculiar infirmity of his memor}’-, if anywhere, we expect to encounter incapacity. Yet who that reads attentively and without bias the testimony of Judge McDonald, can doubt that, by the patient and persevering use of all those appliances, the deceased successfully conveyed to him what he wished done ? The task was a difficult one, but not impossible, and the evidences of success are overwhelming.
What he found difficulty in imparting, he.required first written, when understood, upon a scrap of paper, and submitted to his perusal, and, if approved, put into the rough draft, then again read to him and by him,- and finally had the fair draft read to him before executed. The testimony is conclusive, that what he read he clearly- understood, and that he read, or seemed to read, the whole draft. Further[79] more, lie indulged in lively expressions of gratification that his wishes had been accomplished. The brief of testimony, in this case, does not present the ordinary aspect of conflicting evidence. It is a conflict of opinion, rather than of fact, among the witnesses. Hence we feel less reluctance than usual in disturbing the verdict of a jury upon this ground.
If the jury concluded that the mind of the deceased was materially weakened beyond the impairment of verbal memory, our opinion is, that their verdict was strongly and decidedly against the weight of evidence.
If they entertained our view on this point, then we think their verdict was contrary to law, and in either case the judgment of the Court, refusing to set it aside, must be reversed.