By the Court.
Lumpkin, J.
delivering the opinion.
This case comes up on a writ of error, from the Superior Court of Elbert County, on exceptions taken at the trial of issues which came before that Court, on appeal from the Court of Ordinary of the same County, upon a caveat against the admission to probate of a certain instrument of writing, purporting to be the will of William Ward.
There are several bills of exception; some to the rejection by the Court of evidence offered on the part of the caveators, to impeach the validity of the instrument; others to a series of instructions given by the Court to the Jury, after the testimony was closed; and one to the alleged misconduct of the presiding Judge, after the Jury were charged with the case, and had retired to their room.
The first question we are called upon to decide, is as to the competency of the testimony of Dr. Edwin A. Jones. The witness examined the testator, as a physician, in November, 1849, and swore, that at that time, from old age, or some other cause, he was totally deprived of reason — “being what he would term an idiot.” It was previously proven, that his mental condition at that time was the same that it was in 1844, when the will was made. The evidence was objected to and excluded by the Court, on the ground that it was too remote.
[1.] The general principle will not be controverted, that the state of mental capacity is to be determined by the condition of the testator’s mind, at the time of his executing or acknowledging the will. For notwithstanding his incapacity at a prior or subsequent time should be proved, it does not necessarily [342]*342follow, that he was incompetent, when the will was made ; especially if the incapacity be subsequent to the execution of the instrument.
[2.] And notwithstanding, it may be true, that for the pur¡pose of shedding light upon the state of the testator’s mind when the will was made, evidence of its condition, both before and after that period, may be produced :
[3.] Still as an insulated point, we should unhesitatingly hold that proof of the imbecility of William Ward in 1849, was inadmissible to impeach a will made by him in 1844.
[4.] But here ithad been already established, that the state of the testator’s mind was the same in 1844, and before and after that date, that it was in 1849. This laid the foundation for the introduction of Dr. Jones’testimony. For if the testator was non compos mentis, in 1849, and his mind was in the same condition in 1844, when the will was made, then it follows irresistibly that the testator was incapable of disposing of his estate, when the instrument was executed. Per se, the proof was objectionable; taken in connexion with the other evidence, it was relevant and proper.
[5.] We are not prepared to rule that the inquisition of lunacy, found in 1849, stands upon the same footing. Had the insanity of the testator been legally established before the will was made, its continuance would have been presumed, and the onus cast upon the propounders of the will, to show that the disqualification had been reversed. The maxim is, semel fwribundus semper furibundas praesumitur. The converse of the proposition, however, or the doctrine of relation back, does not hold in such cases. The strongest objection, perhaps, to the admissibility of this judgment of lunacy is, that it is res inter alios acta. The record does not disclose that the propounders of the will were parties or privies to that proceeding.
[0.] As to the objections made to the instructions of the Court, we admit that they were not so perspicuous, perhaps, as they might have been. The duty of summing up, especially where the facts are numerous and complicated, as in the present case, is often difficult to discharge. It is scarcely possi[343]*343ble for the most enlarged and experienced mind, in the “ noise and confusion” of a nisi prim trial, to recapitulate and group together all the testimony for and against, and to lay down with precision the principles of law applicable to the facts. And when it is apparent that justice may have been defeated by the misapprehension of the proof or the law, by the Court, the error calls for correction as a matter of right.
[7.] If, however, taking all the instructions collectively, the law seems to have been properly expounded to the Jury, the judgment will not be reversed, though some one opinion may be erroneous. 3 Gill, and Johns. 450. 6 Harr. & Johns. 57. 7 Ib. 147.
[8.] Now it is conceded that fraud is a different head of objection to the validity of a will, from importunity or undue influence. Indeed they are usually the very opposites of each other. In the one case the party is induced by imposition to do willingly the act which he performs. The mind of the testator being poisoned by the fraudulent practices which have been resorted to, so far from having his free agency controlled, he delights to use the power which he has, to cut off near and dear relations — a wife or children for instance — having the strongest natural claims upon his affection. He glories in the act, however absurd, unjust and unreasonable.
Not so with a person who has come under the power or dominion of another, and whose firmness has at last reluctantly yielded through fear, until he is made to do that which his judgment and will, if free and unconstrained, would instantly repudiate.
Fraud and importunity are equally destructive of the validity of a will made under their influence. And so the Judge, in substance, instructed the Jury, in the conclusion of his charge, the whole of which must be taken together.
It is a curious fact and one worth noting, that in the speeches oflsaeus, the master of Demosthenes, ten out of sixty-four having been preserved, and which are the most ancient monuments extant of the kind, the orator urges the claim of [344]*344kinship and blood; and hurls the bitterest reproaches against the frauds suggested in the procurement of wills.
It is contended that the Court should have told the Jury, upon the question of insanity, that there must be mind acting regularly; and the will, in order to be setup, should be the emanation or result of that mind.
After the somewhat elaborate treatise on wills,’ published by this Court in 1849, for which Potts and others vs. House, was the text, or as some may have supposed, rather the pre-text, we had thought that we should not be called on again for an exposition of the phrase, “ sound and disposing mind and memory.” How vain the hope for any Court to entertain, that principles of law can be so stated as to bid defiance to the astuteness of counsel, against whose clients these principles operate. For myself I am free to confess that I utterly despair of ever furnishing a “ supplement” which will materially improve, much less supplant the original work, to which I have referred.
[9.] We have no other standard in Georgia, by which the mental capacity of a testator is to be measured than that supplied by the Common Law.
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By the Court.
Lumpkin, J.
delivering the opinion.
This case comes up on a writ of error, from the Superior Court of Elbert County, on exceptions taken at the trial of issues which came before that Court, on appeal from the Court of Ordinary of the same County, upon a caveat against the admission to probate of a certain instrument of writing, purporting to be the will of William Ward.
There are several bills of exception; some to the rejection by the Court of evidence offered on the part of the caveators, to impeach the validity of the instrument; others to a series of instructions given by the Court to the Jury, after the testimony was closed; and one to the alleged misconduct of the presiding Judge, after the Jury were charged with the case, and had retired to their room.
The first question we are called upon to decide, is as to the competency of the testimony of Dr. Edwin A. Jones. The witness examined the testator, as a physician, in November, 1849, and swore, that at that time, from old age, or some other cause, he was totally deprived of reason — “being what he would term an idiot.” It was previously proven, that his mental condition at that time was the same that it was in 1844, when the will was made. The evidence was objected to and excluded by the Court, on the ground that it was too remote.
[1.] The general principle will not be controverted, that the state of mental capacity is to be determined by the condition of the testator’s mind, at the time of his executing or acknowledging the will. For notwithstanding his incapacity at a prior or subsequent time should be proved, it does not necessarily [342]*342follow, that he was incompetent, when the will was made ; especially if the incapacity be subsequent to the execution of the instrument.
[2.] And notwithstanding, it may be true, that for the pur¡pose of shedding light upon the state of the testator’s mind when the will was made, evidence of its condition, both before and after that period, may be produced :
[3.] Still as an insulated point, we should unhesitatingly hold that proof of the imbecility of William Ward in 1849, was inadmissible to impeach a will made by him in 1844.
[4.] But here ithad been already established, that the state of the testator’s mind was the same in 1844, and before and after that date, that it was in 1849. This laid the foundation for the introduction of Dr. Jones’testimony. For if the testator was non compos mentis, in 1849, and his mind was in the same condition in 1844, when the will was made, then it follows irresistibly that the testator was incapable of disposing of his estate, when the instrument was executed. Per se, the proof was objectionable; taken in connexion with the other evidence, it was relevant and proper.
[5.] We are not prepared to rule that the inquisition of lunacy, found in 1849, stands upon the same footing. Had the insanity of the testator been legally established before the will was made, its continuance would have been presumed, and the onus cast upon the propounders of the will, to show that the disqualification had been reversed. The maxim is, semel fwribundus semper furibundas praesumitur. The converse of the proposition, however, or the doctrine of relation back, does not hold in such cases. The strongest objection, perhaps, to the admissibility of this judgment of lunacy is, that it is res inter alios acta. The record does not disclose that the propounders of the will were parties or privies to that proceeding.
[0.] As to the objections made to the instructions of the Court, we admit that they were not so perspicuous, perhaps, as they might have been. The duty of summing up, especially where the facts are numerous and complicated, as in the present case, is often difficult to discharge. It is scarcely possi[343]*343ble for the most enlarged and experienced mind, in the “ noise and confusion” of a nisi prim trial, to recapitulate and group together all the testimony for and against, and to lay down with precision the principles of law applicable to the facts. And when it is apparent that justice may have been defeated by the misapprehension of the proof or the law, by the Court, the error calls for correction as a matter of right.
[7.] If, however, taking all the instructions collectively, the law seems to have been properly expounded to the Jury, the judgment will not be reversed, though some one opinion may be erroneous. 3 Gill, and Johns. 450. 6 Harr. & Johns. 57. 7 Ib. 147.
[8.] Now it is conceded that fraud is a different head of objection to the validity of a will, from importunity or undue influence. Indeed they are usually the very opposites of each other. In the one case the party is induced by imposition to do willingly the act which he performs. The mind of the testator being poisoned by the fraudulent practices which have been resorted to, so far from having his free agency controlled, he delights to use the power which he has, to cut off near and dear relations — a wife or children for instance — having the strongest natural claims upon his affection. He glories in the act, however absurd, unjust and unreasonable.
Not so with a person who has come under the power or dominion of another, and whose firmness has at last reluctantly yielded through fear, until he is made to do that which his judgment and will, if free and unconstrained, would instantly repudiate.
Fraud and importunity are equally destructive of the validity of a will made under their influence. And so the Judge, in substance, instructed the Jury, in the conclusion of his charge, the whole of which must be taken together.
It is a curious fact and one worth noting, that in the speeches oflsaeus, the master of Demosthenes, ten out of sixty-four having been preserved, and which are the most ancient monuments extant of the kind, the orator urges the claim of [344]*344kinship and blood; and hurls the bitterest reproaches against the frauds suggested in the procurement of wills.
It is contended that the Court should have told the Jury, upon the question of insanity, that there must be mind acting regularly; and the will, in order to be setup, should be the emanation or result of that mind.
After the somewhat elaborate treatise on wills,’ published by this Court in 1849, for which Potts and others vs. House, was the text, or as some may have supposed, rather the pre-text, we had thought that we should not be called on again for an exposition of the phrase, “ sound and disposing mind and memory.” How vain the hope for any Court to entertain, that principles of law can be so stated as to bid defiance to the astuteness of counsel, against whose clients these principles operate. For myself I am free to confess that I utterly despair of ever furnishing a “ supplement” which will materially improve, much less supplant the original work, to which I have referred.
[9.] We have no other standard in Georgia, by which the mental capacity of a testator is to be measured than that supplied by the Common Law. By the legislation of some of the States, the inquiry must always be, whether, at the time of executing or acknowledging the will, the testator was capable of making a valid deed or contract; and no inferior grade of intellect mil suffice. Such, however, is not the rule here. Persons of unsound mind are not permitted to make wills; because, as the law makes a just post mortem disposition of the estates of intestates, it is deemed safer that the property of such persons should, like the estates of minors, under a certain age, be distributed by law, rather than by the ostensible act of those who are necessarily the dupes of their imbecility or credulity.
[10.] The most sound and reflecting minds agree, nevertheless, that the right to the free enjoyment and disposition of one’s property, is required by the best interest of society, and it will be found that the sacredness of the right has been guaranteed and guarded in exact proportion with the advancement of civilization in the world.
[11.] In Potts and others vs. House, (6 Ga. Rep. 324,) the [345]*345doctrine was stated as dedueible from the authorities, that “ a mere glimmering of reason” was sufficient to sustain a will. We have been requested — nay, importuned — to explain what was to be understood by this language; and we are assured that it has been grossly misapprehended and perverted. The meaning we suppose to be this:
Testaments of chattels might, at Common Law, and by the laws of this State, be made by infants of the age of fourteen, if males, and twelve, if females. This was the English rule until the Statute of I. Victoria, by which the testamentary power of infants is abolished. It is the rule here still. This, by way of illustration, we will designate as the morning dawn of reason, or the break of day of the-mind, in legal contemplation. It continues to unfold and expand until it culminates to the meridian blaze of noon, when no suspicion is entertained of the competency and freedom to act of the testator. It then begins to go down until its disk disappears beneath the horizon. Still, there is the mellow glow of twilight, by which the testator is enabled to comprehend the contents, of his will — the nature of the estate he is conveying to his family connexion — their relative situation to him — the terms upon which he stands with them — his own situation, and the circumstances which surround him. These and like objects, although seen by the testator as through a glass dimly, by reason of the infirmity of age, or other causes, are still contemplated, not by the flashy, fitful and evanescent glare of the aurora borealis; but the steady, though subdued light and illumination of the “ glorious king of day,” although disrobed of his gorgeous and dazzling beams. The animus testandi, the soul of a will, animates the form of the instrument which he has executed.
[12.] As to the complaint against the Court, for calling upon counsel in the presence and hearing of one of the Jurors, to know whether they were willing for the written instructions to be sent out to the Jury after they were charged with the case and had retired to their room, we would remark, generally, that it is irregular and improper for the Court to call upon counsel, in the presence of the Jury, to waive any legal right whatever. It [346]*346ls the duty of the Court to administer justice, according to law. Berry. vs. The State, 10 Ga. Rep. 371.
Either the Court should have delayed making the call until the Juror had retired, and if necessary have dismissed him from its presence for that purpose; or what would have been better, the whole Jury should have been brought back into the box, and the charge reiterated to them, in the presence of the parties or of their counsel.
While we would not reverse the judgment, and direct a new trial on account of this irregularity, we cannot suiter it to pass without condemning the practice.