By the Court.
Starnes, J.,
delivering the opinion.
[1.] It is alleged first, that the Court below erred in admitting, as evidence, the sayings of the testator, not connected with the making of the will, nor immediately preceding the same.
[308]*308Parol evidence of testator’s intentions, offered for the purpose of explaining, altering or contradicting the will, is inadmissible. But such evidence of testator’s previous declarations, when offered, not to explain or alter the will, but simply to prove a long continued purpose, and thus to afford presumptive evidence of testamentary capacity in the last manifestation of that purpose, is proper. If so, of course such evidence is proper, to assail such capacity, or to afford presumption of undue influence. (Cartwright vs. Cartwright, Phillimore, 90. Couch vs. Couch, 7 Ala. 519.)
So far has this been carried, that such evidence has been relied upon, and very properly, too, we think, to sustain the will of an inmate of a mad-house; it being offered for the purpose of showing that the testator wrote the will in a lucid interval, because that it was consistent with a purpose previously expressed, in moments of sanity- (Bootle vs. Blundel, 19 Ves. 508. Stock, on Non Compos. 53.)
The cases cited in the argument, to the effect that the declarations of a testator must be made at or so near the time of the will’s execution, as to become a part of the res gestae, relate altogether to a different point; and the principle there assorted applies to declarations as to the intentions of testator, or to proof of fraud, or some such matter, and does not conflict with our decision on this point.
[2.] The Court also admitted the depositions of Mrs. Sarah Millican, giving certain statements or declarations of the propounder Mrs. Williamson, as to the state of mind of the testator ; and to this, exception is taken.
Mrs. Williamson is executrix, a party to this case, and legatee of the whole estate for life. A conflict of opinion is found in the adjudicated cases on this subject. It has been frequently held that the admissions of a legatee and executor will not be received against the other legatees. And on the other hand, decisions have been made directly to the contrary, and elementary dicta are to be found authorizing the reception of such admissions. The point has been already maturely considered by this Court, and perhaps influenced by the strong in[309]*309clination of modern Courts, to carry as many such objections as possible to the credit, rather than to the competency of the witness, it has been held, that the admissions of an executor, a party to the record, and legatee under the will, are competent evidence to go to the jury upon the trial of a caveat to the will. (Harvey et al. vs. Anderson, 12 Ga. Rep. 69.) We see no reason why this question should not stand, as res judicata: especially as in this case, it would seem reasonable that admissions made by one thus circumstanced ; one who was executrix ; who took the whole property for life ; and who was the propounder of the will; and thus a party to the record, could not have been made against this strong interest, and bias for the purpose of prejudicing the legatees in remainder, or from any other motive than truth.
[3.] Exception is next taken, that when the Court was asked to charge that “ the absence of proof is evidence that the fact does not exist, and consequently, that if the jury believe that no testimony has been produced to show that Mrs. Williamson was prejudiced against her older children, the jury cannot believe that any such prejudice existed.” The Court refused to give the latter part of the request in charge on the ground, that it was charging a fact in the case.
It is our opinion, that the Court might very properly have given the latter part of the request in charge, and that it was the right of the propounder to ask the charge in this shape. We cannot see that the Court would have been stating or assuming any fact proven, by giving this instruction. Nevertheless, we think that the propounder has not been materially prejudiced by this refusal of the Court; for the first part of the request which was given in charge is substantially the same thing, and contains the' same instruction.. Though the language of the request was not entirely accurate; though it was not exact to say, that the “ absence of proof was evidence that a fact did not existyet the plain meaning was, that in the absence of proof, the fact did not exist for the jury, and this was in substance the same, (and they must so have under[310]*310stood it we think) as if he had given all the instruction which had been requested.
[4.] The refusal of the Court to grant a new trial on the ground, that the verdict was contrary to evidence and against evidence is also assigned as error. We cannot sanction the position taken in the argument, that justice would be subserved if the Court would in all cases set aside a verdict when manifestly against the weight of evidence. It may be true, as eloquently insisted by the Counsel,'that it is the high province of the Judge to stand in the breach, and resist the passion and the prejudice which sometimes overcome the jury. But it is also true, that the jury may sometimes stand in the breach, and resist the assaults of oppression and tyranny to which the Judge succumbs. Lessons may be learned from chapters in the history of the Second James, and the Third George of.England, full of the struggles and the triumphs of the trial by jury; and fraught with instruction for freemen.
Our Laws have wisely divided responsibility in this respect, by appointing for our judicial system separate spheres in which these two Constitutional bodies shall revolve; and it is the duty of our Courts to avoid all shock from their improper collision. That such collision may be avoided, we have frequently held, and now again repeat, that the Court should not grant a new trial merely because the verdict is against the weight of evidence ; and never because of this, unless the preponderance be so great as to shock the understanding, and moral 'sense.
We have carefully examined the testimony in this case, and have arrived at the conclusion that though this verdict is against the weight of evidence to an extent which causes us to sympathize with the propounder, and to appreciate the strong and energetic appeals of her Counsel, and their earnest conviction that great injustice has been done by it; yet we do not find that the preponderance goes to an extent which will authorize our interference. On the contrary, we find a case for the caveators made by the evidence, of considerable weight; and that our views may by fully understood, we will call attention to some of this evidence.
[311]*311We have found nothing which really supports the charge of undue influence, and we have not taken that into the account; but the following features of the testimony, we have deemed worthy of consideration:
1. Some fifteen witnesses speak to declarations of the testator at various times, and for many years, manifesting a purpose to divide his property among all his children after the death of Ms wife; whilst but little more than half that number give evidence of previous declarations which favor the disposition made by the will.
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By the Court.
Starnes, J.,
delivering the opinion.
[1.] It is alleged first, that the Court below erred in admitting, as evidence, the sayings of the testator, not connected with the making of the will, nor immediately preceding the same.
[308]*308Parol evidence of testator’s intentions, offered for the purpose of explaining, altering or contradicting the will, is inadmissible. But such evidence of testator’s previous declarations, when offered, not to explain or alter the will, but simply to prove a long continued purpose, and thus to afford presumptive evidence of testamentary capacity in the last manifestation of that purpose, is proper. If so, of course such evidence is proper, to assail such capacity, or to afford presumption of undue influence. (Cartwright vs. Cartwright, Phillimore, 90. Couch vs. Couch, 7 Ala. 519.)
So far has this been carried, that such evidence has been relied upon, and very properly, too, we think, to sustain the will of an inmate of a mad-house; it being offered for the purpose of showing that the testator wrote the will in a lucid interval, because that it was consistent with a purpose previously expressed, in moments of sanity- (Bootle vs. Blundel, 19 Ves. 508. Stock, on Non Compos. 53.)
The cases cited in the argument, to the effect that the declarations of a testator must be made at or so near the time of the will’s execution, as to become a part of the res gestae, relate altogether to a different point; and the principle there assorted applies to declarations as to the intentions of testator, or to proof of fraud, or some such matter, and does not conflict with our decision on this point.
[2.] The Court also admitted the depositions of Mrs. Sarah Millican, giving certain statements or declarations of the propounder Mrs. Williamson, as to the state of mind of the testator ; and to this, exception is taken.
Mrs. Williamson is executrix, a party to this case, and legatee of the whole estate for life. A conflict of opinion is found in the adjudicated cases on this subject. It has been frequently held that the admissions of a legatee and executor will not be received against the other legatees. And on the other hand, decisions have been made directly to the contrary, and elementary dicta are to be found authorizing the reception of such admissions. The point has been already maturely considered by this Court, and perhaps influenced by the strong in[309]*309clination of modern Courts, to carry as many such objections as possible to the credit, rather than to the competency of the witness, it has been held, that the admissions of an executor, a party to the record, and legatee under the will, are competent evidence to go to the jury upon the trial of a caveat to the will. (Harvey et al. vs. Anderson, 12 Ga. Rep. 69.) We see no reason why this question should not stand, as res judicata: especially as in this case, it would seem reasonable that admissions made by one thus circumstanced ; one who was executrix ; who took the whole property for life ; and who was the propounder of the will; and thus a party to the record, could not have been made against this strong interest, and bias for the purpose of prejudicing the legatees in remainder, or from any other motive than truth.
[3.] Exception is next taken, that when the Court was asked to charge that “ the absence of proof is evidence that the fact does not exist, and consequently, that if the jury believe that no testimony has been produced to show that Mrs. Williamson was prejudiced against her older children, the jury cannot believe that any such prejudice existed.” The Court refused to give the latter part of the request in charge on the ground, that it was charging a fact in the case.
It is our opinion, that the Court might very properly have given the latter part of the request in charge, and that it was the right of the propounder to ask the charge in this shape. We cannot see that the Court would have been stating or assuming any fact proven, by giving this instruction. Nevertheless, we think that the propounder has not been materially prejudiced by this refusal of the Court; for the first part of the request which was given in charge is substantially the same thing, and contains the' same instruction.. Though the language of the request was not entirely accurate; though it was not exact to say, that the “ absence of proof was evidence that a fact did not existyet the plain meaning was, that in the absence of proof, the fact did not exist for the jury, and this was in substance the same, (and they must so have under[310]*310stood it we think) as if he had given all the instruction which had been requested.
[4.] The refusal of the Court to grant a new trial on the ground, that the verdict was contrary to evidence and against evidence is also assigned as error. We cannot sanction the position taken in the argument, that justice would be subserved if the Court would in all cases set aside a verdict when manifestly against the weight of evidence. It may be true, as eloquently insisted by the Counsel,'that it is the high province of the Judge to stand in the breach, and resist the passion and the prejudice which sometimes overcome the jury. But it is also true, that the jury may sometimes stand in the breach, and resist the assaults of oppression and tyranny to which the Judge succumbs. Lessons may be learned from chapters in the history of the Second James, and the Third George of.England, full of the struggles and the triumphs of the trial by jury; and fraught with instruction for freemen.
Our Laws have wisely divided responsibility in this respect, by appointing for our judicial system separate spheres in which these two Constitutional bodies shall revolve; and it is the duty of our Courts to avoid all shock from their improper collision. That such collision may be avoided, we have frequently held, and now again repeat, that the Court should not grant a new trial merely because the verdict is against the weight of evidence ; and never because of this, unless the preponderance be so great as to shock the understanding, and moral 'sense.
We have carefully examined the testimony in this case, and have arrived at the conclusion that though this verdict is against the weight of evidence to an extent which causes us to sympathize with the propounder, and to appreciate the strong and energetic appeals of her Counsel, and their earnest conviction that great injustice has been done by it; yet we do not find that the preponderance goes to an extent which will authorize our interference. On the contrary, we find a case for the caveators made by the evidence, of considerable weight; and that our views may by fully understood, we will call attention to some of this evidence.
[311]*311We have found nothing which really supports the charge of undue influence, and we have not taken that into the account; but the following features of the testimony, we have deemed worthy of consideration:
1. Some fifteen witnesses speak to declarations of the testator at various times, and for many years, manifesting a purpose to divide his property among all his children after the death of Ms wife; whilst but little more than half that number give evidence of previous declarations which favor the disposition made by the will.
To a slight extent, this may have been regarded as affording a presumption against Ms testamentary capacity at tho time the will was executed.
2. The principal testimony throwing suspicion on his soundness of mind, is to be found in the statements of witnesses, who were with him in his last moments.
On the 18th day of October, 1849, the will was executed, and on that day, Dr. Crawford Long was in attendance upon the testator ; and says that “ he had some conversation with him — he was not delirious, but conversation scattering — did not think him capable of maintaining a regular conversation.” If this were so, it is not very surprising, that the jury should have deemed him incapable of going through the regular communication necessary to the due execution of a will.
We will find this idea (presented by Dr. Long,) of the scattering and irregular character of testator’s communications, confirmed by other testimony.
John Millican stated that he was present during the last illness of testator, and “ He seemed very restless, rolling his eyes about the room, and from his conversation don’t think he was in his right mind.” He added, “ He thinks he was different from what he usually was.” He said afterwards, that the old man did not talk foolish or unreasonably. But we see by this witness a confirmation of the restless, unsteady character of mind and body spoken to by Dr. Long.
So too, we find William Ray deposing, that Mr. Williamson conversed with Mm on the 17th October on various subjects— [312]*312“ His course was about this, when easy, he would converse until he became restless; after becoming easy he would commence conversing about some new matter, sometimes quitting a conversation, as witness thought unfinished, and commencing on a different or new matter.”
And finally, on this point, we find Mrs. Williamson stating, in the hearing of Mrs. Millican, in confirmation of the same idea, that during his sickness, “ The mind of the testator was flying from one thing to another.”
Now if this be true, and here seems a concentration of testimony on this point, there was in this wandering character of testator’s thoughts; this scattering nature of his conversation; this restless and unsteady state of mind and body; a feature of evidence which the jury might not consider as indicative of proper testamentary capacity. Taken in connection with other facts proven, we think it is no slight testimony.
But decidedly the strongest testimony in support of the verdict, is to be found in the statements of Mrs. Williamson to her daughter. We have decided that they are testimony; and they show that when that daughter, Mrs. King, was mourning over the dead body of her parent, and grieving that “ She had not come in time to see her father while he was in his proper mind,” Mrs. Williamson remarked in substance, “Nancy, you would have had no satisfaction with him at any time of his illness ; for on Sunday morning he was attacked with a violent pain in his head, and in a few hours his mind was flying from one thing to another, and so continued during his sickness.— His sufferings were so severe, and his mind such that he could not have given you any satisfaction.”
If this be credited — if what this lady says, who was thus speaking against her own interests be correct, and this old man during his last illness, from mental infirmity, was incapable of giving to his daughter the satisfaction of his dying blessing, we are constrained to admit that it furnishes a case, which unless there was very strong evidence to the contrary, would justify the sotting aside of this last will and testament.
On the whole, our conclusion is, that the preponderance of [313]*313testimony in favor of the will is not so great as to authorize our interference with the verdict.
Let the judgment be affirmed.