52 Ga. 169 | Ga. | 1874
As respects the exceptions of the plaintiff in error to the refusal of the judge to charge the jury, upon-the effect of certain testimony, and as to the rules for weighing the testimony, we see no serious error. We think the judge was right in refusing to tell the jury that the existence of lunacy in the daughter afforded a violent presumption that the mother was also insane. It was a circumstance to be considered by the jury, and that is all. Perhaps, too, the judge was wrong in saying that such a proposition was contrary to common experience. That, too, was matter for the jury and not for the court. We find no fault either with his refusal to say that if insanity is once proven, it is presumed to continue until its non-existence is made out by proof equally strong. All that is true of this proposition is, that insanity once proved is presumed to continue until the contrary state is shown by satisfactory proof. It is not true that such proof must be as strong as was the proof of previous insanity. So, too, in the question of general insanity, the facts pro and eon are positive testimony. If one man sees conduct indicating insanity, and another sees at another time conduct indicating sanity, both witnesses give affirmative testimony. Perhaps, in questions of monomania, as the delusion only developes itself when the subject arises, the witness who sees the party when the subject of the monomania is before him, may be considered as giving positive testimony, whilst one
1. We think this was the probate of a will in solemn form as to Mrs. Evans. It seems to us absurd to say that after all this immense labor the result is only to have the will proven in common form, which the Code says, in terms, is conclusive upon nobody. The petition to the ordinary would have accorded better with the practice in this state had it formally called on the executors to prove the will in common form, though the case of Garther’s will, where the motion was exactly like the present, shows that this practice is not uniform. In England the form is very much like that adopted in the present case. It is spoken of as Galling in the probate: See Hayle vs. Hasted and Pearson, 6 English E. Reports, 313. And the Code, section 2424, contemplates “ setting aside” the probate in common form. We think that when the heir-at-law calls upon the executor to show cause why the probate in common form should not be set aside, and sets forth grounds attacking the integrity and validity of the will, that this is substantially a call for probate in solemn form, and especially is this true if the executor accepts the issue, and undertakes
2, 3. We think, too, the court erred in charging the jury that after the factum of the will was duly proven the burden
I am not, myself, prepared to say that the general doctrine of the law as to sanity is to be entirely disregarded. Undoubtedly sanity is the normal condition of man, and if, on an examination of the circumstances attending the execution nothing unusual appear; if the testator appear to be aware of what he is doing, and acts as sane men do, I am of the opinion that a prima facie case is made out, at least that a verdict for the will would be justified, if, when the facts are detailed, the act as done is done as sane men do things — as if a man ask a witness to attest his will, and the witness do so on its being signed by the testator — the very act of signing, intelligently, is a sane act. Unless, indeed, it appear that the testator was previously insane, when the other rule, to-wit:
4. It was, in our judgment, a serious error in the judge to charge the jury as he did, with regard to the effect to be given by them in their consideration of the case to the dispositions of the will, and to say to them that if the desire to provide for the poor child who gets a lift estate under the will was a natural and just one, it was no concern of theirs to enquire whether the mode she took was a wise and proper one.
The general rule in questions of the character made by this record, the reasonableness or unreasonableness of the dispositions of the will is a prime element for consideration : Clark vs. Fisher, 1 Paige, 171. And such is undoubtedly the rule of common sense and just reasoning. We judge men just this way in all the issues of lift — an insane act is proof of an insane mind; an unreasonable, foolish act, is the ordinary and usual proof of a disturbed mind. And this rule seems in a general way to be admitted by the charge. But the qualification put upon it, as it seems to us, takes away its whole effect. “Although the testatrix was a monomaniac as to her excluded children, even then, if her desire to provide for the idiot child be natural, the mode she takes to provide for that child, however foolish, unreasonable, insane it may be, is not for your consideration.” Why not? If the provision itself be a foolish and unnatural one; if it puts this very darling in strange hands and under unnatural influences, if the very provision be itself an unreasonable and unnatural act.
We" do not intend to pass upon the weight to be given to
Judgment reversed.