McCay, Judge.
1. In an inquiry like that disclosed in this record, sanity or insanity, it is dangerous to lay down any positive rules. There is not a man living who has not done acts which others pronounce insane; and, on the other hand, insanity sometimes eludes all ordinary inquiry. To say that delusion is *192the test of insanity, is itself contrary to some of the writers upon the subject, but to specify a particular delusion and declare that a test, would, we think, be an assumption by the Judge of the powers of the jury. As to the particular delusion mentioned in this request to charge, whilst, without doubt it is such an one as an insane person might well have, yet it is no uncommon thing for great lovers of money, as they grow old, to fall into it, and yet display in all their dealings a perfect comprehension of business affairs.
2. There is the same objection to the written request as to monomania. Whilst the principle covered by the words is , perhaps true, to-wit: “ that the delusion need not refer necessarily to the persons affected by the will,” yet it might mislead the jury to say to them that it is sufficient if it affect the property bequeathed.
We think-that all the truth in the charge asked, was covered by the charge as given, to-wit: It must appear that the will is not in any way the result of the delusion, or connected with it. The real object of inquiry in cases of this character is not so much to classify the mental condition of the testator, as to discover if the will speaks his real, intelligent intentions.
It seems to us that this is the great mistake of the plaintiff in error in this whole case. Modern writers upon the subject of insanity as a disease, include within their definition of the term many persons whom the law would punish as criminals if they violated the law, and whom the law would declare competent to make a will. The medical writers treat the subject as philosophers and as healers. The law inquires into it with the view of seeing how far society can afford to make insanity an excuse for crime, and at what point it is best for the general good, to say that a man shall not be allowed to make a will. The right to say who shall, after the death of the owner, have his property, is a right long held precious in the history of English law. A large majority of wills are made in the last hours of life, a time necessarily of pain, trial and disturbance. And it is a wise provision of the *193law that whilst it takes great precaution to prevent fraud and imposition, it does not withdraw the testamentary privilege until the reason itself be gone. It is a precious right, and one that should be guarded with jealous care, that the aged and infirm, the weak minded and eccentric shall have this security for care and attention on a sick bed. And it may be truly said, without any harsh criticism on human nature, that many a fired brain has been cooled by. gentle hands, and many a death bed cheered and watched over with kind care, which, but for this tender care of the law for this testamentary right, would have been neglected and deserted. Our Code, sections 2372, 2373, 2374, is in substance fairly given by the Judge in his charge to the jury. Nor is the law as laid down in the Code materially different from the rulings of this Court in Potts vs. House, 6 Georgia, 324. To make one incapable of making a will from insanity, he. must be “ non compos mentis,” there must be a “total deprivation of reason.” However old, feeble, weak minded, capricious, notionate he may be, if he “be able to have a decided and rational desire as to the disposition of his property,” he is not wanting in testamentary capacity. And in making the inquiry it would seem from the very words of the Code 'that attention is to be given, not so much to the state of the mind as an abstract philosophical or medical question, as to its capacity for the precise thing in hand. For a man may say and do things which a medical man would take as evidence of insanity, and yet it may be that he is nevertheless able to have a decided rational desire as to the disposition of his property.
3. Unquestionably this was an improper request. It is not for the Judge, but the jury to weigh the testimony. Whether any particular fact, if proven, is strong evidence of insanity or not, is strictly a question of the weight of evidence. And if evidence be competent, not immaterial, it must from the very nature of jury trials be for the jury, and not the Judge to say how much weight is to be given to it. We see no objection to this charge as to the right of a man to cut off any or all of his children if he see fit. It is true in fact that *194this is the law. And we see no harm in thus informing a jury that a testator is free to do as he pleases. The words used by the Judge as to the meaning of the words “sound and disposing mind,” are taken from the decisions of this Court in Potts vs. House, 6 Georgia, 324, and are nothing but the common language of the books upon the subject.
True this charge was not applicable to the issue of monomania. But the caveat went not only on monomania but insanity generally. It was the duty of the 'Judge to charge on the issues made. Nor could this charge mislead the jury, ■for he distinctly charged also and in full, on the law of monomania. As to the newly discovered evidence, what is it but other facts of the sayings and doings of the testator, of which the record is full. Doubtless, more still can be found. The evidence is strictly cumulative. There is a great deal of the same kind of evidence in the brief,, and it is evidence exactly within the formal written issues that were tried. There is a limit to the indulgence the public gives to suitors. They have time given to prepare their cases. It is their duty to search all the probable depositories of the facts, and if they go to trial and lose, they cannot ask the country to give them a new hearing because they have found more facts of the same general tenor bearing upon the issue. The evidence discovered must be such as most probably would change the verdict. We cannot say that is so in this case. All these witnesses can prove may be so, and yet this verdict be right. We do not intend to go into an analysis of the evidence. We do not say the verdict is demanded by the evidence, but we do say that, in our judgment, a fair minded jury might come to this very conclusion, and not be open to the charge of prejudice, passion, corruption or mistake. We have no power to interfere with the judgment refusing a new trial, unless the verdict of the jury be illegal, and the judgment of the Judge exercising his legal discretion be also illegal.
Judgment affirmed.