39 Miss. 17 | Miss. | 1860
delivered the opinion of the court:
This case stands before us as on appeal from the verdict of a jury, on an issue in the Probate Court to test the validity of the will of Joseph Kelly, deceased, mainly on two grounds:
1. Because it was obtained by fraud and undue influence.
2. Because of the mental incapacity of the testator.
These are questions of fact, submitted to the investigation of the jury in the court below, in contemplation of law, upon a’full and fair examination of all the witnesses on both sides.
Upon principles well settled in this court, their verdict will not be disturbed here, unless it is manifest from the whole
We have carefully examined the able and elaborate arguments of counsel, as well as the great volume of testimony before us, to ascertain whether the verdict in this record is clearly wrong in view of the evidence; and we feel assured by that examination that there is no error in this respect which it would be the province of this court to correct. The most that can be said on the part of the appellants in relation to the testimony is, that it is conflicting, and in such cases it is the peculiar province of the jury to weigh the evidence and give credit to those facts and circumstances which in their judgment are entitled to the greatest consideration. The law has wisely imposed this delicate and responsible duty on jurors, and it is not for courts (in such cases) to rejudge their judgment.
That the issue was in fact submitted to the probate judge “ in lieu of a jury,” by mutual agreement, does not change this result, as his judgment, under the agreement, must have the force and effect of the verdict of a jury here.
The only error in law assigned, so far as we are able to ascertain from the arguments of counsel, (no assignment of errors appearing among the papers submitted to us,) is, that the testimony of Miller — the devisee, legatee, and executor under the will — was allowed over the obligations of appellant.
On this point it is urged that inasmuch as by our Code (p. 434, Art. 45) a devise or bequest to a subscribing witness to a will is declared to be void under certain circumstances, that any devisee or legatee, whether a subscribing witness or not, is incompetent to testify when called to support a will in his favor.
There is certainly no force in this objection. The article relied on does not make even a subscribing witness incompetent to testify, but removes his interest by declaring the devise or bequest, under circumstances, void as to him. This article is a substantial, if not a literal, copy of the twenty-seventh section of the Act of 1822, Hutch. Code, p. 651; and having been adopted in the New Code at the same time with the provision taking
In giving effect, therefore, to the Act of 1822, (now Article 45, p. 484, New Code,) it will not be extended beyond its term so as to interfere with the provisions of Section 17, p. 510, New Code, farther than its language requires. Miller is not, therefore, an incompetent witness under our laws, and was properly permitted to testify.
Let the judgment be affirmed.
Note. — This case was reported by F. M. Aldridge,, Esq.
