1 Shan. Cas. 258 | Tenn. | 1872
delivered the opinion of the court:
This issue, devisavit vel non, on a paper propounded as. the will of Amos Kirkpatrick, deceased, resulted in a verdict and judgment against the will. The court erred in permitting certain witnesses to state their opinions as to the testator’s mental capacity “to make a reasonable disposition of his property.” This was a mixed question of law and fact, and the very inquiry to be determined by the jury upon the facts. With certain qualifications the opinions of that class of witnesses are received as to .the soundness or unsoundness of the testator’s mind, but the question whether the particular phase of mental unsoundness deprives a person of testamentary capacity, is a matter for the exclusive determination of the court and jury. The law places the subscribing witnesses about a testator when he is making his will, to judge of and attest his capacity. They only, therefore, may state their opinions as to¡ the sanity of testator, without giving their reasons. The physician may state his deduction, as matter of professional opinion, from facts stated by others, or observed and stated by himself. Other witnesses must state facts, and upon these facts, observed by themselves, it has grown to be a practice to permit them to give their opinion, whether upon such facts they believe the testator to be of sound or unsound mind. From the state of the testator’s mind, to be ascertained from the facts and not from opinion, the jury is to determine the questions whether the testator had capacity to make a will. The rule is briefly stated thus: The witness cannot be asked a question the answer to which involves a matter of law as well as a matter of fact — as,
The judgment is reversed and the cause remanded for a new trial.