Lucas v. Parsons

27 Ga. 593 | Ga. | 1859

Lead Opinion

By the Court.

Lumpkin J.

delivering the opinion.

[1.] The great question made by the record in this case, and the one chiefly argued by counsel on both sides, is, whether the Court below erred in refusing .to grant anew trial on the Sth ground, in the motion for a new trial, “because the very diet was contrary to the law and evidence, and decidedly' and strongly against the weight of evidence.”

The evidence is voluminous, and the witnesses give different opinions, as to the capacity of the testator at, and about the time of the factum of the will, but the main current of facts in relation to the testator’s “ mind and habits, and affections,” seem to be very well agreed on by nearly all the principal witnesses on both sides. The evidence makes us distinctly acquainted with the testator as far back as twenty years before the making of the paper here set up as his will, and there is some evidence going much further back, but it is unnecessary to consider it. Prior to the winter of 1853 and 1854, the testator was a sane man; after that time, it is conceded by the propounders, that he became deranged, at least a lunatic. The propounders insist, however, that he was restored to his reason, or at least had a lucid interval, en the 2d day of April, 1855, and this is denied by the caveator, and this is the main issue.

Before the loss of his reason, Dr. Hall says he was “ a clear headed, discriminating person in ordinary business matters, respectful and decent in his deportment.” All the witnesses who speak on this point, corroborate this statement. He was a practical, thriving business man, careful with his property, very successful in farming, and. in the use of money; he was a drinking man, and sometimes drank too much; and when drinking fond of jesting; “ but he was never irrational,” “never indecent in his deportment,” never substituted “imaginary things for facts,” even when he had drunk too much. “ He was just as hard to trade with under the influence of liquor, as at any other time.”

. He had great domestic troubles; he and his wife did not live happily together; her temper was unfortunately affected by a hysterical disorder, but this kind of life was not uniform and continuous; there were times when her temper gave way, and then there was greater harmo^r in the household. At times, they did not speak to each other, nor did they room together. He often complained of his hardships in these respects, and declared his domestic troubles drove him to drinking. A poor, but common refuge in such cases. Many other evidences of unhappiness are stated in the record, which I need not repeat. He had two daughters ; one married Elza Holsten, and the other married James M. Parsons; neither married to suit him. The last, especially, married clandestinely, and very much against his will; for sometime after this marriage, the witnesses say, the testator “hated Parsons;” afterwards he said he would make the best of it, and some of the witnesses say “he came to respect Dr. Parsons;” Holsten, he declared, was not of much force any rvay. It is very clearly shown, that always before his insanity, Littleberry Lucas declared, neither of these men should ever have his property “ if he died in his right mind”

The testator had one son, the caveator in this case; in this son, and his fatuity, this old man seems to have found all his happiness. Onr brother Hill speaks of this son as the old man’s cloud by day, and pillar of fire by night,” and even our brother Trippe, the counsel for the propounders, admits .that Cincinnatus M. Lucas “was at once the old man’s Reuben and Benjamin.” .With a force which a glad father’s heart alone could express, the testator was in the habit oí declaring that “Nat, his son, was all a father’s heart could wish.” After a careful examination of the evidence, we-must admit, that none of these eulogies can be called extravagant. As a natural result, this son had all his father’s confidence. He kept his money and notes, attended to all his business, “ helped him to make what he had,” and it seemed to be the father’s delight to do just as his son said. He bought a new secretary for the safe keeping of his papers,, and had it carried, not to his own, but to Nat’s house. If a. neighbor came to borrow money, he sent him “to Natty;” if cotton was to he sold, or an overseer employed, or anything else done, “ Natty” must do it. The wisdom of this, confidence is seen in the result — the old man continued to> grow rich. With this clear head, and these fixed affections, old Mr. Lucas, sometime before 1845, called on his neighbor, Mr Lester, to write his will; it was very carefully prepared. The testator and the scrivener, at the instance of the first, sought a retired place, and Mr. Lucas had his plan for disposing of his large estate, all arranged; he gave his wife a competency; he settled upon his daughters, portions for life, remainder to their children; he gave Cinc.innatus’s sons.a special legacy “to perpetuate his name,” as he said ; he gave his faithful old negroes, “ who had worked with him, and through the heat and burthen of the day,” to his son, for “Natty would take good care of them;” he stated to Mr. Lester his reasons at the time, for so making his will, and for giving his son’s family the advantage, and they are in strict accordance with the facts above stated; “ it was a rational act, and rationally done.”

Some time after this, he bought a plantation west of Flint! River, and put certain negroes on it; this he did for his son’s “ boy children ;” he bought it for them, and gave it to them, and ofteu spoke of it, and gave his reasons for ir. Many of the witnesses detail many facts showing the old man’s fixed purpose in this regard. To fix this property on Nat’s boys, as a gift from their grandfather, in token of his affection for them, and their father and mother, “and to perpetuate his name;” he destroyed the will drawn by Mr. Lester, and on the 7th day of July, 1845, made another; this will was also made with great care ; it was drawn by his confidential attorney, is elaborate, and well planned, and precisely as the ■one described by Mr. Lester, with the exception of the ■change of legacies to the children of his son. At this time, Littleberry Lucas lived in Monroe county; in 1847, he aplied to the Legislature to change the county lines, so as to include him in the county of Crawford, stating in his sworn ■petition for this purpose, that he had made his will, that his son was appointed his executor; that most of his lands and property lay in the county of Crawford, where also his son Hived, and for the convenience of his son in executing his will, he wished to be placed in the county of Crawford; ¡theLegislature granted his petition; afterwards, at the session of 1851 — ’52, an Act was passed repealing generally the former Acts changing the county lines, and this placed Lititleberry Lucas back in the county of Monroe; to the very next session of 1853-’54, he sent his petition to be placed back again into Crawford county; he asked Col. Hunter to assist Mr. Culverhouse and Ray, in getting this bill passed, as he was thrown back into the county of Monroe, against Iris wish, and wished to be placed again in Crawford, for the convenience of his executor; this bill was also passed, and approved the 13th day of February, 1854; he also became dissatisfied with some decisions of this Court, because he had understood they conflicted with the settlement of his daughter’s; he brought his will to his lawyer, Col. Hunter, in the fall of 1853, as Col. H. recollects, for examination in this particular, and when informed that his will did not conflict with the decisions of the Supreme Court, he expressed himself pleased, and again expressed his particular satisfaction with these portions of his will, and repeated the same reasons for them which he had given so often before. Up to this period, and to these points, the testimony is clear, strong, and unbroken. By the will of 1845, he gave his money and notes, to his son Cinciunatus; some three of the witnesses think he expressed a dissatisfaction with this portion of his will before his derangement; Mr. Banks says he spoke to him to write a new will on this account, in May, 1853, but did not say how he would make it otherwise, and never appointed a time to attend to it. Mr. Woodward and Mr. Jackson also spoke of hearing similar remarks before his derangement, but they are not certain as to the time. Admissions and casual remarks, unless well remembered, and distinctly repeated, furnish very weak evidence.

We know the human memory is at fault, in nothing more than dates, unless particularly charged to remember them.

Most clearty, therefore, the will of 1845 contained and represented the testamentary intentions of Littleberry Lucas, when sane, and admitted, on all hands to have been sane. The time when Mr. Lucas became insane is not definitely fixed; Dr. Hall, an experienced physician, discovered some symptoms of it, he thinks, as far back as shortly after 1850; he was getting quite old — near the period allotted for man to live; his insanity was doubtless produced by a combination of causes; the manifestations of the malady of madness were numerous, and unmistakeable; we will mention some of the more prominent, for the purpose of tracing with more certainty, the evidences of his condition on the 2d day of April, 1855.

With a few immaterial exceptions of opinions to the contrary, it is conceded by all, that this old man had not his-reason in 1851; lie lost all sense of decency in the presence of ladies; he was untruthful; he offered a young lady $200, and when she refused to receive it, he was about to burn it in his pipe, and was only prevented by her consenting to take it; he was traveling over the country declaring his wife was dead, and he wanted to marry again; addressed several ladies; offered to buy a wife, at prices varying from small sums, ora lew negroes, op to $30,000; he declared he could buy a wife, and would do it; (was this madness ? Quere;) when corrected in any of his wild notions, he would get angry, and insist he was right; he insulted his own sister-in-law, at her own table; was offering to sell his negroes at times, for the wildest prices, and then for almost nothing; all the family united in having him declared non compos; and in haying a guardian appointed under our statute; accordingly, a commission was sued out, on the 30th day of June, 1854, he was declared an insane lunatic from age and disease, and incapable of managing his own affairshis son was appointed his guardian; his affections entirely changed; he took up with Parsons and Holsten, and his hatred for his son was the most intense; he would curse him as the d--st rascal, and rogue, and fool, that ever lived ; charged him with stealing his will, and his property, and declared he intended to make a will, and cut him off with $5,as being all the law allowed him. All these manifestations of insanity are testified to by many witnesses ; pages could be filled with his sayings and doings, illustrating this sad condition.

Was he restored, or at least, did he have a lucid interval when he executed the paper propounded ? It is scarcely possible to be too strongly impressed with the great degree of caution necessary to be observed in the examination of the proof of a lucid interval. White vs. Dwyer, 1 Ecc. R. 46. In cases of insanity proper, this proof is often matter of extreme difficulty, because the patient so affected is not unfrequendy rational to all outward appearance, without any real abatement of his malady, so that in truth and substance, he is just as insane in his apparently rational, as hois in his visible raving fits. Brogden vs. Brown, 2 Ecc. R. 369.

'filíese considerations render it, necessary for the Courts and juries to roly but little upon mere opinions, but to look at the grounds upon which opinions are formed, and to be guided in their own judgments by facts proved, and by acts done, rather than by the judgment of others. Kinleside vs. Harrison, 1 Ecc. R. 296; 1 Williams on Executors, 2d Am. Ed. 18.

When general lunacy is once shown, it is not sufficient in order, to establish a lucid interval, to show merely a cessation of the violent symptoms of the disorder, but a restoration of the faculties of the mind, sufficient to enable the party soundly to judge of the act. Hall vs. Warner 9 Ves. 611.

Was Littleberry Lucas so far restored as to be able to comprehend the condition of his family and property, to remember his affections, obligations, and former testamentary intentions ? Was he relieved of his delusions in regard to his son, or did he act on these delusions?

After a careful examination of the facts proved, and acts done, we find every exhibition of insanity existing in 1854, continuing in 1855, and many of the most palpable evidences of such insanity shown in this record, occurred in 1855 — many of them a short time before, and many a short time after the 2d day of April, and on that very day, we find several strong “ soundings to folly,” declared by the authorities to be proof) in spite of apparent calmness, of the continuance of the malady.

Let us state a few clearly proven instances, as samples of many in this heavy record. Dr. Hall says: “ I had a meeting with him, (L. Lucas) I think in March, 1855, a short time before the April Term of the Court of Ordinary, for the purpose of bringing about a reconciliation between him and his son; I asked him in the street, if he had, been to see Nat; he said no, that he had as soon go to hell as to go there; that Nat was a damned rascal, and a damned rogue, and made use of the most violent and abusive terms.” Dr. Hall attempted to reason with him,and correct his mistaken imaginations about Nat’s conduct, when “he renewed his buse of his son in such a violent and abusive manner, that concluded he was still laboring under his derangement;”' “he was sober at the time, and the indications of insanity 1 allude to, I did not think the effects of drink operating at the time, or produced by liquor recently taken.” George Rosseau, a brother-in-law to Littleberry Lucas, says, “he also visited my house in 1855; while here he said a man that was not worth $70,000, ought to be kicked out of hell; lie also said he did not know whether there was any hell or not, and he be damned if he was going to trouble himself about it. There was a quilting at my house while he was here, and when the quilt was finished, he proposed to a lady of as much respectability as any in this, or any other county, that they would wrap up in the quilt, and go to bed : this was said in the presence and hearing of several persons, and I should not have allowed him to stay in the house, but from the fact that I regarded him as an insane man ; fie did not drink any spirits while here the last time, nor did I consider him drunk when he came here.”

William, II. Griffith says, that the “ latter part of March, or early in April, 1855, he had a conversation with L. Lucas, in which he spoke of Nat as a rogue, a rascal, and the most hateful of men; said Nat pretended to have some Court papers giving him his property; that he knew all about such papers, and that Nat could tear them up if he would; that he and Nat could agree, and put them out of the way, and he wanted Nat to do it, but he would’nt, damn him; no such rascal shall ever have anything I have got; he shall come to the plough, damn him.”

Samuel P. Corbin says: “A man had died, and been put into a metallic coffin; the coffin was brought to my house, and Littleberry Lucas took a complete view of it, felt it, and knocked it with his knife — seemed amazed, and made many foolish remarks about it, illy becoming the occasion; he then said, “when I die, I want one of these things to be buried in ; the devil can never get a man when he is boxed up in one of these.” This was not said jestingly; he said it with a countenance as solemn as he ever wore . he seemed to speak it, as if he believed what he said. This was about the 1st of May, 1865; I saw him in March, and April, of the same year, and he was as crazy then, as at any time before, or after.”

On the very day of making the will, he requested J. M. Simmons, one of the witnesses to the will, to tell “his brother not to send his note to Nat Lucas, that he intended! to have his business out of Nat’s hands;” and yet, when sane, and for years, no one else could be trusted with hiá business.” Woodward, another witness to the will says, that L. Lucas “ said, after he made his will, that if Nafe Lucas did not give him up his property, he would be damned) if he did not cut him off with five dollars; said so before.”*

John Anderson, a witness to the will says, he saw Mr, Preston, in Knoxville, on the day the paper propounded was: written. Mr. Preston’s depositions were read, and he says he saw L. Lucas in Knoxville about the last of March, or the first of April, 1855, and he further says, that deceased “called Nat many.ugly names, and cursed him dreadfully j he spoke of Nat as the most hateful of men; he found ift difficult to find words of sufficient force to express his spite5 he was then insane;” he said at Knoxville, in my hearing,, that he did not mean to give Nat anything, because he was the damnedest rascal he ever saw.

On the night of the very day he made the present will, he told B. F. Pritchard “ he intended to make a will, and do as he pleased with his property.”

Mr. Knott says, “ In the Spring of 1855, while L. Lucas was in Macon, he told me he had been offered 14 cents for his cotton, which was about 4 cents over, what any other cotton would have brought that day, and during the same day, speaking of the birth of children, said he recollected well when the granny came to his birth ; some one told him he must be mistaken; he said, oh no, he was not.”

A. W. Wyche was present at the time spoken of by Mr. Knott, and was the man who asked deceased,if he was not joking Lucas said “ no, and then reaffirmed it to show the strength of his memory. Pie went on further to say, in the same -earnest manner, that he remembered when the granny entered the room when he was born, and he described her, how -she looked, &c.” Both these witnesses examined closely to see if he was under the influence of liquor, but both became satisfied that he was not, and that he acted and talked as a crazy man, and not as a drinking man. Previously when sane, he had always gone to Macon with his son, and did just as he said. Now, at the time alluded to, Dr. Parsons accompanied him, and on that same day, deceased said “ he had more sense in his little finger than Nat had in his head, and •he cursed him for a damned rascal, and a damned fool, &c.”

In May, 1855, he offered to give in his property to the Receiver of Tax returns in Taylor county. He had about sixty negroes there, but represented them as about 43 ; insisting that small ones who did not work, should not be givet\ in. He had a good plantation of about 1000 acres, and this with the 42 negroes, he valued at about ($2,700) twenty-seven hundred dollars. The sensible Tax Receiver would not allow him to swear to it, because he thought him crazy. This is testified to by three witnesses, who say he was not drunk at the time, but crazy. If he had sworn to this valuation, would any jury on earth, have found him guilty of false swearing? His son returned the same property at near $40,000.

“Facts proved, and acts done,” showing this condition of mind, are multiplied by more than a score of witnesses which need not be, and cannot be repeated. They cover the whole of the year 1855. The danger of relying upon opinions in a case like this, as wisely remarked by Sir John Nich«11 as above quoted, is strongly illustrated in this case.' For the witnesses who think he was rational, give it as their «pinion, that he was sane, having no indications, of derangement, the whole of the year 1855; the very period when the facts testified to, occurred.j [Some of them say he was restored in the fail of 1854, and one or two intimate, as their opinion, that he never was deranged. Some people seem to think a man is not crazy unless he is frantic. That Mr. Lucas was often calm, and quiet, and loaned money to Mr. Jackson on one occasion, and shaved a note for Dr. Simmons, on another, and did so with apparent reason, we do not doubt. Many lunatics, and deranged men have done many things requiring much more thought, and judgment. Doubtless Mr. Huckaby honestly thought Mr. Lucas, was as sound as any man, when he sent for him to mend the harness, &c.; and that too, notwithstanding Mr. Lucas concluded he would himself “ tan the leather to mend the harness,” and Mr. Huckaby himself thought the harness were not worth mending at all.

The circumstances also, under which this paper was written, cannot help the propounders on the question of sanity. The deceased ^vas mad, excited because his son had continued the application to revoke the letters of guardianship. The will was made in the Courtroom; no deliberation, no plan arranged, no good feeling for that son who was once all a father’s heart could wish a son to be; in every respect so different from the circumstances under which he had written aud prepared two wills before. To settle his daughters’ portions to their separate use, and “extend his property over to his grand children,” and make a special bequest to Nat’s boys, “ to perpetuate his name,” were always the cherished intentions of this old man when sane. They were the great features of two former wills. To execute this testamentary intention, he applied to two sessions of the Legislature, to place his residence in Crawford county, where his son, and executor lived. He became dissatisfied with a decision of this Court,because he heard it interferred with one of these provisions in his will. He never did, so far as the proof goes, abandon either of these intentions. He never, while sane, tolerated any other contrary intention. These were his great, his fixed, his life long testamentary intentions. The record of his sane moments is unbroken, and full of them. All his family and neighbors knew them. And yet when he executed the paper now propounded, it does not appear that he even recollected, either of these former purposes. Yet this paper defeats these cherished objects, and for only one recited reason of dissatisfaction with his former will — a dissatisfaction which could have been fully remedied by a codicil of five lines.

There is yet another view of this case which materially weakens the cause of the propounders. Even if Mr. Lucas probably had testamentary capacity, it is clear he was of weak mind. “ Unquestionably,” says Sir John Nicholl, in speaking of the will of one under commission of lunacy, t( there must be a complete and absolute proof that the party who had so formed it,(the will) did it without any assistance.” Cartright vs. Cartright, 9 Ecc. R. 51. We are not satisfied that the paper propounded is the free, and voluntary testamentary act of Littleberry Lucas. With such a revolution of testamentary intention while in the care of those benefitted by the change, and under such circumstances of suspicion, and weakness of mind, the law must have strong proof of both volition and capacity. Walker vs. Hunter, et al., 7 Ga. R., 414, Wynn vs. Robinson, 4 Ecc. R. 82; Brydges vs. King, Ib, 113; Ingrain vs. Tryatt, Ib, 191, 204.

The evidence in this case presents some strong proof of fraud, and significant .activity, to say'the least of it. The deceased was helped in various ways.

All the family wanted a “ trustee” appointed for him. Dr. Parsons was especially urgent, and thought Nat was the man who ought to be appointed. After Nat’s appointment, the propounders became the best friends of the deceased, and his special keepers. Dr. Parsons “ treated Littleberry Lucas, while in Lucas’ presence kindly, and as a sane man, but away from said Lucas, he treated him as an “ insane man.” He bid off land for the deceased at Smith’s sale. He, and Holsten helped the deceased to sell his cotton, over the head and wishes of his guardian. Dr. P. first applied to Col. Trippe to bring the rule nisi, to revoke the commission of lunacy, and was the active man in getting up the witnesses. It does not appear that either of the propounders made any effort to disabuse the father’s mind in regard to the conduct of his son. According to the old man’s ravings they were active in embittering him against his son.

Again, the old man is raving — anxious, apparently, to get the commission of lunacy revoked, but Parsons says to Col. Hunter, “ if C. M. Lucas will give up the old will no steps will be taken to revoke the letters.”

The'old man is raving, because under the old will, Nat is to get all his money, and notes, and says he wants to alter it for that reason. But Parsons^told C. M. Lucas, at Smith’s sale, in the presence of Woodward, “ if he would give up the old will he might keep the money and notes” In no case would the granting of the propositions of Parsons have accomplished the wishes of deceased, and yet he pretends to have acted for deceased. In February or March, 1856, the old man seems determined to move to Monroe county; (while sane, he was very anxious to die in Crawford.) It was a bad season of the year to get a place. The old man was very old, was bed ridden, and unable to move without assistance. But Parsons declared he would move him to Monroe, if he had to move him to a shelter. No other place being available, Holsten finally gives up the place he was living on in Monroe, and thither the old man is carried, to die. After this removal to Monroe, Holsten said he thought the new will would stand'. In the summer of 1856, another will was spoken of. Mrs. Peggy Lucas sent for Dr. Stephens, Dr. Searcy and Dr. Simmons to examine the old man and see if he was then competent to make a will. They met, and so pronounced him, and a time was appointed for the will to be executed by these physicians. This proceeding thus far was without the knowledge of Dr. Parsons. But before the day arrived to execute the will, he found it out. He, Parsons, told Dr. Simmons not to come, because the women had deceived him, that the old man already had a will. He then went to Foray I h, and told Dr. Stephens he need not come, as the old man was sinking, &c. He wrote to Dr. Searcy not to come, “ because Dr. Stephens would not be there.” Mr. Hollis heard the discussion between Dr. Parsons, and the women,on the subject of the will. Mrs. Lucas and Mrs. Parsons wanted a will settling the property on the daughter's, but Dr. Parsons was afraid it would affect the revocation. Dr. Stephens, on reflection, did go down on'the day appointed to write the new will, but no one was there but the old man, and the women. The old man was sleepy, and the women “ had concluded tobe satisfied.” We are not satisfied, either that the paper propounded was executed during a lucid interval, or that in the weak condition of the mind of the deceased, the will was not the result of undue influence. The burden was on the propounded, and the weight of the evidence is strongly and decidedly against them. We think the Court erred in not granting a new trial on this ground. For myself* I will say that when this case was up here before, my mind inclined to this opinion. After a full reexamination and argument, with the additional evidence, I do not, and cannot entertain a doubt on this point. 34 Ga. 21., 6S3.

But it has been insisted that the paper itself is sufficient evidence of sanity, because it divides the property equally. Cartright vs. Cartright, is relied on for this position. On examination, the will of Armyne Cartright will be found in every respect different from the one before us. That will gave all the property to one side of the house, and yet it was said to be natural. Why ? Because it was in strict accordance with the attachment of the deceased, and her testamentary intentions whilesane. This is not pretended for the will of Littleberry, Lucas. Miss Cartright wrote her own will alone, and there was absolute proof of absence of fraud, and undue influence. The very essence of a will is the wish of the testator. His affections, therefore, rather than apparent equality, is the true test of a natural will. According to the judgment and feelings of Littleberry Lucas, for many years of his sane life, a will equal on its face was not equal in fact, and did not represent his wishes. In Cartright vs. Cartright, Sir William Wynne said, “ it was a proper and natural will, and conformable to what her affections were proved to be at the timeP Where is the slightest evidence in this whole record, that Littleberry Lucas ever did for a moment change his affections and intentions as represented in the fourteen first items of the will of 1845 ? Was notone of the very last acts of his sane life a solemn reaffirmance of that whole will ?

[2.] During the progress of the trial, and while Col. Trippe was on the stand, the caveator’s counsel sought to prove by him the submission to propounders by caveator, of the following proposition to compromise the case, viz: “ I propose to J. M. Parsons and Elza Holsten to divide with them equally the money, and notes, and negroes, given me by my father’s will, executed, in July, 1845, provided they will agree to divide with me equally at my mother’s d ath, the share which she takes in the same will. This proposition to be accepted or rejected in ten days. Oct. 6th, 1855.” Signed, by C. M. Lucas. The caveator’s counsel further staled to the Court that they expected to shew that Parsons replied to this proposition as follows: “If this proposition is accepted will the old will be set up ?” Col. Pinckard said “ yes, except so far as it is annulled by the terms of the proposition.” Then Parsons replied, “ do you think I would accept sucha proposition as that,” and rejected it. The only purpose of introducing the proposition was to make the reply intelligible, and the object of proving the reply, was to show that the propounders were not opposed to the old will of 1845, because the money and notes were left to C. M. Lucas; the ground which caveator insists was always put in the mouth of deceased while deranged, but because of the settlements to the separate use of the daughters, and the special legacy to C. M. Lucas’ children. The Court rejected the evidence on the ground, that it was enabling caveator to manufacture evidence for himself. We do not see how caveator manufactured the reply of Parsons, and that is the real evidence sought.’ Our brother Trippe is very indignant, because the proposition does not include Mrs. Lucas. A sufficient reply to that is, that Dr. Parsons did not reject it for that reason, and his reply is the real evidence sought.

The evidence proposed, is the sayings of a party to the record, and is certainly good against him, and against all, who, with him, seek to set up a paper which the caveator alleges was fraudulently procured. We think the evidence was admissible, and reverse the Court below, also, on this ground.

Judgment reversed.

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Concurrence Opinion

Benning J.

concurring.

The Court are unanimous, that all of the decisions complained of, except two, ought to be affirmed. As to those two, they are not unanimous. Judge Lumpkin and myself, thinking, that those two were erroneous, Judge McDonald thinking, that they were not erroneous. The opinion of the Court, on all of the decisions complained of, except those two, will be stated by Judge McDonald.^* I shall therefore, confine myself to those two.

Of them, the first is thus set forth in the bill of exceptions: “ While R. P. Trippe, Esq., was on the stand under cross examination by caveator’s counsel, caveator offered a paper, to be used in evidence, purporting to be a compromise in writing, made by him to James M. Parsons and Elza Holsten, two of the propounders, and asked him, if that paper was not submitted to him by one of the counsel for caveator, as a compromise, and which paper was in the following words, viz: “I propose to J. M. Parsons and Elza Holsten, to divide with them, equally, the money, and notes, and negroes, given me by my father’s will, executed in July, 1845, provided, they will agree to divide with me, equally, at my mother's death, the share which she takes in the same will— this proposition to be accepted, or refused in ten days. October 6th, 1S56,”

“The paper was objected to by the counsel for propounders. Counsel for caveator in his argument before the Court, on this objection, stated, that he expected to prove by another witness, what Dr. Parsons, (one of the propounders,) said in reply to that compromise.” And what Dr. Parsons said in reply to it, was as follows — “If this proposition is accepted, will the old will be set up?” . Col. Pinckard, replied: “ Yes, except so far as it is annulled by the terms of the proposition” — Parson’s replied: “Do you think I would accept such a proposition as thatand rejected it.

The Court rejected the evidence, and that is the decision complained of.

The question, therefore, is, was the decision right ?

In other words, was the caveator entitled to have before the jury, Parsons’s reply to the proposition?

The will of 1845, made provision for the wife and children of Parsons, but made none for Parsons himself. The reply of Parsons betrays extreme hostility to that will. The property which C. M. Lucas thus proposed to divide with Parsons and Holsten, was valuable, amounting, according to some of the testimony, to, as much, I believe, as forty thousand dollars, yet Parsons’s repugnance to the old will was so great, that he preferred to reject a third of this property, and stand the chances for establishing the new will.

It is true then, that his hostility to this old will, was extreme.

Was it competent in the caveator, to show, that Parsons entertained such a feeling of hostility to that will? The answer to this question, depends on whether that fact would, or would not, be material to any of the issues.

Among the grounds of the caveat, are these two; that the new will was obtained by the propounders, by undue influence ; that it was obtained by fraud. Parsons was one of the propounders. Among the issues then, were those of undue influence and fraud, in Parsons. Now, whatever was material to these, two issues, was admissible in evidence-And it was, certainly, material to those issues, whether Parsons had, or had not, a motive or cause, for resort to undue influence or fraud; as, it is material, on an issue of murder, whether the accused had, or had not, a motive to kill. True, in this last case, the mere existence'of the motive, (hate or .friendship,) is not sufficient to establish guilt or innocence — • ■ but, still, it is a fact material to the issue of guilt or innocence. So, although, it may be true, that the mere existence in Parsons of a motive for a resort to fraud or undue influence, would not be sufficient to convict him of fraud or undue influence, yet it would equally be a fact material to the issue, whether he was, or was not, guilty of the fraud or undue influence. It would be a fact, which, though, not sufficient of itself, to establish guilt or innocence, might be sufficient, with other facts, to do so.

If then, there existed in Parsons, a motive for the use of fraud or undue influence, it was a fact material to the issues as to fraud or undue influence, and therefore, was a fact admissible in evidence on those issues. And, of course, any facts going to show this fact; that is, going to show the existence of this motive in Parsons, would also be admissible.

Now extreme hostility in Parsons, to the old will, would be a fact going to show a motive in him to resort to any means, not excepting fraud or undue influence, to get rid of that will. Therefore, any fact going to show this hostility in him, would be admissible as evidence. His reply to the proposition for a compromise, was a fact going to show this hostility. A

My conclusion, then, is, that (his reply was admissible as evidence. Of course,-I think, that the proposition ought logo with it, to make it intelligible. What it would be worth, when admitted, would depend on what other facts were in evidence. By itself, it would not be suflicient, to establish fraud or undue influence.

The other of the two decisions, is, the decision that the verdict was not decidedly and strongly, against the weight of the evidence. In my opinion, this decision was erroneous. In my .opinion the verdict was decidedly and strongly, against the weight of the evidence. The evidence is voluminous, and it would take much more time,, than I have to spare, to give my reasons iri detail for this opinion. 1 will simply remark, that, as Littleberry Lucas had been found a lunatic by due judgment of a proper tribunal, which judgment was still in force when the new will was made, the onus was on those who propounded that will, to show, beyond a reasonable doubt, that he was not a lunatic at the time when he made that will. This I think, they were far from showing.

McDonald J. dissenting.

* The opinion of Judge McDonald here referred to, has not been furnished to me. — Reporter.