11 Ga. 337 | Ga. | 1852
By the Court.
delivering the opinion.
This case comes up on a writ of error, from the Superior Court of Elbert County, on exceptions taken at the trial of issues which came before that Court, on appeal from the Court of Ordinary of the same County, upon a caveat against the admission to probate of a certain instrument of writing, purporting to be the will of William Ward.
There are several bills of exception; some to the rejection by the Court of evidence offered on the part of the caveators, to impeach the validity of the instrument; others to a series of instructions given by the Court to the Jury, after the testimony was closed; and one to the alleged misconduct of the presiding Judge, after the Jury were charged with the case, and had retired to their room.
The first question we are called upon to decide, is as to the competency of the testimony of Dr. Edwin A. Jones. The witness examined the testator, as a physician, in November, 1849, and swore, that at that time, from old age, or some other cause, he was totally deprived of reason — “being what he would term an idiot.” It was previously proven, that his mental condition at that time was the same that it was in 1844, when the will was made. The evidence was objected to and excluded by the Court, on the ground that it was too remote.
Not so with a person who has come under the power or dominion of another, and whose firmness has at last reluctantly yielded through fear, until he is made to do that which his judgment and will, if free and unconstrained, would instantly repudiate.
Fraud and importunity are equally destructive of the validity of a will made under their influence. And so the Judge, in substance, instructed the Jury, in the conclusion of his charge, the whole of which must be taken together.
It is a curious fact and one worth noting, that in the speeches oflsaeus, the master of Demosthenes, ten out of sixty-four having been preserved, and which are the most ancient monuments extant of the kind, the orator urges the claim of
It is contended that the Court should have told the Jury, upon the question of insanity, that there must be mind acting regularly; and the will, in order to be setup, should be the emanation or result of that mind.
After the somewhat elaborate treatise on wills,’ published by this Court in 1849, for which Potts and others vs. House, was the text, or as some may have supposed, rather the pre-text, we had thought that we should not be called on again for an exposition of the phrase, “ sound and disposing mind and memory.” How vain the hope for any Court to entertain, that principles of law can be so stated as to bid defiance to the astuteness of counsel, against whose clients these principles operate. For myself I am free to confess that I utterly despair of ever furnishing a “ supplement” which will materially improve, much less supplant the original work, to which I have referred.
Testaments of chattels might, at Common Law, and by the laws of this State, be made by infants of the age of fourteen, if males, and twelve, if females. This was the English rule until the Statute of I. Victoria, by which the testamentary power of infants is abolished. It is the rule here still. This, by way of illustration, we will designate as the morning dawn of reason, or the break of day of the-mind, in legal contemplation. It continues to unfold and expand until it culminates to the meridian blaze of noon, when no suspicion is entertained of the competency and freedom to act of the testator. It then begins to go down until its disk disappears beneath the horizon. Still, there is the mellow glow of twilight, by which the testator is enabled to comprehend the contents, of his will — the nature of the estate he is conveying to his family connexion — their relative situation to him — the terms upon which he stands with them — his own situation, and the circumstances which surround him. These and like objects, although seen by the testator as through a glass dimly, by reason of the infirmity of age, or other causes, are still contemplated, not by the flashy, fitful and evanescent glare of the aurora borealis; but the steady, though subdued light and illumination of the “ glorious king of day,” although disrobed of his gorgeous and dazzling beams. The animus testandi, the soul of a will, animates the form of the instrument which he has executed.
Either the Court should have delayed making the call until the Juror had retired, and if necessary have dismissed him from its presence for that purpose; or what would have been better, the whole Jury should have been brought back into the box, and the charge reiterated to them, in the presence of the parties or of their counsel.
While we would not reverse the judgment, and direct a new trial on account of this irregularity, we cannot suiter it to pass without condemning the practice.