85 Va. 546 | Va. | 1888
delivered the opinion of the court.
This is a controversy' respecting a paper writing, dated August 18th, 1884, purporting to be the last will of Wm. Tucker, deceased, late of Amherst county, propounded as such by John S. Sandidge, who is named therein as executor.
The facts necessary to correctly outline the case are these: Wm. Tucker, the decedent, departed this life on the 23d of August, 1884, seized and possessed of a considerable estate, real and personal, supposed to be worth some $10,000. He had been twice married; and has left surviving him his second wife, Ann, and numerous children, the issue of the two marriages. By his first marriage he left the following children, to wit: Millie Ann Tucker, Susie Tucker, Bettie, wife of Johnnie Tucker and Sophia, wife of John Story. The children left by the second marriage were Oallie Tucker, Emma, wife of L. Miller, Nannie (a granddaughter), wife of Erastus Watts, Charles Tucker, James Tucker and Lucy Tucker, the last two being infants.
On the 13th day of September, 1884, John S. Sandidge, the person named as executor in the alleged will, in the county court of Amherst, offered said paper for probate, which is as follows:
“ I, William Tucker, of lawful age and sound mind, do make this my last will and testiment, revoking all others, in words and figures following, to-wit: First, I desire all of my just debts to be paid, if any. Second, I give to my beloved wife, Ann Tucker, two hundred dollars, to be paid out of my estate. Third, I givé to my four daughters, by my first wife, Millie Ann Tucker, Susie Tucker, Bettie Tucker, wife to Johnnie Tucker, Sophia Tucker, wife to John Story, all my estate, real and personal; after taking out what I give to my daughter, Millie Ann Tucker, extry; Fourth I give to my daughter, Millie Ann Tucker, all my bonds, money and tees ; fifth, I desire that my daughter, Sophia Tucker’s interest, wife to John Story, he left in trust, and I appoint John S. Sandidge trustee for said daughter;
Given under my hand this the 18th day of August, 1884.
Witness: Wm. Tucker.”
S. A. Love,
O. T. Smith.
Whereupon Oallie, L. Miller and Emma, his wife, Erastus Watts and Nannie, his wife, Charles Tucker, James Tucker and Lucy Tucker, who are the appellants here, were, on their motion, entered as contestants of said paper so offered for probate ; and the court, on his motion, appointed said propounder, John S. Sandidge, curator of said decedent’s estate; and he entered into the required bond, with surety, and the cause was continued.
At the November term, 1884, of said county court, .the cause was heard, when the court, on consideration of all the evidence offered on both sides, and the arguments of counsel, decided that-said Wm. Tucker, deceased, at the time of executing the writing aforesaid, purporting to be his last will, was of sound and disposing mind and memory, and that the said writing being proved by the oaths of S. A. Love and C. T. Smith, the subscribing witnesses thereto, ordered the same to he recorded as the true last will and testament of the said William Tucker; whereupon the contestants, Callie Tucker and others, obtained an appeal from said decision to the circuit court of said county of Amherst.
At the April term, 1886, of said cii'cuit court, the cause came on to hearing, when, it being suggested that two of the appellants, James and Lucy Tucker, children of said Wm. Tucker, were infants, on motion, the court appointed Mary Ann Tucker
The jury at the trial having heard all the evidence on both sides, and the arguments of counsel, returned the following verdict :
“We, the jury, find that the paper writing, dated the 18th day of August, 1884, and offered for probate as the will of Wm. Tucker, deceased, is not the true last will and testament of Wm. Tucker, deceased. ” And thereupon John S. Sandidge, the propounder of said paper, moved the court to set aside the verdict and grant a new trial, upon the ground that the same was contrary to the law and the evidence; which motion the court granted, and made an order setting aside the verdict and awarding a new trial; to which judgment, the appellants, said contestants, excepted, and in their hill of exceptions the court certified, not the facts proved, but all the evidence.
Upon the record thus made in the circuit court, on the application of said contestants, an appeal was allowed, by one of the judges of this court, from said judgment of the circuit court. But, on the hearing here, the appeal was dismissed as having been improvidently allowed, there having been, in said circuit court, no end of litigation and no final judgment from which an appeal would lie. See Tucker v. Sandidge, Curator, 82Va. 532.
When the cause went back to the circuit court, another jury was empannelled and a new trial of the issue had, on the 18th of August, 1887, at a special term of said court, and the jury, hy their verdict, found that the paper writing aforesaid was the true last will and testament of said Wm. Tucker, deceased ; whereupon the said contestants moved the court to set aside this verdict, because contrary to the law and the evidence, hut the court overruled the motion and gave judgment according to the finding of the jury, and the contestants excepted ; hut
The question for decision is, was the alleged testator possessed of testamentary capacity at the time of the execution of the paper propounded as his will ?
Before proceeding to examine the facts, it is appropriate first to advert to certain long settled and well recognized principles of law touching testamentary capacity.
The statute law of this Commonwealth provides that “ no person of unsound mind or under the age of twenty-one years shall be capable of making a will, except that minors eighteen years of age or upwards may, by will, dispose of personal estate; nor shall a married woman be capable of making a will, except for the disposition of her separate estate, or in the exercise of a power of appointment.” Code 1873, ch. 118, § 3. And as to the mode of executing wills, it is provided by tbe fourth section of same chapter that te no will shall be valid unless it be in writing and signed by the testator, or by some other person in his presence or by his. direction, in such manner as to make it manifest that the name is intended as a signature; and, moreover, unless it be wholly written by the testator, the signature shall be made or the will acknowledged by him in the presence of at least two competent witnesses present at the same time; and such witnesses shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.”
Such being the statutory requirements, we may with profit here reproduce the following extracts from authorities collected in the able and lucid opinion of Davies. J., in the leading case of Delafield v. Parish, 25 N. Y. R. 9, 22 (Redfield’s Am. Cas. upon the Law of Wills, 158), where, after stating the universally accepted doctrine, that competency to execute a testament does not exist unless the alleged testator has reason and understand
“ In the Marquis of Winchester case it is said that ' by law it is not sufficient that the testator be of memory, when he makes his will, to answer familiar and usual questions; but he ought to have a disposing memory, so that he is able to make a disposition of his lands with understanding and reason, and that is such a memory which the law calls sound and perfect memory.’
“In Mountain v. Bennett, 1 Cox, 353, the Lord Ohief Baron said: 'Two things must be made out, in the first instance, by those who support the will—the formality of the instrument and the sanity of the person making it; that if a party impeaching a will relies upon actual force being used upon the testator, it is incumbent on him to show it’; and he adds that ' there is another ground which, though not so distinct as actual force nor so easy to be proved, yet if it should be made out would certainly destroy the will; that is, if a dominion was acquired by any person over a mind of sufficient sanity to general purposes, and of sufficient soundness and discretion to regulate his affairs in general; yet, if such dominion or influence were acquired over him as to prevent the exercise of such discretion, it would be equally inconsistent with the idea of a disposing mind.’
“In Marsh v. Tyrrell, 2 Hogg. 122, that experienced and learned judge, Sir John Nicholl, said: 'It is a great but not uncommon error to suppose that, because a person can understand a question put to him, and can give a rational answer to such question, he is of perfect.sound mind, and is capable of making a will for any purpose whatever; whereas, the rule of law, and it is the rule of common sense, is far otherwise; the competency of the mind must be judged of by the nature of the act to be done, from a consideration of all the circumstances of the case.’
“ The observations of Erskine, J., in Harwood v. Baker, 3 Moore Priv. C. C. 282-290, * * * are worthy of note. He
“In Den v. Jackson, 2d Southard’s R. 454, the chief justice, in charging the jury on this point, said ‘that a disposing mind and memory is a mind and memory which has the capacity of recollecting, discerning, and feeling the relations, connections, and obligations of family and blood ; that, though it has been sometimes said, as had been stated from the books, that if one could tell his name, say the day of the week, or even ask for food, it is a sufficient evidence of a disposing mind ; yet such sayings, though they show that wills are not lightly to be set aside on suggestions of incapacity, can and ought to have but little weight with rational men, investigating the truth upon their oaths; that if, upon the whole, they should be of opinion that the mental powers of the testatrix were so far enfeebled and broken as that she could not make a discreet disposition of her affairs herself, and the will in question was devised by other
“In Shropshire v. Reno, 5th J. J. Marsh, 91, Robertson, C. J., observed that the facts in that case led the court to the opinion ‘that the testator had not a disposing mind, or that if he ever had, it was not in a disposing state. He was not superannuated, nor was he absolutely stultus or fatuus ; but all the facts combined tend to show that he had not a sound memory, nor sufficient mind, nor a mind in a proper state for disposing of his estate with reason, or according to any fixed judgment or settled purpose of his own. This we consider the true test, established not only by philosophy, but by law.’ Converse v. Converse, 21st Verm. E. 168, lays down the rule, that if ‘ the testator, when he made the will, was capable of knowing and understanding the nature of the business he was then engaged in, and the elements of which the will was composed, and the disposition of his property as therein provided for, both as to the property he meant to dispose of by his will and the persons to whom he meant to convey it, and the manner in which it was to be distributed between them, then he possessed a sound and disposing mind and memory.’ This rule was approved by Eedfield, J., who added : ‘ He must undoubtedly retain sufficient active memory to collect in his mind, without prompting, particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and be able to form some rational judgment in relation to them.’
“In 1828, Chancellor Walworth, in Clarke v. Fisher, 1 Paige, 171, said : ‘ The general principles in relation to the capacity of a person to make a will are well understood. He must be of sound and discerning mind and memory, so as to be capable of making a testamentary disposition of his property with sense and judgment in reference to the situation and amount of such property, and to the relative claims of different persons who are or
The authorities above referred to, and an indefinite number of others that might be cited, state with clearness and accuracy the almost universally acknowledged principles applicable to the subject of testamentary capacity. They do not attempt, on the one hand, the difficult, if not impossible, task of laying down any precise rule as to the exact amount of mental capacity essential to a valid will; and, on the other hand, they carefully avoid that other and perhaps more dangerous doctrine, which has sometimes been held, that any degree of mental capacity above that of the idiot and the lunatic is sufficient; but, appealing to unfettered human reason as the only safe guide to rational and just testatorial conclusions and actions, they do prescribe the only sensible, judicious and safe rule for the guidance of the courts. They announce the simple, common sense doctrine that, in order to execute a valid will, the alleged testator must be shown to have possessed, at the time of making it, sufficient active memory to recall.his family and his property, and to form some rational judgment in regard to the claims of the one and the disposition of the other, with reference to the claims of family and blood. In other words, as was said by Redfield, J., it must appear that the testator, when he made his will, “was capable of knowing and understanding the nature of the business he was then engaged in, and the elements of which the will was composed, and the disposition of his property, as therein provided for, both as to the property he meant to dispose of by his will, and the persons to whom he meant to convey it, and the manner in which it was to be distributed among them.”
In the light of the principles above stated, let us examine the facts of the case. The controversy is as to the probate of a paper alleged to be the last will of William Tucker.
If we look alone to the dispositions on the face of the alleged will we can but pronounce it both unjust and unnatural, as well as irrational. It is, on its face, unjust and unnatural because it disposes of the alleged testator’s entire estate to his four daughters by his first marriage (except $200 to his wife), and excludes from all participation his numerous children by his second marriage, two of whom were infants, and one of the infants a daughter, for which no reason is assigned on the face of the paper. It is irrational in that it speaks of the alleged testator’s wife as “ my beloved wife,” and yet attempts the absurdly impossible thing of putting her aside with the pittance of $200.
The paper was written by John S. Sandidge, the proponent, who is named therein as executor and as trustee for one 'of the daughter-devisees, and of whom no security is required. The question to be decided is, as to the testamentary capacity of the decedent, which also involves the question of the formal execution of the instrument.
The probate of the paper in question has been resisted from the start; and although the county court held the will to he valid, and made an order admitting it to probate, an appeal was
There being thus two verdicts—the first in favor of the contestants, the plaintiffs in error, and the second in favor of the propounder, the question is presented, what must be the rule of decision in this and similar cases under the rule prescribed by section 3484 of the lately revised Code of 1887? Prior to this revisal, in cases like this, the well settled rule-of this court was to look (in the first instance) “only to the proceedings on the first trial, and if it discovers that the trial court erred in setting aside the verdict on that trial, to set aside and annuli a'l the proceedings subsequent to said verdict, and enter judgment thereon” —Hinton, J., in Muse v. Stern, 82 Va. 34; citing Pleasants v. Clements, 2 Leigh, 474; Terry v. Ragsdale, 33 Gratt. 344; Brown v. Rice’s Adm’r, 76 Va. 665.
But while this rule seems to be conceded, it is insisted by counsel for the defendant in error that, inasmuch as the plaintiffs in error are excepting to the action of the court below, and the evidence, and not the facts, having been certified by the trial
It is difficult to conceive of a broader or more sweeping statutory provision, or one that could more completely revolutionize the rules of decision in the appellate tribunal in all cases at law, civil or criminal, where there have been two trials and two verdicts—tbe first verdict for the plaintiff in error and set aside by the trial court o.n the motion of the defendant in error, and a new trial granted; and the second verdict for the defendant in error, and a motion to set it aside by the plaintiff in error, and the motion overruled, the plaintiff in error excepting to the action of the court on both trials.
It cannot be denied that the case at bar was a civil action at law, in which a trial by jury was had, and a verdict, at the first trial, rendered in favor of the plaintiffs in error; that the trial court, on the motion of the defendant in error, set aside that verdict and ordered a new trial; that the plaintiffs in error excepted to that action, and that the trial court certified, not the facts, but the evidence.
Nor can it be denied that there was a second trial by jury in the same court, a verdict for the defendant in error this time, a.
In a numerous class of cases this new statutory rule can but operate with harshness and even oppression. But it is so provided by the supreme law-making power of the State, and the law must be enforced as written until the legislature in its wisdom may see fit to change it. The present rule is far more oppressive than was the former rule of this court, when, ordinarily, the losing party came here with °a single verdict, and that against him, complaining of the refusal of the court to set aside the verdict, and with the evidence, not the facts, certified; in which case the rule was that the appellate court would only consider the evidence introduced by the party who prevailed in the court below, and would not reverse the judgment unless, after rejecting all the parol evidence of the exceptor, and giving full faith and credit to that of the adverse party, the decision below still appeared to be wrong. And there was, prior to the new rule prescribed by statute, yet another and equally well established rule of decision applicable to cases where there had been two trials and verdicts, and where the verdict on the first trial had been set aside by the trial court on the motion of the adverse party, and a new trial ordered, in which case the appellate court looked alone, in the first place, to the proceedings on the first trial in order to determine whether the trial court had erred in setting aside the verdict on that trial, but in doing so the evidence, not the facts, being certified, would look to all the evidence on both sides, because by no other means could the appellate court safely determine whether the trial court had erred in disturbing the verdict, and, in so doing, had improperly invaded the rightful province of the jury.
In discussing this rule, in Muse v. Stern, 82 Va. 34, a case
The two rules of decision just above referred to, though very different in structure and adaptation, being founded on somewhat distinct principles and respectively applied Jo cases under wholly different conditions, were yet devoted to the one common object of restraining the hand of the trial courts from interference with the verdicts of juries, except in cases of palpable deviation from right and justice. In the one case the plaintiff in error came to the appellate court with a single verdict and judgment against him, and by reason of the weight and influence ascribed, to the verdict of the jury, he was required to surrender all of his oral evidence, and to hope for a reversal, if at all, by reason of the insufficiency of his adversary’s evidence to warrant the verdict and judgment complained of. These were hard terms—
But all this is changed, and it cannot he said that the change is for the better. For, under the newly prescribed rule of decision, though there has been two jury trials, two verdicts and two judgments ; though the verdict on the first trial was for the defendant (plaintiff in error), and was set aside on the .motion of the plaintiff (defendant in error); though the defendant excepted to that action and obtained a certificate of all the evidence on that trial; though there was a second trial by jury and a verdict on that trial for the plaintiff, a motion by the defendant to set aside that verdict, and the motion overruled and judgment entered on said second verdict, and exception taken and certified to such action; yet when the plaintiff in error comes to this court with the whole record and with a .verdict in his favor at the first trial, which verdict, he claims, was improp-
However, subject to and in the light of the rule, the question recurs, did the circuit court err in setting aside the verdict of the jury rendered on said first trial? Any considerate view of the facts and circumstances disclosed by the evidence, or so much
It is not claimed by the contestants, the plaintiffs in error, that the decedent was insane, but they do claim that he was, during his last brief illness, at times in a state of stupor and unconsciousness, and that he was in such condition at the time of the execution of the pretended will. Several witnesses, who were not present at the time of the execution of the instrument, but who knew the decedent and saw him, during his last illness, either shortly before or after the alleged will was executed, testify on behalf of the propounder that, in their opinion, the decedent was, when they thus saw him, of sound and disposing mind and memory. Other witnesses, who were introduced on behalf of the contestants, and who also saw the decedent shortly before or shortly after, and some of them almost directly after, the execution of the instrument, and when those who were introduced on behalf of the propounder'were not present, certify that the decedent, as seen by them, was not of sound and disposing mind and memory. All of this testimony is of but little, if any, value, as the question must turn mainly on the evidence of those who were present at the time of the execution of the instrument, the important question being as to the mental condition at that time. The evidence does not distinctly disclose the duration of decedent’s last illness; but it was brief, and probably not exceeding a week or ten days. He died on Friday, the 23d of August, 1884, the paper in question having been executed on the 18th of the same month. Though the testimony of the attending physician appears in the record, it is devoted mainly to decedent’s mental condition before and after the particular time (when he was not present) of the execution of the alleged will,
The only persons present at the time of the execution of the alleged will were the propounder, John S. Sandidge, and the attesting witnesses, S. A. Love and O. T. Smith. The paper was written by the propounder and kept by him until offered for probate after decedent’s death ; and Love became a witness to the paper at the instance of Sandidge, the writer and propounder. Sandidge lived in decedent’s neighborhood; but, it is clear, was not by him esteemed and treated as a neighbor, in the true sense of that term. On the contrary, there is abundant evidence that the décedent entertained for him feelings of the utmost contempt. Sandidge had from time to time hauled tobacco for decedent to Lynchburg, and in his account of how he came to write the alleged will, he makes his tobacco hauling a pretext for introducing the subject of conversation which, he says, led to decedent’s request that he should write the will. Ho one heard decedent make the request, and no one was present or knows that this particular paper was ever read by or to the decedent, or that he ever acknowledged it as his will.
Omitting all mere details of statement, which are immaterial, the substance of Sandidge’s testimony is this: Though living very near decedent he only visited him some four times during his last illness. One of these visits was on Sunday, the day preceding that on which the will was written, two of them on the day the paper was written, and the other on the day of decedent’s death.
Sandidge testifies in substance that he had been in the habit
Such is the statement, in chief, of the propounder, John S. Sandidge. Let us look now to the testimony of the two attest ing witnesses, and compare their statements with that of the propounder. The first of them, S. A. Love, was a resident of Lynchburg and, at the time, on a visit to the propounder, who was his brother-in law. He testifies that, at the request of Sandidge, he and Smith went with Sandidge to decedent’s house to witness his will; that on arriving there he and Smith sat on the porch, and Sandidge went into decedent’s room, and in a short while came out and said he believed decedent was dying; that they all three went in and found decedent had been “asleep instead of dying; ” that Smith and witness went out of the room, wijtness going on porch, near window; that witness heard Sandidge reading what he supposed was the will; that Sandidge would ask, “is that right?” that witness did not hear any answer; that Sandidge then came out and took us back into the room, and that Sandidge asked witness to raise decedent up in the bed, which witness declined to do, and then Sandidge raised him up; and Sandidge then asked Smith to hand the pen, ink and book; that decedent’s eyes were inflamed, and witness supposed he was partially blind; that witness saw that decedent could not sign his name; that Sandidge requested witness to take decedent’s hand and help him to sign his name, which wit
On cross-examination, this witness stated that when he and 'Smith left decedent’s room after first going in, perhaps Sandidge asked them to go out. And he further states that decedent did not speak to him (witness) while he was in the room, nor did he show any sign of recognition of him ; that after signing the will, he (witness) went out of the room immediately, and that at the time the will was executed there was no one in the room except decedent, Sandidge, Smith and witness.
O. T. Smith, the other attesting witness, testifies that he and Love, the other attesting witness, went to decedent’s house at the instance of Sandidge; that on arriving there he and Love sat on the porch, and that Sandidge “ went in and came out, and said decedent was dying”; that witness and Love then went into decedent’s room with Sandidge ; that “ decedent was roused up, but did not recognize them ” ; that Sandidge asked witness and Love “ to go out of the room,” which they did; that witness went into an adjoining room, and Love into the porch; that witness heard Sandidge reading something, which witness “supposed was the will,” but only heard a word every now and then; and heard Sandidge ask, “ Is that right ? ” heard something said about $200, and asked Sandidge afterwards who decedent gave $200 to; that Sandidge came out and asked witness-to go into decedent’s room; that the will was produced by Sandidge, who asked decedent if that was his will, and decedent nodded his head. This witness further testifies that he did not hear decedent speak; that he was standing with his arm leaning on the mantelpiece, and that Sandidge and Love were standing between him and decedent; that he (witness) could not speak as to decedent’s mental condition, only .saw him nod his head; that after the will had been signed decedent asked for water, and witness gave him some; that decedent’s eyes were always inflamed, and that he was rather a talkative
On cross-examination, this witness (Smith) testified that decedent did not speak to him, and that he didn’t know whether decedent would have spoken to him or not if he (decedent) had' been in his right mind; that decedent’s eyes were inflamed and he may not have seen witness; that decedent was lying on his hack, and witness stood by his side when he witnessed the will; that witness did not know whether decedent knew he was in the room; that witness did not remember the precise time, but that he visited decedent two or three days before that on which the will was executed, and that decedent spoke to him then when he entered the room; that witness was a near neighbor of decedent, and decedent knew him well, and had always spoken to him before. And this witness further said that he did not hear decedent say anything while he was in the room except to ask for water, for which he made a sign, and witness gave it to him.
Such is the evidence of the propounder and the two attesting witnesses, the only persons present at the time of the execution of the alleged will, and, consequently, the only material evidence in the cause, the question being not as to the mental capacity a short time before or after, hut at the time of the execution of the instrument. It needs hut a glance at this evidence to make it clear beyond dispute that the deceased, at the time of the execution of the paper, was in a state of unconsciousness.
If we were to look alone to the testimony of the propounder, by whom the paper was written, and under whose immediate supervision and direction it was executed, we could not avoid the conclusion that the deceased was possessed of a sound and disposing mind and memory. For, notwithstanding his declaration, made immediately after he first entered the sick room, on the day of the execution of the paper, that the decedent was dying, or looked like he was dying, yet this is, in part, adroitly explained away by saying that, on going back into the room, it
But in this case, when we pass from the testimony of the propounder himself to that of the subscribing witnesses, so far
Again, the testimony of the two subscribing witnesses shows conclusively that the condition of the decedent was such that he did not and could not have directed Sandidge to bring in the witnesses, as the latter says he did immediately after the paper was read to him, and such that he could not have made the responses, during the reading of the paper, which Sandidge puts in his mouth. Indeed, Love says that the only question put to decedent was when Sandidge asked him if that was his will, and he said, “ yes.” Smith says that in answer to this question dece
This, it is true, is the evidence of the subscribing witnesses, who, as was said by Staples, J., in Young v. Barner, 27 Gratt. 96, are regarded in the law as placed around the testator to guard against fraud, and to ascertain and to judge of his capacity. And in the same case Judge Staples says that “a person who signs his name as a witness to a will, by his act of attestation solemnly testifies to the sanity of the testator. If he afterwards attempts to impeach the validity of the will, his evidence is not te be positively rejected; but is to be received with the most scrupulous jealousy;” citing 1 Jarmin on Wills, 77, and cases there cited in note 1.
This rule, though just in its general application, ought not to be vigorously applied to a case like this, when the circumstances clearly show that the witnesses were suddenly called on and, with a haste dictated by the author and propounder of the paper, which left them no timé for due deliberation ; and when called upon to testify, as they were, in behalf .of the propounder, they were in duty bound to detail truly the facts and circumstances, in doing which they afford the only available and reliable data from which to draw proper judicial conclusions. They do not, therefore, strictly speaking, occupy' the attitude of subscribing witnesses seeking to invalidate the will, but rather that of such witnesses disclosing the circumstances which led them to act inadvertently, and the facts touching-and incident thereto; though, it must be said, as was remarked by Chancellor Walworth in Scribner v. Crane, 2 Page’s R. 147, that “no person is justified in putting his name as a subscribing witness to a will unless he knows from the testator himself that he understands what he is doing. The witness should also be satisfied, from his own
In the case at bar, it is obvious that neither of the subscribing witnesses had the requisite knowledge to enable them to testify that the will was duly executed. Indeed, it is scarcely conceivable, even under the circumstances that surrounded them, that they did not refrain from an act so repulsive to men of honor and sensibility, and so calculated to inflict irreparable wrong upon those who were justly interested. The circumstances, however, very clearly indicate that they probably intended no wrong.
There is much evidence in the record, introduced on behalf of the contestants and not contradicted nor in conflict with that on behalf of the propounder, which greatly augments the discredit cast upon the propounder, Sandidge, by the subscribing witnesses, and puts him in the unenviable attitude of acting in this matter through interested and unworthy motives. But it being unpleasant to do so, and not" essential to the justice of this case, this view will not be further pressed.
Taken all in all, this case, though involving no great amount, is a very remarkable one. The deceased laboring under his last illness, which is so severe and so.rapidly rushing him on to dissolution, that, in a very few days after his first attack, he is for a spell reduced to a state of unconsciousness, some two days after which, and evidently in the midst of another such spell, one, though living near, not truly his neighbor, and a stranger alike to his blood and his confidence, assumes the role of neighbor and confidential friend, hurriedly prepares a paper purporting to be a will, and with equal haste procures the attendance of the
Judgment reversed.