39 Ky. 434 | Ky. Ct. App. | 1840
delivered the Opinion of the Court
George Weir, of Woodford, when singularly agitated on the subject of religion, and with a fixed foreboding of speedy death, though apparently free from physical infirmity and disease, wrote, in his usually free and legible hand, the following paper; which was afterwards, on the morning of the 26th of September, 1839, attested by Joseph C. Stiles, at his instance, and in his presence, at his own house, and thus published as his last will:—
“ I, George Weir, being of sound mind and memory, “ do make this instrument my last will and testament, to “wit: I devise all my real and personal property, with “ the exception of my negroes, to my dear and beloved “wife, Anne Elizabeth Weir, and my children, one' “ named John William Weir, and the other named Mary “Dobbin Weir, to be equally divided amongst them, “ subject to the following exceptions, to wit: Jane Dob“bin and Mary Dobbin are to have one thousand dollars ‘c each, to be paid them two years after my decease, I “also leave George Carroll, grandon of Thomas Car- ‘‘ roll, fifteen hundred dollars, which is in part to be appropriated to his education; the’balance to be given “him when he becomes' of age, to make a start in the “ world, I wish him to have a good moral and religious
Attest. Geo. Weir.
Joseph C. Stiles,
‘ T do also say herein, that old Mrs. Garroll is to have $500 for her own use.” G. Weir.
Codicil — "There will be deducted out of my estate, ‘ ‘ means sufficient to pay debts incurred in liberating my " negroes, and my heirs shall not be entitled to the pro- " vision made for them, unless they shall go security to " Court for said negroes’ good behaviour.”
Attest, Jos. C. Stiles.
Weir having died on the 12th of November, 1839, the foregoing paper was presented to the County Court of Woodford, for probate; but the Court, consisting of eight justices, being equally divided in opinion as to his capacity to make a valid will, rejection was the necessary consequence of that division.
The case having been re-tried in this Court, the only question to be decided, is whether George Weir, when he wrote the paper, had a disposing mind.
Several witnesses were examined on both sides, whose testimony, though circumstantially variant, was substantially the same in effect; and though they were about
The subscribing witness, an .eminent presbyterian preacher, living near George Weir, and, as both friend and pastor, associated with him in a manner peculiarly intimate and confidential, was clearly of the opinion that, though, as testified by him, in a very copious, intelligent and lucid manner, Weir, at and about the times of writing and publishing the paper, was in extreme mental agony, bordering on total despair and absorption on the subject of religion and his eternal destiny, yet, nevertheless, he was rational and of disposing mind.
And the facts proved by him, not essentially differing from those established by other witnesses, concerning the state of Weir’s mind about the same period, are substantially these: — that he owned five hundred acres of land, and about twenty slaves, and a valuable personal estate ; was actively engaged in agriculture, in manufacturing bagging, and in attending to a profitable mill on his farm; had manifested a very intense interest in his business, had been remarkably vigilant and provident in the constant supervision of it, in all its details; and had evinced an almost romantic devotion to his family, until some time in the spring of the year 1839, when, one of his children being dangerously sick, he became melancholy, and. afterwards continued to become apparently more and still more unconcerned about his family and estate, until about the date of the paper, when he had become, in a great degree, habitually passive, and inattentive to all worldly interests and relations, and seemed to be in a most deplorable condition of mental concentration and despondency, on the subject of religion. That, only a few days before the date of the paper, his wife, professing to be a Christian, was admitted into the presbyterian church, and that he, though then still in apparent despair, determined, as a last and forlorn hope, to become a member of the same church at the same time, and was accordingly received with her, but under circumstances which indicated intense conviction and distress, with
It appears that, the day after the publication, George Weir visited his brother James, near Lexington; told him that he had made his will, how he had made it, and why it had been so made, He also told him that he was in hopeless despair, and would .certainly die in a short time; manifested much anxiety about the emancipation of his slaves, and conversed.with him about the condition of his affairs, and the value of his estate; and that, about ten days afterwards, he handed to James Weir, an abstract of debts due to him, and from him, which had not been entered on his journal, and his recollection of which appears to have been singularly minute and accurate. This memorandum is as follows:—
‘'My Bill Book will show to whom I am indebted by note . and if any are not entered, all other notes out, of mine, are correct — I suppose. My a’c book has been very irregularly kept or posted, although all the credits I think would appear on them. But I now make a general statement of persons whom I owe on a’c, and those owing me at this time. ”
“H B Lewis, open a’c, owes me I think.
J W Daviss, do — I owe him for timber and negro work — and he owes me for 2 years sawing.
S T Twiman owes sawing a’c, and I owe him the notes in his hands — Sawing a’c settled,
P Fenwick flour-
George Tarleton do,
Wm French, as pr Book,
Wm Craig for flour, owes me,
L W Peak owes me — Bal on rye.
I owe Wm Martin for 100 B wheat at 75c pr, B. also a small bal, on hemp seed—
I owe H W Daviss a small a’c.
The Midway merchants I owe,
There is an unsettled a’c between myself J C Carlile—Jeans, Stove &c. Sawing a’c &c. deducted.
I owe none of the Harpers only on note. Tom Harper owes for plank
Edw. M Blackburn and Dr, C J Blackburn Scott have open a’cs, I owe Dr. C. of Scott I suppose $30 or $40 dollars. E M B..about even probably — other little flour a’cs Stevenson knows propably whether they have been collected.
All a’cs occuring from page 144 in day Book if paid off are marked settled or pd. those not pd off remain on Books in open a’c — Jno C Meguffins a’c is unsettled.
My a’cs in Lexington are with
A K Skillman, Porter & Butler.
Collins & Timberlake. Tom Huggins.
J Bruen. Mon & Cornwall.
A Logan. J S Marsh.
“ I Read & Son owe me, 8 or $9 00, see their a’c as closed. ”
‘‘ Henny ought to be set free,”
It appears from other testimony, that, after he returned to his family he made entries on his Journal, allowing to two faithful managers, without solicitation by either of them, about fifty dollars each, more than his salary as fixed by contract, stating as his reason therefor; that they had been cheated, and deserved more than they had agreed to take; and, Suggesting that frauds had be'en generally committed in the measuring of Bagging, he required a re-mesuration of several pieces which he had on hand and even after they had been remeasured, seemed scarcely willing to believe the fact as reported by the measurer, that all of them Were as' long as they had been marked as being.
He continued to be' absorbed, and inattentive to his family and affairs j would sometimes seclude himself, and refuse to see his neighbors in his own house. But when any one called on business, he understood it perfectly, and attended to it correctly.
Dr. Blackburn, a neighbor and intimate friend, was of the opinion that, though he continued to Walk, and even' to increase in flesh, for some weeks after the publication, yet he was diseased both in body and mind, and was afflicted, at that time, with monomania, called by him “ melancholy mania, ” which disease continued to grow worse until he died; before which event, he was, according to all the testimony, evidently of unsound mind. Hr. Blackburn, however, did not see him about the date of his will, nor until about a week afterwards.
Such is a substantial outline of the material facts proved in this Court. And they certainly exhibit an anomaous case, in which, whatever may be the judicial deduc
Had there been no attempt to make a will, or to exhibit a schedule of his unregistered accounts, although the question of sanity might have presented, in such a state of case, some metaphysical difficulty, yet we should not, even then, have been satisfied that George Weir was, at the date of the controverted paper, or for some days, perhaps weeks, afterwards, so far of unsound mind as to be incapable of making a prudent, rational and valid disposition of his estate.
The intensity of his conviction and despair on the subject of religion, without producing insanity, or being the consequence of it, might have rendered him listless and unconcerned on all other subjects, and have been, nevertheless perfectly consistent with the existence and the exercise of Unimpaired reason on all subjects. It would be difficult, and rather hazardous, to decide that his religious exercises, extraordinary as they may have been, would be the absence of any other facts, be satisfactory proof of insanity. His theological principles, and his views of the cardinal doctrines of the Christian system of religion were in the opinion of Mr. Stiles, altogether sound and orthordox. And therefore, -believing that he has passed hi day of grace, and was not in salvatable state, he might, without irrational delusion, or any disease of body or mind, have been in such agony of soul, as to feel that he could not long survive, and to manliest as he did, comparative unconcern for all things perishable. This was the opinion of Mr. Stiles; and could'not decide that he misconceived the true cause of the strange conduct which was ascribed by some others, to unsoundness of mind. Nor could we feel authorized to decide that, a high degree of enthusiasm, or .even fanaticism, on the subject of religion, should per se be deemed legal insanity. The fact, however, that, whenever he could be diverted into any other current of thought, he was as rational as he had ever been, tends strongly to
But the manner in which he conceived and executed the purpose of making a will, and of preparing his business for the expected catastrophe which soon occurred, furnishes intrinsic evidence of his general sanity, or his capacity in reference to those matters at least, the force of which it would be difficult if not impossible for an intelligent mind to resist.
The best possible proof of a sound and disposing mind is “ a rational act, rationally done, ” which reason alone could have conceived and accomplished. There is no use for metaphysics then; nor should speculation perplex the judgment when the question is solved by the palpable fact, that rational intellect shows itself by acts which can be the offspring of no other than an intelligent, sound and reasoning mind.
Now, George Weir conceived and wrote his own will, without suggestion or aid from any other person. It seems, upon its face, to have been provident, just, and well considered. It was written with a clear and steady hand; the writing is free arid graceful, and the orthography is good. The memorandum afterwards prepared for James Weir, was written by the same hand, and exhibits the same general characteristics, though in an inferior degree; and all the minute facts therein communicated* turned out to be exactly true, with one exception only, and that is, that he owed William Martin for 102 bushels of wheat, instead of 100 as he thought.
The will is such an one as every just and enlightened mind would concur in approving as about the best a man, Standing in his relations, and being in principle an eman-fcipator, could have made.
He had promised, and was under a peculiar obligation, to make some provision for his two destitute and orphan. It was certainly his duty to make And he could not have been excused had he failed to
His first codicil, written evidently a day or two after the body of the will, appears to be not altogether reasonable. But understanding him, as we do, to have used the word “Heirs” synonamously with legatees, intending thereby, those who were to succeed to his estate, we presume that his chief object was to induce his wife to confirm the emancipation of his slaves, by giving the security which he supposed the county court might require. The principal defect in this codicil, therefore, is only a want of legal skill and technical precision, which was not of such a character as clearly to indicate unsoundness of mind.
And when it is understood that he owned only a partial interest in the slave mentioned in the memorandum given to his brother James, the suggestion there made, that “ Horny ought to be set free, ” only tends to prove that he supposed, and truly, that his will emancipating all Ms slaves would not apply to her, and that therefore, he recommended her liberation also.
There is nothing, therefore, in the will or the memorandum, of a character so incongruous or absurd as to be entitled in our judgment, to any essential influence, towards impairing the intrinsic evidence of a disposing mind furnished by those documents ; which when scruti
Had the facts authorized the deduction that, before or about the date of the will, he had been oven a lunatic, the provisions of the will, combined with the fact that he dictated and wrote the whole of it, and in a manner so complete and judicious, ought to be sufficient to prove that, when he wrote 'it, he had a lucid interval. On this subject old Swinburne says — “If a lunatic person, or “ one that is beside himself at sometimes, but not con“tinually, make his testament, and it is not known “whether the same were made while he was of sound “ mind and memory or no, then, in case the testament “ be so conceived as thereby no argument of phrenzy or " folly can be gathered, it is to be presumed that the same “was made during the time of his calm and clear inter- “ mission, and so the testament shall be adjudged good: " yea, although it cannot be proved that the testator useth “to have any clear and quiet intermission at all; yet “nevertheless, I suppose that, if the testament be wisely “and orderly framed, the same ought to be accepted for “a lawful testament. ” And not only does this text contain both sound reason and good law, but its doctrine is still more conclusive when, as in this case, the testator actually wrote his will, and in such a manner as, of itself, to indicate self-possession, deliberation, and intelligence. We have seen no case in which a will supported by all those props, was ever set aside for incapacity, upon proof, however strong, as to occasional acts of evident insanity.
In the celebrated case of Cartwright vs. Cartwright, (1 Philmore, 90, and 1 Eng. Ecc. Rep. 47,) it was decided by Sir William Winn, that though Armyne Cartwright, when she published her will, was confined for lunacy, and considered by her attendant physician to be incapable of making a valid disposition of her estate,
The case before us does not require the support of any such extreme case as that of Cartwright vs Cartwright, for here there was no sufficient proof of insanity before or about the time of writing Weir’s will. It is true that he lost his mind before his death, and that his condition was. never improved, but seemed to become gradually more marked and hopeless until he died. But this does not prove, or tend to prove, more than the fact that the ultimate cause of his moral ruin and his death may have existed, in his mind or his body, and perhaps in both, before he, wrote his will. But it does not authorize the deduction, repelled by other facts, that this incipient malady had progressed so far, or was of such a character, at the dale of the will, as to dethrone his reason, or incapacitate him for making a testamentary disposition of his estate. And whatever might have been thought of his strange forebodings had he been afterwards relieved of his melancholy and still survived, yet, as the event verified his predictions, his strong presentiments cannot be deemed evidences of insane delusion.
We are, therefore, satisfied that, at the date of his will and for some time afterwards, George Weir did not labor under general insanity,
The more difficult question is — whether there was particular delusion degenerating into monomania; and whether this morbid affection produced or essentially modified his will, or any material provision thereof.
But we cannot decide that, at the date of his will, he was insane on the subject of religion, or in reference to his family or estate. We do not think that the facts authorize such a judicial deduction. In our opinion they conduce to a different conclusion.
Nor, if there had been such particular insanity at that time, could we decide that any provision in the will was influenced by it. The legacies to his nieces and natural son could not have been thus only produced; because he had made a will in 1834, in which he had made similar bequests; and moreover, they were obviously natural and reasonable. The small legacy to old Mrs. Carrol was equally so ; and the devise to his wife and children was suitable, ample and reasonable, upon the hypothesis that he acted rationally in manumitting his slaves. Whether any morbid delusion, amounting to insanity, on the subject of religion or social obligation, influenced him to emancipate his slaves, is the only question about which we have felt any difficulty.
It appears that he had expressed the opinion that those who emancipate their slaves and leave them in-a slave State, thereby do an injury to the persons liberated, and great injustice to the resident white population; and it appears, also, that, as late as August, 1839, he offered to buy a slave or slaves at auction in his neighborhood. But his brother James testified that he (George) had always been opposed in principle to slavery, and that he had, in the winter of 1838-9, evinced to him, in a confidential conversation, that he considered it his duty not to die a slave holder. It seems, therefore, that, though he was willing to use slave labor and own slaves in a slave state, he was, in principle, an emancipator, and intended, when his capacity was unquestioned, to liberate his slaves at his death. And though he may have felt rightly as to the impolicy of 'letting loose, in the bosom of a slave community,"a degraded cast of manumitted negroes, yet his will does not show that he had changed that
In emancipating his slaves, therefore, we cannot presume that he did otherwise than he had deliberately intended when his sanity was unquestionable.
Nor can we decide that his conduct in the measuring of his bagging, and in giving to his managers more than their stipulated salaries, manifested an insane delusion on the subject of Christian duty. It only proves that his religious convictions had become such as to awaken a peculiar sensibility to scrupulous justice and truth.
And were it admitted that his deep and peculiar feelings on the subject of religion, produced all those manifestations of benevolence towards his fellow citizens, and also towards his slaves, still we could not say that therefore he was, even on that subject, insane.
We are therefore of the opinion that, there is no sufficient proof of particular delusion, or of any such insanity having influenced the will, to authorize this Court to adjudge it invalid for want of a sufficiently sound and disposing mind at the time it was written and published.
And, as already suggested, we are clearly of the opinion that George Weir’s capacity to settle his accounts, and to converse rationally whenever he chose to do so, and the intelligent manner in which he framed and wrote his own will, the propriety of its provisions, and their perfect conformity with right moral sentiments, with his own deliberate and pre-formed determinations, and with all his relative duties, prove that, when he wrote and published it, he had a sound and disposing mind.
Then, whatever may be the effect of the emancipation of his slaves, as he had a right to liberate them, it is the province of this Court to pronounce the law, and establish his will.
Wherefore, the order of the County Court is set aside, and the paper purporting to be the last will of George Weir, deceased, is admitted to record in this Court, as