#### John Den ex dem. Abraham Merritt *against*J. Johnson.

IN EJECTMENT.

Verdict not whOTecontrar dictory evithe judge certifies that he is satisfied. Definition of the tary capacity.

THIS cause was tried at the *Bergen*circuit in *October*1816. At the subsequent term a rule was granted to shew cause why the verdict should not be set aside. The state of the case, as signed by the Chief Justice, is in the following words : *(a)*
      *'*

,, It was m evidence on the trial of this cause, that one *p>aney*was seized in fee of the premises in ques-*a*r . tion, and being so seized died without issue, on or about the 20th day of *April*1813; that she left one brother, *Abraham Merritt,*the lessor of the plaintiff, and four children of a deceased sister, and that beside these she never had brother or sister; the lessor of the plaintiff claimed two-thirds of the premises, under the statute of descents, as brother of the said *Susannah Bailey.*

*“*The defendant, by way of defence, proposed to shew not a title in himself, but a title out of the plaintiff, and for this purpose gave in evidence a paper purporting to be the testament and last will of the said *Susannah Bailey,*bearing date the 18th day of ApriZ 1813, devising her whole estate, both real and personal, to the said four children of her said deceased sister, and constituting *Josiah Purdy*and *Joseph Purdy,*two of the said children, and *Josiah Johnson,*the defendant, to be executors thereof. And the validity of this will was the whole matter of controversy in this suit.

“ The plaintiff alleged that the testatrix, at the time of signing the will, was so far broken by the pressure of her disease, which *had been very violent and very rapid, *523and that the hand of death was so heavy upon her, that she was incapable of the exercise of a sound and disposing mind and memory; that the said will had been written by the said *Josiah*and *Joseph Purdy,*in the kitchen, according to the contrivance of their own minds, without any consultation with or direction from the said testatrix ; that the said testatrix had never read the said will, being, in her situation, altogether incapable of doing so, and that the same had never been read to her by any other person.

“ To establish these facts, the plaintiff called not only the testamentary witnesses, but also a number of others, who -were visitors and attendants during the illness of the testatrix, who were very carefully and very skilfully examined and cross-examined touching these matters and touching all the circumstances that could be brought to bear upon them. The case was then very ably summed on both sides, and with a very few words, by way of charge, from the bench, was submitted to the jury.

“ It was stated to the jury, in the charge, that in examinations of wills, the sanity or insanity of the testators was always a question of fact to be decided by the jury, to be decided by them upon the whole evidence according to the plain principles of common sense, unembarrassed by technical language or unintelligibly rules ; that after probate the sanity of the testator was always to be presumed in favour of the will; the insanity always'to be proved by him that alleges it; that the terms “ sound and disposing mind and memory,” so commonly used on this subject, stand opposed not only to idiocy and lunacy but to all derangement of mind, occasioned by melancholy, grief, sorrow, misfortune, sickness, or disease; that it is true that every discomposure of the mind, by these causes, will not render one incapable of making a will, it must be such a discomposure, such a derangement, as deprives him of the rational faculties common to man, that *sound*signifies *whole, unbroken, unimpaired,*unsháttered, by disease or otherwise; that a “disposing mind and memory” is a mind and memory which have the capacity of recollecting, discerning and feeling the relations, connexions and obligations of family and blood ; that though *524it had been sometimes said, as had been stated from the books, that if one could count ten, 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 shew 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 that the will in question was devised by other persons, and only assented to by her upon being asked, without the power of understanding it, then they ought to find for the plaintiff.

“Again. It was stated that though they should find that the testatrix did possess her mind, in such a degree that she might have made a rational disposition of her affairs, yet if they should be of opinion, from the whole evidence, that the will was written without any consultation with, or direction from her, and that from, her great weakness and debility she was unable to read the same, as the plaintiff had alleged, then it was incumbent on the defendant to prove that it had been fairly read or fully explained to her, for without that, though it might be her will in form, it could not'be so in fact and in truth, and this rule ought to be insisted on in this case particularly, because *Purdy,*one of the executors and devisees in the will named, expressly prohibited the testamentary witnesses from reading the same to the testatrix before she signed it; if, therefore, under such circumstances the defendant had failed in such proof, they ought to find for the plaintiff. But that when it was said the reading or explanation of this will ought to be proved, it was not intended that this proof must necessarily be direct and positive, it might also be proved by such circumstances as would satisfy the minds of judicious and rational men that it has been, and that in this case, the jurors were to be the sole judges.

“But .that if, on the other hand, they should be of opinion that the testatrix, at the time of signing, so far possessed her rational powers as to be able to dispose dis*525creetly, and even in such a state as to be able to read understandingly, then proof that she actually did read the will or had it read or explained to her, was not necessary, but it was to be presumed, as in all other cases, and if she had not read it it was her own fault. With this charge the jury retired, and having returned into court pronounced a verdict for the plaintiff, and with this verdict I was perfectly satisfied.”

*In addition to the case as stated by the Chief Justice, the parties agreed upon a report of the evidence, as given on the trial; but from the opinion expressed by the court, a detail of it is not supposed to be necessary.

*llornblower*and *Halsey*for the defendant,

in support of the rule argued. 1. That the presumption of law was in favour of the sanity of the testatrix and the legal execution of the will; that there was no fact to impeach this presumption, but that all the evidence tended to prove that the testatrix possessed the testamentary capacity, and that therefore, the jury had grossly erred in their verdict-2. That the charge of the court was contrary to law.

*Attorney General*answered for the plaintiff.

This charge commented on, *Sloan vs. Maxwell, 2 Gr. Ch. 568.*

Rossell J.

In this action the defence set up by the defendant, was the will of *Susannah Bailey,*devising the premises in question to the four children of a deceased sister. And the validity of this will was the whole matter in controversy. The plaintiff alleging that the testator at the time of signing that will, such was the violence of her disease, that the hand of death was heavy on her and rendered her incapable of exercising a sound and disposing mind ; that the supposed will had been written by the defendant and one *Joseph Purdy,*in the kitchen, according to the contrivance of their own minds and without any consultation with the testatrix, who had never read the will, was incapable of doing so, and that it had never been read to her. To establish these facts, the plaintiff' called a number of witnesses who were present at the time of the execution of the supposed will, and during the time of her extreme illness. The Chief Jus*526tice charged the jury, who found a verdict for the plaintiff, - with which he declares himself perfectly satisfied.

To this charge of the Chief Justice exceptions are taken, and this motion for a new trial made.

On examining the charge of the Chief Justice, it appears to me to be substantially consistent with the law and the fact. It is true, that so me authorities say, that if a man is so witless that he cannot number twenty, tell his own age, nor know his father or mother, he cannot make a testament. Yet this I apprehend is only putting an extreme case, merely to shew that wills are not lightly to be set aside for incapacity of the testator, though he might rather Uncline to the weak or foolish amongst men ; for the same author continues, “ It is requisite that the testator, when he makes his will, should be of sound memory and competent understanding to dispose of his estate with reason.” *Lovelass*139, 140. So in 141-2. The mere acknowledging of a writing by a blind man, that it is his will is not sufficient unless there be .satisfactory proof that the will had been read over to him. The same precautions are requisite in the case of persons who cannot read, or who by sickness are incapacitated to read the will at the time, *(a)*

In this case there was also an allegation of fraud in imposing a will contrived by others on the testatrix, *(b)*
      **The whole proof was before the jury; on this proof, under the charge of the .court, they found a verdict for the plaintiff, with which the judge has declared himself perfectly satisfied. And I can see no sufficient reason for disturbing that verdict.

Southard J.

Two reasons have been principally relied on for setting aside this verdict'; misdirection of the court in matter of law, and error in the jury in matter of fact, upon the .weight of evidence.

The objection to the charge of the court applies to that *527part in which the judge explained the words “sound and disposing mind and memory,” but principally to the definition of the word *sound,*
      *(a)*
      **The cause seemed to turn upon the proper construction and application of those words, and therefore a minute explanation of their meaning was given. In forming our opinion of this reason it is fair, as well as safe, to look through the whole charge, at least so much of it as relates to these terms; its correctness is to be determined by the whole, taken together.

The Chief Justice first explained to the jury the meaning and import of the word *sound,*by itself: he then tells them, that “ a disposing mind and memory,” is a mind and memory, which have the capacity of recollecting, discerning and feeling the relations, connexions and obligations of family and blood.” And these definitions I take to be accurately true. After explaining the separate meaning of the words in the passage, he connects them together, and, giving their united result, he adds, “If upon the whole, the jury should be of opinion, that the mental powers of the testatrix were *so Jar*enfeebled and broken, as that she could not make a discreet disposition of her affairs herself, and *that the will in question was devised by oilier persons, and only assented to by her, on being asked, without the power of understanding it, then they ought to find for the plaintiff.” A result more true, could not have boon given; a result more favourable to the defendant ought not to have been desired.

Should it then, even be admitted, that in describing the force of the word *sound*by itself, too strong a language has been used ; still I do not perceive that it affords *good cause*for a new trial. The definition of the testamentary capacity taken together, is clear, explicit, and true.

In encountering the second reason^ the counsel for the defendant have no ordinary task to perform. It is common and proper to set aside a verdict, which is clearly and conclusively against the weight of the evidence, and with which the court who tried the cause is dissatisfied. But *528where the case turns on the opinion which shall be entertained of the testamentary capacity and the court is perfectly satisfied with the verdict, it is seldom, perhaps never found, that a new trial is granted; and such is the present case.

The case presented by the Chief Justice furnishes no proof that the jury has erred; and if we depart from his state of the facts, and look into the evidence, as agreed upon by the parties, the proof is not increased. The counsel for the defendant have stated several points on which they supposed that there had been either a great misapprehension, or a disregard of the evidence; but it is to be remarked, that on each of these points, there was a contradiction between the witnesses. In such circumstances, much, nay every thing must have depended on the character and credibility of the witnesses, and on those matters, of which the jury were the competent and proper judges. I am not, therefore, prepared to say that I find cause for a new trial.

By the whole court:

Let the rule be discharged.

*Suffern vs. Butler, 3 C. E. Gr. 220, 4 C. E. Gr. 202. Hyer vs. Little, 5 C. E. Gr. 443.*

*Whitenack vs. Stryker, 1 Gr. Ch. 9. Goble vs. Grant, 2 Gr. Ch. 629. Will of Nancy Maxwell, 4 Hal. Ch. 251. Lynch vs. Clements, 9 C. E. Gr. 431. Hunt vs. Hunt, 2 Beas. 161. Lowe vs. Williamson, 1 Gr. Ch. 82.*

*Den vs. Vancleve, post 660. Lowe vs. Williamson, 1 Gr. Ch. 82. Andress vs. Weller, 2 Gr. Ch. 604. Den. Trumbull vs. Gibbons, 2 Zab. 117. Turner vs. Cheeseman, 2 McC. 243. Matter of Vanauken, 2 Stock. 187.*