#### JOHN M. MARSHALL *and*others, *propounders, vs.*JAMES M FLINN *and others, caveators.*

Where special instructions are prayed for in the trial of a cause, it is the duty of the Court to respond, either by adopting the prayer, or by refusing to do so. But he is not required to charge in the language in which the application is made; if he substantially conveys the idea to the jury, it is sufficient.

The influence which destroys the validity of - a will, is a fraudulent influence, controlling the mind of the testator, so as to induce him to make a will which he would not otherwise have made.

Where the Court erred in ruling out testimony, and a proposition is made by the counsel on the other side to waive the objection, and admit the evidence, which is declined, the error is cured by this waiver and refusal.

Issue of devisavit vel NON, tried before his Honor, Judge Dicic, at the Fall Term, 1856, of New-Hanover Superior Court.

The propounders offered a script purporting to be the last will and testament of "William Marshall, deceased, dated 5th of October, 1852. The subscribing witnesses were sworn and examined, and proved that it was executed on the day it was dated, and the paper-writing, read to the jury, is the same.

The caveators resisted the probate of the script, on the ground of mental incapacity in the decedent, and they examined one *Charles*Henry, who stated that he saw and conversed with the deceased twice in the year 1852; and from these two conversations, and an acquaintance of thirty years, he had formed an opinion that "William Marshall had not been capable of making a will since 1850.

It was proved that William Marshall, jr., a son of the decedent, died about the 20th of September. 1852. Several witnesses, offered by the caveators, testified that they saw the supposed testator on the day of this son’s burial, and about that time, and they were of opinion that he was not in his right mind and was incapable of making a will.

The caveators also offered a witness, who stated that he saw the decedent in December, 1852, and in his opinion, he had not capacity to make a will. They also introduced wit*200nesses, wbo saw bim in 1853 and 1854, wbo gave the same opinion.

The propounders introduced the *R&o. Mr.*Twrrmtvm, who stated that he was called on to read the burial service upon the interment of "William Marshall, jr.; that after the services were over, he had a conversation with the supposed testator, in which he stated that the death of his son William made it necessary for him to alter his will, and asked him to write one for him. The witness replied, that he had not much experience in writing wills, but that a Mr. Green, to Avhose house he was going that evening, was better acquainted with such business, and suggested his being employed to •'¡Vrito it, to which the decedent assented, and it was agreed that witness should bring Mr. Green with him next day. They both came on the next day as agreed, and the decedent dictated to Green the various provisions of his will, of which the latter took a memorandum. He returned home and wrote out the will. On the next day, witness and Green again visited the decedent, and the writing was produced and slowly read to him, which he fully approved. It was then executed by the decedent, and witnessed by him (Turrentine). This witness stated, that on the three days previous to this transaction, ho (decedent) was calm and rational, and, in his opinion, fully capable of making a will.

*Mr. Oreen*was examined and fully concurred with Mr. Turrentine in his opinion as to the sanity of the supposed testator.

It had been agreed that he (Green) should act as executor, and, therefore, it was arranged that this script should be copied by a neighbor, Mr. Parker. Green and Parker went to the house of the decedent, some ten or twelve days after it was first written, and Parker copied it, and it was executed in the presence of Parker and one Leonard, who became the subscribing witnesses. These two latter were examined on the trial, and sustained Green and Turrentine as to decedent’s capacity.

In the course of the argument, the counsel for the cavea-tors, asked the Court to instruct the jury as follows: “ That *201though the jury cannot weigh the 'amount of the testator’s intellect, still he must have the possession of what intellect there may be, free from any delusion or mental aberration, frenzy, insanity or dementia.”

The Court refused to give the instructions in the language in which .they wei’e prayed for, but charged as follows: *“*"Weakness of mind was not of itself a valid objection, as the law did not undertake to measure the size of a man’s intellect ; it did not require that he should be a wise man, but if he was between the wise and the foolish sort, although he inclined rather to the foolish, he was in law capable of making a last will and testament. To enable a man to make a disposition of his property, he must do it with understanding and reason, and if the jury should be satisfied that, at the time of executing the siipposed will, William Marshall had not understanding and reason, they should find against the *will;*but if he knew what he was doing, and that he was giving his property to the plaintiffs, and that they would be entitled to it, provided the forms of tlie law were complied with, they should find in favor of the will.” Caveators excepted.

The caveators’ counsel then requested the Court to charge the j ury as follows: *‘ ‘*The opinion of a witness, and the weight it ought to have, will depend upon the solidity of the reasons assigned for the opinion and intelligence of the witness.”

The Court refused to give the instruction as prayed for, but told the jury, “ That the opinions of the several witnesses, the solidity of the reasons assigned for their opinions, (when they assigned any,) and their intelligence and integrity were matters for their consideration.” Caveators excepted.

The counsel for the caveators further requested the Court to instruct the j ury as follows: “Incases where the mental capacity is called in question, very little weight should bo attached to the testimony of casual visitors.”

The Court refused to instruct as asked. Caveators again excepted.

The counsel for the propounders, requested the Court to instruct the jury as follows: “A son has a right to use the *202influence of persuasion and natural aflection to induce a father to make a will. The only sort of influence which the law condemns, and which destroys the validity of the will, is a fraudulent-influence, controlling the mind of the testator, so as to induce him to make a will which he would not otherwise have done.”

The caveators’ counsel objected to the Court giving the instruction prayed, because, as they said, *“*they had not put the case upon the ground of undue influence, but altogether upon the ground of the want of capacity in the decedent.”

The Court asked the counsel, if they withdrew that part of their argument, in which the Court understood them to argue, that the paper-writing, before the Court, was dictated by J. M. Marshall.

The counsel answered, they did not withdraw the argument they had made, because they considered it proper in answer to the evidence offered by the proponnders, to show that the decedent had dictated his will, and had assigned reasons for so doing. And they still contended that such dictations and reasons may have been the suggestions of J. ML Marshall, one of the principal legatees, who resided in the same house with the decedent, and assisted him to the door of the room in vrhich the paper was executed.

The Court then gave the instruction asked for by the pro-pounders. Caveators excepted.

One Arthur Bordeaux had been examined as to the character of *Mrs.*Balentine, a female witness of the caveators, and pronounced it bad, both as to truth and chasten

The counsel for the caveators asked this witness, who they had ever heard say *Mrs. Balentine's*character was bad as to truth and chastity. The counsel on the other side objected to this question, and the Court sustained the objection.

The counsel for the propounders then waived the objection, and agreed that the question might be asked. The counsel for the caveators declined asking the question again, but excepted.

Yerdict for the propounders. Judgment and appeal.

*203*W. A. Wright*and JBrycm, for the propounded.

*Strange*and London, for the caveators.

Nash, C. J.

"We see nothing in this case to induce the Court to interfere with the judgment below. When special instructions .are asked for on the trial of a cause, it is the duty of the Court to respond to them, either by adopting the prayer or refusing to do so. But in the former case it is not required that the charge should be given in the words of the prayer. It may be given in such language as is most appropriate to place the principle of law contained in the prayer clearly before the jury. He may refuse to charge as required, even where the instructions are proper in themselves, if those given are, in substance, the same, and correctly lay down the rule of law. In this case, we think his Honor, in response to each prayer, has laid down the law correctly.

.To the first prayer, the case states the Court refused to give the instruction in the *la/nguage*prayed for. Ho then instructed the jury, that weakness of mind was not, *of itself \*a valid objection, as the law did not undertake to measure the size of a man’s intellect; that it did not require that he should be a wise man; that if he was between the wise and the foolish sort, although he inclined rather to the foolish, he was, in law, capable of making a last will and testament, &c.; that he must do it with understanding and reason, and if the jury should be satisfied that, at the time of executing the supposed will, William Marshall had not understanding and reason, they should find a verdict against the will; that if the supposed testator knew what he was doing at the time of making the supposed will, and that he was giving his property to the plaintiffs, and that they would be entitled to it, provided the forms of law were complied with, then they were to find in favor of tho will.” We are at a loss to perceive any error in this part of the charge; it correctly embodies the rule of law •••> it. etionóf i.o allegéd insanity of tho testator, md i; Mf/ nearly in tho ...nguagc of some of the most appro re<! writers on the subjoct.

*204The response to the second prayer embodies the substance of it, though the Judge uses a different phraseology to express the principle, and winds up by telling the jury that the intelligence and integrity of each witness were matters for their consideration.

The third prayer was properly refused. His Honor could not have charged the jury as required without violating his duty, as it would have invaded the province of the jury.

The plaintiff then requested the Court to charge the jury, that the only influence which the law condemns, and which destroys the validity of a will, is a fraudulent influence, controlling the mind of the testator, so as to induce him to make a will which he otherwise would not have made.

To this prayer the defendants’ counsel objected, upon the ground that he had not put the case upon the ground of undue influence of John M. Marshall over his father, but altogether on the want of mental capacity on the part of the supposed testator.

The Court then asked the counsel of the defendants if they withdrew that part of their argument, in which the Court understood them to argue that the paper writing then before the Court was dictated by John M. Marshall.

The counsel said they did not withdraw the argument they had made, because they considered it proper, in answer to the evidence offered by the plaintiff, to show that William Marshall, Sen’r., had dictated his will, and had assigned reasons to the defendants for making it as it was, and they still contended that such dictations and reasons *may*have been the suggestions of John M. Marshall, one of the principal legatees, who resided in the same house with the same testator, and assisted him to the door of the room in which he executed the paper writing now offered as his will.

Ilis Honor then instructed tlie j ury as requested by the plaintiffs’ counsel.

The reasons assigned Aw excepting, río ¿hé plaintiffs’ prayer _ {ire contradictory, ffhey first object because they had not put the case upon the ground of undue influence, but solely *205upon that of incapacity. “But,” said the Judge, “I understand you, in your argument, to take the ground that John M. Marshall had dictated the will.- If you will withdraw that argument I will not charge the jury as the plaintiffs’ counsel request.” They admit that the Judge understood them correctly and refuse to withdraw the argument, but insist that it was proper, in answer to the evidence of the .plaintiffs, that William Marshall had dictated the will and assigned his reasons; and they still contended that John M. Marshall *may*have dictated the will and assigned the réasons; for, he lived in the house with his father, and. had actually helped him to the door of the room where the paper was written. What is dictation, or to dictate ? Mr. Bayle says, “to dictate, is to tell another what to write; to indite ; to teach ; to show another something with authority; to declare with confidence,” and that a dictator “ is one whose credit or authority enables him to direct the opinion or conduct of another.” If John M. Marshall had such power and authority over his father as to be able to direct him how to make his will, and exerted that power to cause him to make a -will in which he is the principal legatee, it was, on his-part, the use of undue influence, and would destroy the will. But the reason assigned for the suggestion of the dictation of William Marshall is, that he lived in the house with his father, and assisted him to the door of the room where the paper was written. What effect such suggestions might have upon a jury the Court could not tell, it was, therefore, his duty to draw to their attention the difference between legal and illegal influence. In doing so, there is no error.

In the course of the trial, a man by the name of Bordeaux was examined by the plaintiffs as to the general character of a Mrs. Balentine, a witness for the defendants, and he swore that, for truth and chastity, it was bad.

The defendants then asked the witness, who he had heard say her character was bad for truth and chastity.- Upon objection being made, the question was ruled out. Mr. Phillips, in his first volume, 292, lays down, that in answer to such ev*206idence, tbe other party, on cross-examination, may enquire as to their *means*of knowing the general character of the witness assailed, and the grounds of their belief. There was error in the ruling of the Court on this point, *(State*v. *Howard, 9*New-Hampshire Rep. 475,) and for such error we should have awarded a *venire de novo;*but the plaintiff withdrew his objection and consented that the question should be put. The defendant refused to ask the question again. This waiver, on the part of the defendant, cured the error.

Pee CubiaM. Judgment affirmed.