#### *James R. Means et al.*v. *Henry Means et al.*

There is no standard for the sufficiency of evidence, to induce belief, and the various degrees of more or less, must ordinarily be left to the unprejudiced consideration of the jury.

When the execution of a will has been marked by circumstances of fair dealing, and the subscribing witnesses have been above suspicion, fully aware of their duty, and competent to perform it, an imputation of incapacity in the testator, should be sustained by strong testimony of facts, which show a defect of *168mind existing in a form that the subscribing witnesses may not have detected; and an allegation of undue influence should be proved, so that the judges of fact, having proper conceptions of what undue influence is, may perceive by whom, and in what way, it has been exerted.

In the question of admitting a paper to probate as a will, the provisions made by the paper are unimportant, if it appears to be a will, that is, a testamentary paper, properly executed by a person of sufficient capacity, exercising volition. If the paper has these requisites, no matter how it may disappoint just expectations, how unequal it may be, how it may depart from previous intimations of purpose, it is the testator’s will, and the law allows it to prevail.

Undue influence must be something which destroys free agency. Motives of almost every conceivable kind may be offered, and if the mind of the agent, free to adopt or reject the motives, yields its assent, the act is the act of the agent.

In examining questions of undue influence concerning a will, as in questions of capacity, the contents of the papel-, and previous indications of purpose made by the supposed testator, may, as evidence, be brought into the investigation ; but they can come in only as evidence pertinent to the inquiry, is this his will *1*and should not be suffered to minister to any prejudice, opposed to the license of testamentary disposition, which the law allows.

Where the provisions of the will were not so extraordinary as to furnish evidence of incapacity, or undue influence, and the evidence *aliimde*was flimsy and unsatisfactory, the Court set aside the verdict affirming their existence, and ordered a new trial.

*Before*Wardlaw, J., *at Union, October,*1849.

Appeal from the decision of the ordinary, whereby two papers, called a will and codicil, were declared to have been proved as the last will and testament of James Means, deceased, and probate whereof was granted to the appellees as executors.

The supposed testator died 22d Nov. 1847, aged about 81 years. He left as his heirs and next of kin, a widow, eleven children, and the descendants of a deceased daughter, to wit: 1. Jas. K. Means ; 2. Sam’l. Means ; 3. Rachel Means; 4. Sarah Patton : 5. Jane, (who died in his life time, leaving children, Sarah McRee and Moses McRee,) were children of his first marriage ; his widow, Isabella, was (when she became his second wife, about 40 years before his death,) the mother of a daughter, now Mrs. Wilson; 6. Harvey Means; 7. William Means ; 8. Dorcas Gordon; 9. Minerva Foster; 10. Isabella Brandon ; 11. Henry Means; and 12. Albert G. Means, were children of his second marriage.

The persons named as appellants, in the title of the case, were the only appellants; the executors were the only ap-pellees ; the other persons having interest, were cited before the ordinary, and either are content with his decision, or have failed to signify any discontent.

*169The will was dated 23d January, 1839 ; the codicil dated 10th January, 1846. To the w'fll the testator’s name is writ-^ ten “ James Manes to the codicil “ Jeams Means.”

By the will, to the widow are given two thousand dollars cash, ihe use of a dwelling house and out houses, during life, and some articles of furniture; to the two sons, made executors, is given the plantation, (containing 1400 acres, proved to be worth 8 or 10 dollars an acre, and including the dwelling, &c. devised to the widow ;). the sons James K., Samuel and William, are declared to have been advanced “ as much as I can to make my other children equal to them, and therefore” nothing more is given to them; to the children of Jane, are given cash legacies, to wit: three hundred dollars to the daughter, and two hundred dollars to the son ; all the residue is directed to be sold, and equally divided between the six remaining children, to wit: Harvey, Rachel, Sarah, Isabella, Dorcas, and Minerva, each of them accounting for advancements that are set down, to wit: Harvey for eighteen hundred dollars, Sarah thirteen hundred dollars, and Minerva sixteen hundred dollars.

The sole purpose of the codicil is to set down other advancements, which shall be considered in division between the six residuary legatees, to wit: to Sarah, an additional advancement of nineteen hundred and sixty-seven dollars, by a family of negroes, expenses in sending the negroes, and cash ; to Harvey, two negroes at six hundred dollars each, and one hundred dollars cash, making thirteen hundred dollars additional; to Dorcas twenty-four hundred dollars, to wit: cash fifteen 'hundred dollars, and two negroes, nine hundred dollars; and to Isabella twenty-four hundred dollars in negroes.

It appeared that the only land of the testator was the plantation above mentioned ; that his personal estate, as appeared, was twenty thousand three .hundred and seventy-three dollars ; that besides twelve thousand seven hundred and sixty-seven dollars, (the advancements specified in the will and codicil,) there had been advanced to Jane two negroes; to the executors, each, one negro; and to one of them, the painting of a house, about one hundred dollars ; to William, a negro, five hundred dollars cash, and a plantation and crop, which he sold for twenty-seven hundred dollars; to Samuel, his education, a negro, and a plantation, the value of which did not appear; to James K. thirteen hundred dollars cash. James K. also received a plantation of 490 acres, worth ten dollars an acre, for which he had a deed conveying a title to him, from the sheriff of Spartanburg, in consideration of fifteen hundred and sixty-three dollars, dated in 1821; which James K. said to one witness, (when he acknowledged that his father had paid for the plantation,) that he had received *170in compensation of services rendered, by him, to his father; there was other testimony, that the testator said he had paid for the place, and allowed it for Janies.

The grounds of appeal, set forth in the suggestion, were the mental incapacity of the testator, and undue influence exercised over him, “by oilier persons, especially his widow, and his sons, Henry and Albert, his principal legatees and devisees.” The only ground, urged in the argument of counsel, was the undue influence of the widow, exercised upon the testator, when he was aged, dull, and feeble.

The executors, in proof of the will, called the subscribing witnesses, viz: Thomas N. Dawkins, Esq., Doct. James Gage, and Columbus Gage, who witnessed the will; B. Johnson, (sheriff,) Henry G. Dunn, and William Keenan, (clerk,) who witnessed the codicil; each of whom testified to the due execution of the paper he subscribed, and gave his opinion, that the testator was of sufficient capacity; none of them remembered any thing, as to any error made by testator, in signing.

The appellants, then, offered their witnesses, and *the*executors their’s in reply.

The substance of the testimony is as follows, omitting what is embraced in the foregoing statement:

*Thomas N.*Dawkins, *Esq.*— 1 had known the testator long; he came to my office alone to have his will drawn. I drew it from directions h¿ gave, when only he and I were present; I cannot remember whether he brought any written memorandum with him, but I think it probable that he did. I read the will over to him, and have no doubi, that he was fully competent, and well understood it. I'cailed in Doctor Gage, and his brother Columbus, who lived near *to my*office, and along with them I witnessed the will.

The testator also came alone to my office when the codicil was drawn ; explained his purpose, and gave me a written memorandum, containing the amount of advancements, to be set down to each child. I thought it better that the particulars, which constituted the amounts, should be mentioned ; he could not remember the names of the negroes he had given; I asked him if there was no way of procuring the names, and he requested me to go with him to his wife, who was then at Mrs. Brandon’s, her daughter, who lived in the village ; I went, got what I desired, drew the codicil, read it over to him, and then called in, as witnesses, three respectable persons, those most easily obtained. He was, then, more feeble and decayed than he was at the execution of the will, but was still competent to understand what he did.

*Doct. Gage*— Had known the testator long ; thought him perfectly competent for making a will, or doing any ordinary business; the execution was before dinner.

*171*Cross-examined*— He lived 12 miles from the village; I went to school in his neighborhood, and once was called to his family as a physician. 1 never had dealings with him, or saw him make calculations; don’t recollect seeiug Mrs. Means that day; know her; she is of good mind ; nothing uncommon.

He was a money making man, who accumulated property; not very shrewd.

*Columbus Gage*— Knew testator as he passed about, rarely spoke to him, saluted him that day, recollect nothing he said, had no reason to doubt his capacity.

*B. Johnson*— Knew testator about 15 years ; he was, at the codicil, much impaired in body and mind, but I thought him competent; he knew perfectly what he was doing. Before dinner.

*Cross-examined*— Have had money transactions with him; bought from him beef, bacon, corn, &c. I never saw him make figures, but he always told me what I owed. He talked that morning sensibly, I thought, for one of his age; said that he had given off some property, and wished to make some addition to his will.

*Henry G. Dunn*— Knew testator some time; thought him competent; he seemed sensible; understood what he was doing.

*Cross-examined.*— I was about to go to muster, and was called into the office. I once bought a load of plank from him; never had other dealings with him ; at the codicil he was weak, but knew what he was about.

*Wm. Keenan*— Recollect nothing particular; nothing to induce me to doubt testator’s capacity. I was called in, witnessed and returned to my business.

TESTIMONY FOR THE APPELLANTS.

*John Galt*— Moved into the neighborhood' of the testator, in 1836, one mile off; knew him before, but not intimately.

Mrs. Means is right smart — shrewd.

I have had many dealings with the family. At first I did not know who controlled, but found out; for when I would speak to the old man, he would say, “ go to the boys, (Albert and Henry,) if they will do, well; I have nothing to do with the business whatever.” Again: *“*they have their own way, won’t mind me, 1 can’t control them, and have quit trying.”

In 1836 Wm. Means was manager, went off; and in 1837 Albert and Henry took charge, lived in the house with their father, and continued to manage as long as he lived.

I saw old man ride to field, and give some directions; Henry, there, paid no attention; old man complained. I spoke to Henry, saying he should mind; he answered me *172“no, the old man is troublesome; we go our own way; he is hard to get along with.”

Old woman told me, *“*you are a trading man, get a cheap, easy riding horse for the old man.” I said he ought to have better than a cheap one. She said “ no, let him have a cheap one.”

Old man, speaking of a trade in which he got a blind mare, told me that he had been a man that could trade, but now was imposed upon; requested me to trade off the blind mare; said he had a young sorrel that would suit, but his people would not let him have the sorrel; that he was not able now to trade for himself.

In 1837 he came to my house walking ; said he had nothing to ride ; proposed a swap to me. I gave him a colt for his blind mare. Afterwards, in 1841 or 1842, he agreed to give the colt and twenty-five dollars for Cowdriver; but “ stop,” says he, “ let me see the old woman.” She came, and said “ swap, if the bridle is thrown in.” The swap was made.

In speaking of his property, the old man always said he intended to do what was right, he would divide, equally, amongst his children. He said James K. had made more money for him than any boy he had raised.

He drank liquor more or less, and went to bed every day ; when he got too much he was cross; pleasant to me, but seemed to have little comfort in his family.

The old woman had what she wanted; controlled when she pleased. He never transacted his own business, at any time, since I became acquainted with him. The old woman and boys ruled about the house. She could have controlled him ; I knew she did.

*Cross-examined*— Albert and Henry, good managers. He took morning drams; would ask me to drink with him; sometimes did so. I think any body could have controlled him when he was pleasant. I asked him for ten dollars, I wished to borrow for a particular use. He said he had about ten dollars, all that he had. I said, you have a great deal of money. He said “ oh yes, there is money at the house, but I don’t get it.” There was a good property there, and no squandering; sometimes he might lose a few dollars by a bad horse trade.

Mrs. Means was a good help-mate ; a careful, prudent wife.

*John Wright, Esq.*— Went into neighborhood of the testator in 1823, three miles *off;*quite intimate with him. I kept a store, and he was a customer ; we went to the same church.

In 1834 or 1835 he was at my store, he remained late, till-all company had gone, then commenced a conversation about his property ; said he had not given James K. as much as he should, that he should have given him a negro. Twice he *173filled up with tears, and walked out. I told him to come with me to Charleston, sell his cotton, and let James K. have^ money to buy a negro. He said “ I can’t do that, they watch me too close.” At other times he spoke of James K. as a dutiful son ; spoke affectionately of all his children ; James K. was oldest.

I have frequently heard him say, that the law made a better will than he could make.

In 1845 he was giving off a good deal of his property to his children. I told him that it would be well for him to divide more, if he kept a competency for himself and the old woman. I particularly mentioned Rachel, who had always lived in his family. He said that he had made a will, and had provided for her. Sometime afterwards, he and Mrs. Means were at my house, she introduced the subject of the advice I had given him about Rachel, and said “ what do people mean by their talking about Rachel; she’ll get her part; I don’t wish her to have property *there ,*but I have no objection if she’ll take it away.” The old man said “if they make a fuss after I’m gone, I won’t be here to hear it.”

He seemed not to have confidence in his own judgment; rarely did much without assistance. He often asked me, concerning some person living near by, “ who’s that ?” His intellect was not above ordinary; his mind dull. I frequently made simple calculations for him.

In 1823 or 1824 he was appointed a Commissioner of Free Schools ; he objected to accepting, saying he was not fit. I was teacher then, and insisted upon his coming ; he came with me to the meeting of the Board ; assented to claims, till he thought the money gone, and then qualified by saying “yes, if you have money enough.” I wliispered to him “if the money fails, the commissioners have it to pay.” He was once a Commissioner of Roads. He was an industrious, economical man, who could make money, and take care of it.

Mrs. Means’s mind was as good as common ; above a great many ; quicker than his; stronger.

I know of one thousand dollars James K. got a few years after the conversation about him; borrowed at first; then testator told me to tell James K. not to mind about that money. Afterwards I understood the note was given up to James K. James K. lived with him four or five years after I went into the neighborhood.

*Questions.*— From your knowledge of Mr. Means, did he have capacity to comprehend the amount of his estate, so as to divide it equally *1*

Could he comprehend any other transaction involving so much property *1*

*174Had he capacity to make a will, judging from your intimacy and knowledge *1*

From your knowledge, had the testator capacity to comprehend the property given off, that disposed of, and that retained, so as to make an equal distribution ? *(All overruled.)*

Before the date of the will, I have heard him say that he could not make a will; that he intended all his children to bo equal; that, in the way his property was scattered off, he could not make a will.

I traded with him in the store, without hesitation; he bought only small purchases.

Plis memory was like that of other old men ; not good of recent transactions.

I do not know what was given to James K. and Samuel, besides the one thousand dollars to James K. The shares of Henry and Albert are greater than James K’s. or Samuel’s, so far as I know.

I was occasionally at his house ; knew of no special control of the old woman; he was easily influenced. I have no reason to suppose that he was influenced.

*Cross-examined*— He was appointed, under order of Court, commissioner to value lands, four or five years before his death ; I was on the commission. He also valued lands for me; I did not object. I served with him, too, in appraising •negroes. He was not prompt to give his opinion before others. He paid over to his church the balance of money left from a subscription made for a grave yard.

I spoke to him about Rachel, from friendship to the family, at the suggestion of James K. I had heard before that he had a will, but that was the first time he mentioned the will to me.

He often said to me that James K’s. was a valuable plantation. I think it is worth ten dollars an acre. I do not know the quantity.

He kept good horses, and in good order. He had a good property, which, I suppose, was made *there.*I suppose the crop was 40 or 50 bales of cotton.

In valuing negroes he and old Mr. Jones were not aware of a rise, and valued them for less than 1 gave for them.

William had charge 3 years. Harvey was older than Henry and Albert, but I don’t know that he ever had charge. Henry and Albert are industrious; good managers. I do not know the terms on which they managed. Cotton was sent to market. Formerly the old man went with it, but he quit soon after I went into the neighborhood, and the sons went.

Some of the church money was paid over after his death. A few years before his death, he bought one negro, and *175sold one; he also bought a horse. I knew of no other prop-

In Jan. ’48, Mrs. Means sent four hundred dollars to Mrs.'' Wilson, her daughter, about thirty of this borrowed from me. The testator before his death, gave me one hundred dollars to take to Mrs. Wilson; he said he was going to give one hundred dollars to each of his children. James K. said he got. his hundred.

*Ben. Arrowwood.*— Knew him, perhaps, 20 years ; once I rode to factory with him; talking about Fair’s will, he said he wanted no such doings about his little. I said, perhaps you have made a will. He said *“*no, the law makes a better will than I can do. My feeling is to make all my children equal.” I said, “ you know it is given out, in the neighborhood, that you keep an account of what you have given to each child.” He said “ no, I have kept no account; I leave each one to do that for himself.”

I have frequently heard him say he could not have his way. As I ploughed he would ride along in a furrow beside me and chat; has done so for hours. I asked how they came on at home; he would say, “I don’t know, I don’t have my way.”

I have had dealings with him; he never, as I saw, made any calculations. He held a note on me; I wished to pay it; he would not take the money, till Mr. Foster came and calculated the interest.

Mrs. Means is a shrewd old woman. In some cases he seemed weak, in others sensible. He could make money, but had no confidence in his own judgment. He took a spinning machine on trial; insisted upon his wife’s keeping it, but she would not; so it left his house, and I bought it. I recollect no other instance of her influence over him.

He drank; sometimes to excess; became stubborn, after he reached a certain point in drinking.

*Cross-examined.*— William was in charge when I went into the neighborhood; afterwards Henry and Albert; good crops, and good management always. I live a mile from him. He bought a negro from Thomson, and sold two in his latter years. He bought another boy, and gave him to Albert; he said /Albert was cast down, and he bought the negro boy to lift him up.

*James Thomson:*(his testimony before the ordinary, in writing, taken by consent.) — Quarrelled with the testator in 1837; not intimate afterwards; thinks his mind was ordinary, not strong; he made no calculations; could make trades, and trade well. He was not, in 1837, competent to dispose of his property. His wife could influence him.

*James Lee.*— Lived near him. In May, 1846, I went to buy 10 bushels of corn from him; he said he had no corn to *176sell, that he had made none the year before; after he was through, Mrs. Means said “ we have corn to sell, and you can get what you want.” He said “ well, if you do get it, y0U mUst pay a dollar a bushel.” He took me out, shewed me his crib of corn of 1845, which he said he was keeping for bread, which was all the new corn he had. I got 10 bushels, at one dollar a bushel, of the old corn, crop of 1844.

*Docl. Morris Moore.*— Knew the testator many years; intimately since 1833. In 1845' I fell in with him a mile from his house; he rode on with me past his own house, where he wished me to stop, but I would not; went 2 or 3 miles beyond, talking in great concern, and crying almost all the way.

I spoke of having met Jones removing to Tennessee with negroes, and said I did not think Jones had so many negroes. He said “he is taking 4 or 5 (which he named) of mine to my daughter, Sally Patton.” He began to cry; seemed in great distress about property; said “ they have sent off three negroes; they have sent off all the young ones, and I can’t do more than make a support with the old ones.” Seemed to want my advice how he should dispose of his property ; said that he could not satisfy all his children, and that, at times, he was sorry he had any thing to leave. He was much affected. I said, “don’t be troubled; do justice; I suppose you wish to do equally for them all.” He said “ yes ;” and then said that James K. and Samuel had got their shares. I spoke of Rachel, and advised that something should be given to her. He said he could not give off any thing to her, for she could not keep property there.

I afterwards bethought me that money might be given to Rachel, so that she should have the interest, and in 3 or 4 weeks called and told him so. He seemed not at all to recollect our former conversation ; said “ oh ! I have given her some money,” meaning pocket money. Seemed not inclined to talk, then, about his affairs.

*Question.*— What was the grade of his intellect?

*Answer.*— Dull, prosy, of moderate capacity.

In 1836 or 1837, he was treasurer of contributions about a grave yard; about 10 days after he had received money, I went with James K. to assist him in making a settlement of it; he was utterly incapable of making the settlement by himself. Some surplus remained in his hands, and the church directed him to let it out at interest.

Mrs. Meanswasashrewd, managingold woman; something younger than he; superior to him in intelligence.

Once, between 1837 and 1840, he wished, as he said, to go to Columbia once more to buy a carriage; he and I arranged to go together. I went to let him know the time, but the old *177woman would not hear of it. After' the chat I asked him, *“*well, what about this trip?’’ He answered, “the old woman wont let me goor words to that effect.

An old oak stood in the grave yard; some wished it down, some not; he told his negroes to cut it — they began; Mrs. Means said “ oh! spare the aged oakand he told the ne-groes to stop.

Henry mainly managed his business.

*Cross-examined*— Sally was of the first marriage.

In second conversation, he told me that he had provided for Rachel in his will.

The old woman’s objection to his going to Columbia, was that he was too old and cfeeble, and could not stand the trip; no bitterness.

He had taken a dram I suppose, but was not maudlin when he cried on the road.

*Charles Cunningham.*— Knew the testator perhaps 50 years ; 2| miles off: since 1835 intimate in his house; know his wife.

Question.— *What is your opinion as to her influence over him 7*

*[Objection*— argument—Herndon cited Fair’s will, 2 Spear, 1 Green. Ev. 516, sec. 440 to 3; 2 Phil. Ev. by Cow. & H. 760, No. 539 ; Thomson cited 5 Ec. Rep. 45.]

*\_Ruled*— Reasons and facts must be stated; circumstances from which influence may be inferred, and the witness may, then, state the conclusion he drew.]

Heard testator speak of young negroes sent off; in 1845; that they were keeping only old ones to make a support. He said he had nothing but “ *old Ball”*a sorrel horse; that the boys 'had taken every thing else; crying, when he said so.

I went to get help from him; asked about the hands; he said he had none, I must go to Henry.

As I ploughed, he would ride along beside me, talk and cry; said he had no control; that he could not have his own way; that the boys would not attend to him. This from 1835 (when I went close to him) up to his death.

Upon one of his visits to me, he wished me to say what share of the crop I should give the boys for attending to his business — he insisted; I told him that for 1-10 he could get the best overseer in the country. But, he asked, what shall I give these boys ? I said 1-6 ought to satisfy them. He went off; returned and said he had agreed to give 1-5. A third time he came with a paper, being a written agreement, by which, as I understood, he was to give 1-5 of every thing made on the place. I told him that was tight; he went, saying he would have that altered. I didn’t know the hand writing, and never saw him write. Afterwards, when I was *178at his house one night, the old man said *“*we had better have that fixed again;” meaning this writing; but Albert put it off, saying some other time.

Testator was not one of our smart men; his wife was a smart woman.

In 1836 an old house of 'his was burnt where old Carson slept, a shoemaker who had been living about the old man’s family for 20 years. Next morning I heard the old woman say, “ I have wanted Carson away, and now he will have to go/’ Soon after Carson went. I frequently heard the testator say that, if he had his own way, Carson should not have gone; he afterwards visited Carson, and took necessaries to him. Carson had taught a boy, Bof>. *to*make shoes, and the old woman said “we have no use for Carson now.”

Testator never spoke to me of a *will*by that name ; but I understood him several times to mean making of a will, when he talked of *fixing his business.*He spoke three times of having had his business fixed; of paying Dawkins. I was at his house the night before the third time. He said he had been down twice getting his business fixed, and had to go back the next morning. He and she came to the village next day. After his return, he said he reckoned his business was fixed now so it would do; afterwards, in conversation, he said “ James K. and Samuel I don’t think will get any more.” I said “ they have not got much yet.” He said “ oh yes, I have given them money ; a heap; agin the rest are made up equal to them, there wont be any thing left.’’

Selling meat or flour was referred always to the old woman.

I thought she could rule him from these circumstances.

Sometimes he drank too much; was generally in bed then, and had not much to say. He was quite old; 72 or 3 when he died, *(older by other statements.)*

James K. lived with him till he was about 30; very industrious and successful, and old man was well pleased with him. The latter crops have been 30 to 50 bags cotton.

,The plantation, left to the two younger sons, contains 1400 acres, worth eight to ten dollars per acre.

*Cross-examined.*— I do not think I am able to make a will. I would not draw it I know, and I hardly think I could designate how to do it.

Testator and wife were affectionate; I think she could turn him to her notion.

Carson was a slow working man.

I recollect only twice Mrs. Means accompanying him on business. Once she went with him to Jones’s, to see about negroes to be sent to Tennessee; 3 to Sally Patton, and one to Harvey; the old man, afterwards, took the negroes to Jones by himself.

Mrs. Brandon, daughter of testator, lived in village.

*179He was a healthy, stout man of his age; had, before his second marriage, burnt his hand by falling into the fire in a fainting fit. Sometimes he was right fractious. I told Henry he had a hard row to get along quietly with the old man'.

They made good crops; he was not capable of attending to the plantation himself, and for many years some one' or more of his boys had had charge of it.

As to his will, I think he was not scholar enough to have figured it up; the property given off and scattered; he' had not mind enough.

*William Tramel.*— Knew testator since 1825; often heard him speak of his affairs; that the boys would not let- him have his way; would not let him whip the negroes when he pleased; would never tell him what they were doing; he had himself and old Ball, no more. When I would go to him for hands to help me cut wheat, he would say “ go to the boys, I have nothing to do with it.”

Once his wagon started to Columbia; after seeing it on for some miles, he and I returned; on our way back, talking about how they fretted him, he- said he would as soon lie down behind that log and die as go home. I told him not to mind; to do as he pleased, and let the boys do so too.

He would ride along by me as Í ploughed ; said he had nobody to oversee but me; they would not let him oversee at home; sometimes he. would cry.

He often visited me. In 1839, (time doubtful,) after being at the Court House, he said to me “ we have been at the Court House making a sort of a will.”

He said he allowed his land to the two boys, but he did not know what good so much land would do to them with nobody to work it.

The old woman was smart; had her own way; went where she pleased; often went about with the old man.

*Cross-examined.*— “ *Allow land for boys”*— I heard several times; often.

He said he allowed Samuel had his share; that money was spent in his *larnin;*Samuel was educated for a doctor, but didn’t practice. I left the country in 1845.

From 1830 onward he visited me, rode as I ploughed; complained from the beginning that he had no control. James K. had control in 1825; in 1830 Albert or William.

*“ Lie down and die by log*I think about 1834 or 1835; said then they would not let him whip the negroes, and ne-groes would not mind him.

He said James K. was the best child he ever raised; managed best. William, he said, was *contrary.*When he gave up the note for one thousand dollars to James K. he said' “ I reckon James K. and Ins wife will now let me alone as long as I live; if any thing more is coming, he will get his part at *180*my*death.” He was close about his money. . He spoke to me of a note he had on a gentleman here, and said he meant to collect it as soon as possible.

*Rachel Means*— (objection for interest; objection overruled.) — I am not interested; I am a daughter of the testator, but will not receive so much, if the will be set aside, as if it stand.

My father was, as well as we could ascertain, about 81 years of age when he died; but we had no record.

In Dec. 1827, or Jan. 1828, father was very low, and *cousin*Harvey Means came to draw his will; Harvey proposed; father said he would think of it; Harvey returned; father said he did not know how to make an equal division of his property: that the law had made a better will than he could make. Before Harvey came back, mother said the old man did not know how to make a will. When Harvey came back, she had ready a paper dividing the negroes; Harvey said he would have nothing to do with it, if it was to be made that way. I do not recollect how the negroes were divided ; we talked that she had taken the best for herself and her own children.

James K. left father’s in March, 1827; William took charge then; left in 1835 or 1836; then Henry, and Henry or Albert or both till father’s death. There was no complaint whilst James K. managed; but William said the negroes were his; took entire control; said father should not promise them to the neighbors, for they should not go. Often Henry and Albert said to the negroes, “don’t mind him, mind us, or, we will whip you.” Father said they would do merely to contrary him; would not do any thing he wished, even if it was right.

I have heard mother say to him that James K. and Samuel had got their full share; he would say “ that is your notion.” This was in 1844 and before. She never enumerated what they had got. In 1844, when father was not present, I proposed to her that they should bring back what they had got; she said she was content with what they had, .and did not wish them to bring it back.

I have heard her say to father that she had brought property there, and had got some at her brother’s death. I knew that she got two negroes at her father’s death; She said her children had been at no expense; that she had taken boarders and paid the expense of their schooling. Pa said, “ how could you board without provisions being laid in for you ?” Mr. Foster (afterwards husband of a half sister) was a boarder for four years.

■About the time Mrs. Brandon married, father said he wanted his business fixed; did not know what he had given to each ; warn ted each to have an equal part; seemed much dis: *181tressed. I proposed that he should fix it whilst he lived; that each should give in what had been given off; mother said he did not want to give off any more negroes. I proposed that he should give money; she said no money should go.

In 1844 he recovered from a spell; had his notes added up; and they, then, amounted to four thousand seven hundred and eighty or ninety dollars.

When he gave the last negroes, he said he did not know what he had given before. After he collected money from Clowney, he'said to mother that he would pay it over to Jas. K. for Moses and Sarah McRee, (James K. was their guardian ;) she made no reply, but got up and walked away.

When Jane McRee went off, in 1828, he gave her two negroes, one grown, the other about four years old. He was well satisfied with her match, and fond of her children.

The fall before the codicil, mother said to me that he had made a just will; one that all would be satisfied with, that would be satisfied with just things. Soon after Mrs. Brandon was married, she wanted him to come to the Court House ; he said he was not well enough; they talked of it two or three days; at last he consented, and they came the day after Charles Cunningham and his wife had spent the night at our house.

Father never added accounts himself; in any settlement he had assistance. Mother was a sensible woman; would not be satisfied if she did not have her own way. If she could not do one way, she would try another, and keep on till she succeeded in any thing of importance.

She almost always joined her sons, if there was any difference between them and father. She wanted father to give money to Henry to buy a negro. He said they were always wanting money, never satisfied. She said that he, then, gave Henry $200. She afterwards proposed that Henry should give back the $200, and leceive the boy, Berry. Pa said that he did not think it was right for him to give off property after he made his will; she said that anything he did in his lifetime would stand. I understood that a deed of gift was made to Henry of Berry; with five or six hundred dollars.

William got a plantation, and boy Sirus. Plantation sold for $2,700; and a crop made on it by father’s hands was also sold by William. Sirus was, then, worth about $800.

In 1845, $500 was sent to William ; he is anxious that the will should stand.

James K. got no share when he managed ; all was, then, satisfactory. He has received, in money, $1,000, $200, $100 —$1,300 ; no negro; nothing else that I know of.

Once mother wished father to go on an errand; he got *182upon his horse with Tom, a little negro boy, behind him Henry said Tom should not go, and ordered him down; "'father said no; after awhile Tom got down, and Henry whipped him for not getting off at once; father said, “you had better drive me off the plantation.” Tom had frequently gone with father; we did not consider it safe for him to ride by himself, after his having had a paralysis.

*Gross-examined.*— James K., when he left, went on a plantation; it had belonged to one Kelsey; had been sold at public sale; bid off by whom I don’t know; father went to Spartanburg, where it was sold, the day of sale; said he allowed James K. to have the land; I heard him say the land was paid for; it was a tolerable plantation; I can’t say how much, nor what worth.

Mr. Wallace Thomson came to my house last week, and wrote down my answers to some questions.

I never heard father say that James K. and Samuel had got their share.

I never spoke to him of his will; had heard that he had one, but did not know it till mother told me, in 1845.

Father had been stout, but had failed much in the last ten or fifteen years of life; complained much before 1844, but rode about to the last; had several spells of fever.

He was sick in bed when Harvey came to make a will; the neighbors thought that he ought to make a will; all thought, then, that he could make a good will; he was better in mind, then, than he was ten years afterwards. The memorandum, or division that mother drew up then, lay about the house for several days ; some weeks before father got well. Nothing was afterwards said about a will for some time. He said he did not intend to make a will; she said he would not make a will.

I did not know of his purpose when he came to the village ; mother came with him several times.

From his talk about others, I knew that he supposed the widow, by law, took only a child’s part; not one-third.

The negroes, which mother got from her father, have increased ; I believe to 14; of them, one girl, who has children, was given to Mrs. Wilson, in Georgia, and some are in Mississippi.

These children boarded at our house three months.

Up to 1827, father had his health better, and could see more to his own business.

The affair of the boy, Tom, was in 1846. Tom, then, six or eight years old; father sometimes fell off his horse, and Tom could run to make it known. Sometimes father struck Tom with a stick. He would be fretted when the negroes would not mind him, and 1 have sometimes told the little *183ones to keep out of his way when he was angry. He would throw at them, but never hurt any.

He spoke of fixing his business about the time Mrs. Brandon got her negroes.

He did not give to Jas. K. the money from Clowney. He had heard rumors; told ma; she made him inquire more about it, and then he sent word to Clowney he wanted his money.

When she wanted him to go to the village, he told her the boy eould drive her; she did not go till he went with her; sister was living here. I do not recollect his ever coming any but that one time.

Sometimes they differed in opinion about the management of affairs. She said we ought not to think hard if she did wish her own children to have more.

Father told James K. to have his house plastered, and he would pay for it; expect he did pay.

Request of money to buy negro for Henry, was in January, 1845. I live at the house of James K.; have been there since father’s death.

I have heard Henry and Albert tell the negroes they would whip them, if they minded what he said; sometimes they told the little negroes to mind him; they would call the negroes away when he was talking to them.

James K.’s land never belonged to pa. James K. lived, with pa about seven years after he was of age ; he received nothing, as I know of, for his services, unless in this land. I never heard anything particular what the land was for. Mother pressed him about Clowney’s note.

I heard Henry say to pa, “ shut your mouth, or I’ll stamp you.’’ I interfered; he said if I did not hush, he would stamp me.

Arrowwood, recalled: *(offered to re-examine as to his opinion*of *influence*— refused.)

*John Wright, Esq.,*recalled : *(same offer as to him*— refused.)

*Deed.*— James Hunt, sheriff of Spartanburg, to James K. Means, 1821; tract of land, 491 *acres;*consideration, $1563.

*By ordinary, Mr. Pratt,*

Appraisement of estate, $15,689 95

Debts due to estate, 4683 72

Expenses, debts paid, &c. $20,373 67 172 82

$20,200 85

Receipt of Mrs. Means to the executors, 1 Jan. 1849, for $342, in part of legacy to her.

*184REPLY BY THE EXECUTORS.

*Herod Gibson.*— Knew the testator forty or fifty years; near i frequent intercourse. In 1846, he went with me to see a thrashing machine ; we were together nearly all day; on our return he showed me a near way through woods and old fields; took his course with as much judgment as any body, and knew all .the crossing places. He spoke of his crop; said he had given control to his two sons, and that they managed well.

I saw no change in him at all, till about 1845, or 1846; in 1839 there was none. Nothing in his conversation attracted my suspicion in 1846; he told me of a great many things we had frequently talked of before.

*Cross-examined.*— I suppose I could have found my way without him, but not so easily. I never saw him write; he has owed me, and paid me after I had worked.

I thought him smart; he made much property. His wife was smart as common, or little more so; very industrious. I was often at his house; don’t know of her control; she had her way, as other women have.

*Dr. James B. Hix.*— Lived in the neighborhood 1841 and 1842. Practised in the family three years; fished with him; hunted with him ; rode over the plantation with him ; had much talk about farming and other subjects. Nothing ever excited in me any doubt as to his understanding. Sometimes he would not remember dates, but would facts.

I was at his house often ; when he directed it was done ; when he wanted he got it. I saw no attempt to control him. Between 1840 and 1843, he bought a negro man from Mr. Coon; told me had bought, and was going to pay; the negro went from Coon’s to his house.

*Cross-examined.*— I was there as physician and as friend.

*Thomas Gist.*— Saw him frequently 1841 to 1844 ; particularly the latter year; rode with him often. He fancied a mare of mine ; we tried to trade, but he did not, I thought, offer enough. I thought him' keen in a horse swap, and would have dealt with, him as readily as any body.

After 1840, he came to my father’s, and hired a negro blacksmith.

*F. W. Eisin.*— Knew him ten or fifteen years; saw him occasionally; served with him as appraiser of personalty of Thomas Howard; and again as commissioner concerning the real estate. He acted as one of good understanding; nothing induced me to suspect deficiency.

Cross-examined.— *Question.*— From your knowledge of him, do you believe that he was competent to make a will of property scattered as his was *1 (Not pressed.)*

I was seldom in his company; never in his house but once; he was not as smart as some men; not of business habits; I cant say dull.

*185*Wm. Norris.*— Know testator twenty years. In 1842 and 1843 had transactions with him. T hired a negro plasterer to him, at *$*1 a day; passed his house after two weeks; Mrs. Means spoke of having a contract made, by the job, which I was willing for; but he said no, he was pleased with the boy, and would rather hire him by the day. Afterwards he told me would pay for work done for James K. and Albert, but did not wish me to let them know. He paid me by giving credit on my note. When we settled he said work by the day was better than by the job, and he made a present to the boy.

He was, then, a man of ordinary mind; nothing induced me to suspect a deficiency of any of his mental powers, beyond what every man, of his age, is subject to.

*Cross-examined.*— He was not very quick; I know several men of equal property, not superior to him. His wife was shrewd.

He was of good sense; did his own business well.

*Nathaniel Gist.*— In neighborhood 1840 and before, sometimes at testator’s house. I was once there fox-hunting; he advised me that I had better be at something else; disliked his fences pulled down. Albert had previously gone with me; quit, as I supposed, because the old man did not like it. I remarked nothing indicating weakness of mind.

*Cross-examined.*— Hunting was in the fall. Mr. Norris’s residence about nine miles from testator’s; my father’s about two and a half miles. Albert had two hounds. I thought the testator competent to attend to business; may have been slow. Mrs. Means shrewd.

*William Little.*— In August, 1835, or 1836,1 was at the testator’s house, a day or two every week, for two or three months; mostly in company with him; and, about the time Albert’s house was plastered, he came to my house fora sand-seive.

In 1835 there was no deficiency, but old age; for the three or last five years of his life, he seemed to fail; I saw him frequently; I would, at all times, have traded with him.

*J. C. Kitchens.*— Knew testator abont twelve years. In 1839, I went to buy beeves from him; saw Henry first; he sent me to the old man, who took me to his pasture, showed his cattle, and fixed his prices; I bought none, because I thought the prices too high. I afterwards bought corn, bacon, and beef from him; I saw no defect in him. After 1844, I saw him in the village half a dozen times. He was not as quick as some men.

*Reuben*Colman, *Esq.*— Five or six miles from him ; saw him frequently, and conversed with him at elections, tax» gatherings, &c.; never saw anything showing weakness of *186his mind. About two years before he died, he quit going about.

*Cross-examined.*— I never at his house but two or three times; I had no business transactions with him. He was a man of ordinary talents; easy; of few words.

*Charles Me Whorter.*— Live about three miles from him; saw him frequently for many years. About 1833 or 1834, he ginned my cotton. I told him I could have it done for 1-12; he aSked 1-10, and said that was his rule. In talking, he showed me how the toll could be ascertained, by cutting off the sight hand figure; it was new to me.

He and I had a conversation about my father’s estate, in 1842, or thereabouts. He talked about it very reasonably.

About 1841 he came to buy potatoe-seed from me ; said his negroes had been negligent in putting up seed; a boy that came with him had lost a sack, and he scolded about it; he bought seed from me.

He was rather a queer man ; would plead himself poor; was slow in giving his opinion; cautious. I would have traded with him; thought him competent.

*Cross-examined.*— I never saw that mode of tolling but that one time; the boys did it differently.

*Jesse Hyatt.*— Knew him twelve or thirteen years; saw him frequently passing about. In 1844,1 saw him make a horse swap with Levi Williams; there was a contention of half hour or three quarters before the trade. In the latter part of 1844, I and Albert had- been talking of a horse-trade, and agreed if the old man was willing; the old man was called and told of what we had agreed; he said if the nag suited the plantation, he had no objection. 1 was to receive $15 to boot. He asked me if I would take anything besides money, saying we have wheat. I took wheat at seventy-five cents a bushel. I went back for the wheat'; he took the keys to the barn; I measured two and a half bushels for a turn to the mill; he held the bag for me.

*William Beaver.*— I live one and a half mile off; saw him frequently, and had many little trades with him. In the fall of 1836, I borrowed from him the surplus money from the grave yard, which he said had been left in his hands to be lent; I kept it till 1842 or 1843. About a year after I got it, he came to see me; wanted the note renewed; said that was a common rule with him. I renewed it every year whilst I kept the money. I paid it at old Mr. Shrink’s sale ; he came a few days before, and told me the money was wanted for repairs on the church. I offered him what I had, a part; he was not willing to take that; finally accepted it, upon agreement that I should pay the balance at the sale. He attended there with the note.

I have bought a horse from him.

*187From 1836, when I first went into his neighborhood, to a spell he had in 1844, there was no change; some afterwards.

*Cross-examined.*— I was seldom about his house: he was ,. *'*an ordinary man.

When he brought the note to the sale, the calculation was made on it. He always brought the renewal note with him,' when he came for renewal. I never saw him write.

*2 homas Fowler.*— 4 miles off; frequently saw him. I returned to him the balance of money left with me to buy whiskey; he knew the amount. In 1845 or 1846, he wanted to hire a shoemaker, and came to me to recommend one. In 1846 he came to me about hands to help in cutting his wheat; said the boys had got behind.'

I knew him as well as I did any body in the neighborhood ; I never noticed any weakness of his mind; he was competent to trade; drove a bargain well.

*Cross-examined*— 12 or 15 years ago he bought a wagon at my house ; was two days in trading, the 5th chain parted the bargain for two hours.

*Samuel Mays*— Four miles ; knew him as long as I can remember. I heard him say that he had paid for Sam’s plantation, and given him a negro boy. Sam still has the jfian-tation; I don’t know its value.

I have heard James K. say that his father paid for his plantation ; that the old man had given it to him. Oldman told me he had also given James K. one thousand dollars.

I have done much smith work for testator; never discovered any defect or failure in him till 1845; then he once commenced talking to me of the children of his son Harvey, and asked me if the children would be able to take care of themselves; I was astonished that he did not know they were not able, as they were mere infants; I then thought something was the matter with him.

*Cross-examined*— Testator did not say how much he had paid for James K’s plantation; but that he had given it. Janfies K. said that he had served eleven years, and never ■got anything but this plantation; James K. was dutiful and industrious; he considered that the plantation was to pay for his services.

I think the testator was a man of as much judgment as others; no politician, but a judge of property.

I have seen bills (of parcels brought from market,) handed to him, and he would look as if he was examining them.

Mrs. Means'a smart wile.

He said “ I have paid for Sam’s plantation, and given him a negro; I have no negro that James K. will have, and I have given him one thousand dollars.

It will be seen that Rachel Means was admitted as a witness ; and that the mere opinions of witnesses, as to the in*188fluence charged against Mrs. Means, were excluded, although some witnesses were permitted to state the conclusions which they drew from the facts and circumstances testified to by them.

In commenting upon the various views which were taken of the provisions of the will, and of the advancements which had been made, the Circuit Judge held, that if a plantation was given to James K. he would, in a distribution under the statute, be held to account for the value of the plantation; but if money to buy a plantation was given to him, he would account for the money only.

His Honor submitted the case to the jury, with full instructions, such as the executors have not objected to. He thought the evidence of influence was flimsy and unsatisfactory; but the jury thought otherwise, and found that the papers propounded, were not the last will and testament of James Means, deceased.

The executors, Albert and Henry Means, appealed from the verdict of the jury, and moved the Court of Appeals for a new trial, on the following grounds:

1. Because his Honor erred in ruling that the witnesses, on the part of the appellants, should be permitted to give their opinions upon the effect of the influence of Mrs. Isabella Means, upon the testator in procuring the will.

2. Because there was no evidence of influence exercised by Albert Means or Henry Means.

3. Because his Honor erred in admitting the testimony of Rachel Means, who is a legatee under the will, as •«'ell as an heir at law.

4. Because the Court charged the jury that, according to law, James K. Means would only have to account for the money which his father paid for his land, as an advancement, and not the value of the land.

5. Because the verdict of the jury is wholly unsupported, either by law or by evidence.

*Jas. B.*Dawkins, for the motion.

*Herndon <Sf A. W.*Thompson, contra.

*Curia, per*Wardlaw, J.

The report of what occurred on the circuit, states that the grounds of appeal set forth in the suggestion, were the' mental incapacity of the testator, and undue influence exercised over him “ by other persons, especially his widow, and his sons, Henry and Albert, his principal legatees and devisees;” — and that the only ground urged m the argument of counsel was, the undue influence of the widow upon the testator, when he was aged, dull and feeble. In this court, the executors have urged only their last ground of appeal, and the chief effort of those *189who oppose the will, here the appellees, has been to uphold the verdict, as the conclusion drawn from the testimony that representation of the country, whose province it is to judge of facts.

This Court feels, and often shews by its decisions, how absolutely necessary it is, in general, where there has been no misdirection, to sustain verdicts upon. facts, even against strong impressions to the contrary, which reports of the testimony may produce. In one case there has been conflict of testimony — many witnesses on one side, all fair upon paper, may have been disbelieved, and slight testimony on the other side, from the character and manner of a witness, or circumstances which attended the trial, and fell within the observation of the jury, may have justly acquired force, which cannot be here appreciated. In another case, where there has been no conflict of testimony, an inference of fact, seemingly rash, may have been drawn,. or one seemingly strong may have been rejected; but there is no standard for the sufficiency of evidence to induce belief, and the various degrees of more and less, must, ordinarily, be left to the unprejudiced consideration of.the jury. The great delays and expense of new trials, the temptations which they hold out for trickery and perjury, after the full exposure of the case has shewn the weak and the strong points on either side, and the unfitness of this Court for the vain attempt to discover and correct all errors of fact committed by juries, all urge strongly the propriety of usually adopting the verdict as a final re7 sponse to every question which was involved in the issues submitted to the jury.

But a power, lodged somewhere, to grant new trials upon facts in proper cases, is an essential element in the theory of jury-trial in civil cases; without which, a jury, soon sinking into the multitude from which it was drawn, might become more irresponsibly tyrannical than a single Judge could be, if his decisions were subject to no appeal. Sometimes juries err, not in judging of the facts, but in applying the facts as they find them to the law — either misapprehending the law, or refusing to administer it. They, no less than Judges, are bound to follow the law — but if they, in truth, have not done so, still their general verdict is presumed to have been rendered with due understanding and observance of their duty, and thus, a ; result which was reached by their making law different from that which they received from the bench, is ascribed to their finding facts different from those which were supposed to exist. On particular subjects, this tendency of juries to usurp legislative power, arises from prejudices general in the community, and in nothing has it been more strongly exhibited to the view of the Court, than in setting *190aside such wills of old persons, as have defeated the seem-jng]y just claims of some worthy expectants.

The right to make a will, is especially valuable to the old and infirm. Their thoughts dwell most upon posthumous arrangements, and in this right, they have the' means not only of gratifying their feelings, but of securing substantial advantages whilst they live. Just in proportion to the circumstances which raise the value of the right in any particular instance, is usually, however, the danger on the one hand of that being produced for a will which is not the will of the testator, and on the other hand, of his wishes legally-expressed being defeated. To guard against the former, statutes have prescribed for the execution of a will, peculiar formalities, in addition to the requisites of capacity and assent, which, by the common law, must attend every valid instrument; the latter is the risk of frustration by design or accident, to which all human schemes are liable, and is not, in its nature, a fit subject for many special preventives; but is diminished by whatever tends to secure the adduction of the will before a proper tribunal, and the just decision there of the conflict between its supporter and its opponents. As conformity to statutory requisites is exacted in the execution of a will, to a degree which occasionally sacrifices the-earnest desires of a testator, and the plainest merit of his legatees to the preservation of valuable general rules, so where the execution has been clearly established, strictness should be exercised in examining evidence which may be adduced to rebut the inference of validity that arises from the execution. This inference is the presumption which the common law raises from every solemn act, confirmed in the case of a will by the evidence which is given by the subscribing witnesses whom the statutes require. When the execution has been marked by circumstances of fair dealing, and the subscribing witnesses have been above suspicion, fully aware of their duty, and competent to perform it, an imputation of incapacity in the testator should be sustained by strong testimony of facts, which shew a defect of mind existing m a form that the subscribing witnesses may not have detected; and an allegation of undue influence should be proved, so that the judges of fact, having proper conceptions of what undue influence is, may perceive by whom and in what way it has been exerted. On such subjects, witnesses are often multiplied to a vexatious number, and by them opinions are vaguely expressed, for which reasons ridiculously insufficient are sometimes given; but however difficult a mass of testimony and a protracted trial may make the discovery and separation of the really important matters that are in evidence, it is only by carefully separating and weighing these, that judicial truth can be conscientiously attained.

*191The right to make a will, is the right to make it according to the testator’s pleasure — -judiciously or capriciously — justly or unjustly — at absolute discretion, subject only to the restraints upon the power of disposition which the law has imposed. If the will is the expression of the testator’s wishes lawfully made, the opinions of other persons, however they may condemn its motives or disapprove its scheme, cannot, in any way, rightfully controul his power to do with his own as he pleases, without impairing one of the incidents which give to every man’s property its value. The claims of wife and children, like those of friends and dependents, are, by the law, left to the protection of natural feelings only; any or all of them may be disinherited by will, save only the wife’s dower, and certain shares which, by statute, are guarded against excessive preference for a mistress or illegitimate progeny. When a deserving and-affectionate child has been left destitute, and wealth has been heaped upon another, that, by unworthy means, gained the favour of a wrongheaded parent, the consolation of those who administer the law is, that a right is preserved which is valuable, however liable it may be to occasional abuse, and that under it, rewards may, in other cases, be bestowed according to merit. What ,is meritorious in the eyes of one man, is hateful to another — each, in giving his own, must be allowed to judge for himself.

In the question of admitting a paper to probate as a will, the provisions made by the paper are unimportant, if it appears to be a will — that is, a testamentary paper properly executed by a person of sufficient capacity, exercising volition. If the paper has these requisites, no matter how it may disappoint just expectations, how unequal it may be, how it may depart from previous intimations of purpose, it is the testator’s will, and the law allows it to prevail. .Great mistakes would probably be committed by any one, who should undertake to decide from previous acquaintance with the aged father of a large family, how he would desire his property to be divided after his death. The modes of thinking in different men as to the relative claims of widow, sons, daughters and grandchildren, and as to the relative values of various kinds of property, are so opposite; - the circumstances of children are often so diverse as to family, connexions, property, habits and success, — that apart from differences in character, manners and conduct in the several claimants, and from feelings likely to be concealed in the bosom of the father, allowance would have to be made for many considerations besides equal affection for all, and the special ad vance-ments which had. been made to each. On the subject of their wills, most men are studiously secret, and those who speak much, seldom speak candidly and consistently. A *192declaration of one’s wishes and intentions, repeated again anq agajn; if not written and executed as the law requires, has no force as a will. With like reason, no number nor solemnity of declarations can prevail against the written will properly executed. When the will has been proved, opposing declarations show only that the true intention was not expressed in them, or that it was changed.

If an act has been extorted by force or obtained by fraud, or induced by artful misrepresentations: — or if exhausted patience has yielded to great importunity for the sake of peace, or weakness has been cajoled by excessive and artful flattery, or fear has sought security in concessions to threats or to malevolent indications of the power to mischief: — or if over a feeble mind which, if left to itself, might be competent for ordinary affairs, a general dominion has been established, so controlling as to prevent its free agency, and the act has been subject to this influence; in none of these cases is a paper purporting to be a will valid, nor is any other act valid, for in none of them does the act proceed from the volition of the agent. Some or all of these cases make up what is usually comprehended under the term *undue*influence, so familiarly in use with us. It is not influence merely, but *undue*influence, that is always alleged — something, excessive and unlawful. It is not the influence of friendship or affection that can be complained of; nor the influence of argument or entreaty, nor the impression made by kindness or prudence, nor even the effect wrought by servile compliance or mean endurance of wrong. It must be something which destroys free agency. Motives of almost every conceivable kind may be offered, and if the mind of the agent, free to reject or adopt the motives, yields its assent, the act is the act of the agent.

In examining questions of undue influence concerning a will, as in questions of capacity, the contents of the paper and previ-. ous indications of purpose made by the supposed testator, may, as evidence, be brought into the investigation; but they can come in only as evidence pertinent to the inquiry, — Is this his will? and should not be suffered to minister to any prejudice opposed to the license of testamentary disposition which the law allows. It is no condition of this license, that the provisions of a will should be such as to please a jury. If the paper was properly executed, and the testator was of competent sanity, and no undue influence has been established, it is the testator’s will, and no tribunal is appointed on earth to inquire whether it ought to have been his will. For a jury to proceed to that inquiry, or (which is the same thing) to decide against a will because they do not like its provisions, is a fraud upon the law, a violation of *193their sworn duty, and an usurpation which would never be tolerated if it were not concealed.

In the case before us, two sons and two grand children, the children of a deceased daughter, all of the first marriage, seek to set aside the will, and urge that it is too favourable to the second wife and her children. The youngest of twelve children is considerably over twenty one years of age. The widow was, for forty years, the wedded partner of the testator’s fortunes. By the will, she receives for herself, (according to the best calculation that can be made from the evidence) not more than one-third of what she would take under the statute of distributions, if the will were set aside. Her two youngest sons, the executors, by the will, take, perhaps, a little more than twice as much as they would get if it were set aside. She and they, together, take nearly the same amount under the will, as they would get under the statute. The two grand children would gain by the setting aside of the will — the widow would gain — the executors would lose; — whether any change would be made as to the remaining nine children, (of whom, two of the first marriage, and four of the second, are made residuary legatees in equal shares, and three, to wit — two of the first marriage and one of the second, are declared to have been fully advanced) would depend upon the advancements which might be established against the three sons, James K., Samuel and William, who are declared to have been fully advanced, when they came into hotchpot. As to James K. whose claims have been most dwelt upon, if the deed for his land had been made by the sheriff to his father, and then by his father to him, instead of being made by the sheriff to him after the payment of the money by his father, the land would clearly have been an advancement, and would probably have, of itself, exceeded an equal share under the statute; unless it should be made to appear that this benefit, conferred in 1821, was in payment of services that were continued until 1827, notwithstanding it was spoken of as a gift by the father. As to Samuel, it is known that, besides the expenditures upon his education, he received a plantation and a negro, of value not shown; and in conversations which testator held about a negro for James K. and about the one thousand dollars given in lieu thereof, he seems to have considered a plantation and a negro as the measure of the bounty which he intended for each of his sons. William also received a plantation and one negro, with cash and other articles, amounting, in the whole, to about four thousand dollars; and that sum is acknowledged, on both sides, to exceed one full share. There cannot, in this state of the evidence, be any fair inference that the testator had an inadequate comprehension of the sufficiency of the advancements made to these three sons to *194constitute the- equality which, from parol evidence, it has been assumed he desired to prevail. If, irr conscience, he might not have regarded the land as- an advancement to James K. it no where appears that- he did not so regard it, nor that- his doing so was so absurd as to be evidence of fatuity. If his conversations, abiding in the memory of witnesses, who formed low estimates of his understanding, must controul his solemn declaration of purpose, they are not moré explicit on any point than on this, that James K. and Samuel were to get no more. Whether in contemplating impartial divisions between -his children, he actually looked to the state of his property as éach one left the family, or to its final condition, is by no means plain; and which he should have done, admits of various opinions. The provision for his two orphan grand children is said to be small. Their mother was partially advanced; what he considered their claims upon him to be, or what expectations -of provision for them from other quarters he indulged, we know not-. He spoke of giving money to them, and money is- given to them by the will. If it is his will, it may be ungenerous; But there is- no power to amend it, and no right to set if aside for dissatisfaction with its provisions.- Only to show that they are not so extraordinary as to furnish evidence of incapacity or undue influence, have the provisions of the will been here noticed. If the verdict, has been a good natured effort to benefit the grand children, under a belief that only small deductions from the other members of the family would be thus required, the serious litigation’ and considerable changes’ as' to the shares of the widow and executors which must follow, whatever may be the result as to the other nine children, show that the effort was kindness to some at the great cost of others. But courts are not organized to dispense favours. If there was a case where the setting aside of a will would have only the effect of making up a share for a child whom the testator had with shameful injustice cut off, by exacting equal contributions from others who were all equally bound in conscience to contribute — to set aside, for this purpose, and against the consent of any of the favoured children, what was proved to be the testator’s will, would be unlawful and unjust, inconsistent with the rights of parlies, and the duty of jurors. With how much less propriety could a departure from the law to accomplish a purpose of fanciful justice be indulged in the case before us? Sufficient capacity of the testator, at the date of the will, is, if not admitted by every witness, shown by the testimony to have been, in effect and conduct acknowledged by every one, who speaks of transactions and conversations that occurred about that time or soon afterwards. The codicil, made when the capacity was more feeble, contains a mere statement of facts, not- one of which *195is denied, and is important only as between the residuary legatees. The strongest evidence tending to show incapacity, ^ is found in the petulance, garrulity, complaints and weeping, that were probably increased by want of employment in old age, but seem to have been observed at least nine years before the will was made; and the most striking occasion when these were noticed afterwards, was when a large advancement was made to a daughter of the first marriage. The direct evidence as to the influence of the wife, exhibits only instances not more numerous, nor stronger than by careful scrutiny might be discovered in every family, where a prudent wife enjoys the deserved confidence of her husband. As to the executors, the exposure of family affairs which (as is usual in such cases) has here taken place, shows conduct on their part, which, unexplained, is discreditable; but which was calculated to avert, rather than attract favour to them, unless we imagine a case of harsh tyrauuy exercised over a father, afraid even to complain, which is wholly inconsistent with the general purport of the testimony. Some jealousies and bickerings probably existed in the family; watchfulness and anxiety about the property, which, by some, would be considered indedcate, appear to have been indicated at various times; but there seems to be no reason for supposing that any member of the family, in relation to the will, conceived any fraudulent purpose or practiced any unfair conduct. The testator went alone to the office of a lawyer of undoubted probity; there his will was drawn and executed, and there again his codicil; the subscribing witnesses were all of the highest respectability, and the testator often spoke of the will, and adverted especially to the clause concerning the three sons, which is now most complained of. To set aside what he has thus solemnly done and repeatedly recognized, upon the ground of undue influence, would seem to be deciding by some other rule than the law and the evidence which hav *. been given in the case.

The motion is, therefoi e, granted, and a new trial is ordered.

Evans, Frost and Withers, JJ. concurred.

*Motion granted.*