#### Edward J. Black and Wife vs. Isaac Ellis and Wife.

Tried before his Honor Judge Earle, Beaufort, Spring Term, 1836.

This was an issue *denisavit vet non,*on an appeal from the Ordinary of Beaufort District,-who had admitted to probate, a paper pur. porting to be the will of William T. Kirkland. It was dated 17th August, 1815 — and was attested by three witnesses,' Elizabeth B„ Griffith, Tho. J. Griffith and William Deloach, The two last were dead, and their hand writing was proved. The will had been admit, ted to probate, in common form, cm the 18th October, 1819, being then proved by the oath of William’Deloach. This proceeding was instituted before the Ordinary, to have the will proved in solemn form, soon after the intermarriage of Black with the daughter of the testator, who has lately come of age.

The will was impeached mainly on the ground of incapacity, and of undue influence. Mrs. Elizabeth B, Conyers, formerly Griffith, one of the subscribing witnesses, was examined for the plaintiffs in appeal, the other party declining' to offer her testimony. She deposed that Kirkland, the testator, at the time of executing the supposed will, lay in a state of utter stupidity and insensibility, from excessive drinking; in a state, as she expressed it, “ of seeming senselessness;” that he was held up to sign the paper, which was produced by John Deloach ; and the witnesses were requested also by him to sign their names ; that she did not know it was a will; that it was not published as such ; that it was not read over, nor its contents rehearsed ; that she did not believe the testator was conscious of what he was doing, or knew the nature or contents of the instrument, for he lay on the bed wholly unconscious of what was passing around him; without discretion, memory, or understanding, and could not have comprehended it, if road to him. He was.incapable of making a will. John Deloach invited her husband and herself to go to Kirkland’s, saying he wished to see them, and was not expected to live ; that he had control of the testator and his business. The will was written before they went, and the witnesses were ignorant what it was they signed. They stayed from 11 o’clock one day, until the afternoon of the next, during all which time testator was in that condition. He had a fit the day before they went.

Edward Griffith, her son, deposed in substance, as did the last witness, his mother. He accompanied his father and mother to Kirkland’s, on the occasion. They were pressingly invited by John Deloach, who seemed very active throughout, on the occasion. Testator lay in a state of stupor, produced by excessive drinking ; spoke to uo one, except when raised up to take stimulants ; had not mind' enough to perform such an act, incapable of knowing what he was about, nor could fie have comprehended its contents, if read to him. He signed at the instance of John Deloach, who seemed to direct and control the business. This witness was then *thirteen*years old, and cant say that he has a perfect recollection of all the circumstances.

*74Several other witnesses were examined on the same side, relatives of the deceased, who testified to his general and gross intemperance-, in fact continual intoxication, during' the years 1815 and 1816, for he lived more than' a year after the execution of the will. They were Mrs. Elizabeth Lislmess, Mrs. Lydia Crafton, sisters of the testator, Elizabeth Hynes, and Elizabeth Lowry, a cousin and sister in-law. They all deposed, that about the time of the execution of the will, and afterwards, he was never free from the influence of liquor ; that in their opinion, his mind, memory and understanding were so much impaired, that he was incapable of doing any business of importance, or of making a will. These witnesses testified further as to the influence of John Deloach; apd expressions and declarations of the testator, before and after the date of the supposed will. They also testified that John Deloach had said he could make him do as he pleased, and intended to do so ; that the testator said he was much tormented by the Deloaches, and his wife, who were continually insulting him about his first wife and Georgiana, (his daughter) and wanted him to make a will in their favor, and cut off his daughter. That he said he did not want the property he got by his wife-; as for the rest of his property, he intended to give it to his daughter ; and on being told by his brother, that John Deloach would induce him to make a different disposition, if he had not already done it, he called God to witness he had not; and if any such will were produced, it would he a forgery. That his wife, her father, and brother, gave him no peace, wishing him to make a will in their favor, and cut off his daughter-; and that John DeJoach had said he would be damned if he should not do it; and a few weeks before his death, being asked if he had made a will, he said no.

The will gave two negroes to the daughter, now Mrs. Black — and the residue of the property to his wife by a second marriage, now the wife of Ellis the defendant in appeal, daughter of William Deloach, and sister of John Deloach, who, with Richard Kirkland and Mrs. Kirkland, was appointed executor; but they did not prove the will nor' qualify ; nor was this done until the year 1819, not long before the marriage of the widow with Ellis. The negroes given to the daughter, were sold by the testator before his death, and much of his property was sold by the sheriff to pay debts. The appraisement in 1820 amounted to $484 only. Considerable property was afterwards recovered by Ellis and wife, from the brothers and brothers-in-law of the testator.

On the part of the defendants in appeal, testimony was offered to sustain the will, 1st. By proving the sanity and capacity of the testator. 2d. By impeaching the credit of Mrs. Conyers. 3d. By supporting the character of William Deloach, one of the other subscribing witnesses. ' Several documents were produced, shewing important business transactions of the deceased, both before and after the execution of the will, from 17th June, 1815, to 29th Feb. 1816. They consisted of an agreement for the sale of a valuable tract of land in June, bond for titles in Jufy, and a deed of conveyance in November, 1815, witnessed by Cannon, one of the witnesses *75Slow examined to impeach the will; receipts for the purchase money to upwards of 2000 dollars, all in 1815, before and after thé date of the will; receipts given to him by the distributees of his father’s estate, of which he was executor during the same period.

Several witnesses were examined, who testified, that during that period, and at all periods during his life, he was capable of making a will, and of doing any other business ; that although he drank to excess, it had never so far impaired his mind, as to disqualify him from managing his own affairs, which he continued to do; and that no doubts had ever been expressed or insinuated to the contrary, until the institution of this proceeding

It was prayed by one witness, that in 1833, in the State of Alabama, Mrs. Conyers said, in conversing on this subject, that she would have taken Kirkland to be in his senses, when he made the will. Two witnesses were called to impeach the credit of Mrs. C., on the ground of bad character, who deposed that they would not believe her on her oath. Three witnesses-sustained her character, and deposed that they would believe her.

The defendant in appeal also moved to call witnesses to the good character of William Deloach, *the*subscribing witness now dead, on whose oath the will was formerly admitted *to*probate. This was objected to by the adverse counsel. The evidence was admitted. Several witnesses deposed that he was a man of unexceptionable character ; for probity and truth, wholly without reproach.

It was urged by the counsel for the appellants, that the proof of execution was insufficient to establish the paper as.a will; that there was no proof of publication; that there was no proof either of instructions or reading over, one of which is indispensable; and therefore, that there was no sufficient proof of the *animus testandi.*I instructed the jury that publication was not necessary; that instructions or reading over were not indispensable to the due execution of a wilt, nor essential to its validity, if the jury were satisfied from other circumstances, that the testator knew what he was about, and was aware of the contents of the will. That the *animus testandi*was essential, and *whatever*proof would satisfy the jury that the testator intended to make his will, knew that he was making it, and how he was -making it, would be sufficient, without proof of actual instructions or reading over, and without proof of publication. That the absence of such proof of publication, or of instructions and reading over, in a case where great mental imbecility is established, or where *the sanity*is doubtful, would go far to invalidate the will, and establish a fraud; but the want of such pi oof was only a circumstance from which, with others, the jury was to form their conclusion as to the fairness of the proceeding.

I thought the case depended mainly on the credit of the witnesses, Mrs. Conyers and William Deloach. The other witness who was present, was manifestly too young and inexperienced to he able to form any opinion worthy of consideration on such important transactions; and after twenty.pne years, can hardly be expected to narrate with *76any certainty, circumstances which passed under his observation *at*thirteen years of age, in which he was not an actor, and which he was not interested in remembering. I hesitated concerning the competency of the evidence of William Deloach’s good character; but the authority of Stevenson vs. Walker, 4 Esp. N. P. Ca. 50, is directly in point; recognized too by Lord Ellenborouglj, in 1 Camp. Rep. 207, where he assigns the true ground for admitting such evidence.

I submitted the question of the comparative credibility of these witnesses to the jury, with express instructions, if they believed Mrs. Conyers, they should find against the will. The jury found in favor of the will. The several grounds presented in the notice of appeal, except such as are already noticed, arise out of the evidence, and need no further comment.

B. J. EARLE.

The plaintiffs appeal for a new trial, on the following grounds :—

1. Because the defendants were permitted to prove the general character of William Deloach, which was not put in issue by the plaintiffs.

2. Because his Honor failed to charge the jury, that the testimony of Mrs. Conyers might be sustained by circumstances, and the corroborating testimony of other witnesses.

3. Because under the circumstances of the case, if Mrs. Con-yers was discredited, it ought not to prejudice the plaintiffs.

4. Because his Honor erred in charging the jury, that the case turned on the weight they might attach to the evidence of Mrs. Con-yers, and the character of the other subscribing witnesses; and also,

5. In charging the jury, that the opinions of the other witnesses, called to impeach the will, could not, according to the rules of law, be entitled to weight.

6. Because the incapacity of the deceased, at the time he put his name to the supposed will, was clearly proved.

7. Because the general incapacity of the deceased, before and after the execution of the will, was clearly made out, and the defendants offered no evidence of capacity at the time of its execution.

8. Because there was no evidence of the *animus*testandi; or from which a testamentary intention could be inferred.

9. Because under the circumstances of the case, proof of instructions from the deceased, or of a reading over to him, was necessary to establish the supposed will.

10. Because there was no proof of any publication of the supposed will, either express or implied, and such evidence under the circumstances of the case, was indispensable to its validity.

11. Because there was no evidence to authorize *the*jury to infer, that the deceased might have been induced to execute the supposed will, by excusable or justifiable importunity, and not by fraud and undue influence, of which there was proof.

■ *12.*Because the verdict is in other respects, contrary to law and evidence.

A. PATTERSON, *Plaintiff’s Attorney.*

*77Mr. Justice O’Neall

delivered the opinion of the Court.

The various grounds of appeal seem to me to present only two ’distinct subjects for the judgment of this Court.

1st. The admissibility of evidence of the character of the witness, "William Deloach.

2d. The existence of the *animus testandi,*on the part of the de» ceased, at the time of the execution of the will.

Under these heads, as briefly as possible, I will endeavor to state the conclusions of the court upon the different points made in the argument, with such reasons for the same, as appear to be necessary to be assigned.

1st. I concur fully with the judge below, that evidence of the character of William Deloach was proper and admissible. In M’Elwee vs. Sutton, 2d Bailey, 128, the declaration and affidavit of a deceased witness to a bill of sale, that it did not bear its true date, were held to be competent to rebut the legal conclusion, from proof of his hand-writing, that the deed was a true and genuine paper, upon the presumptions — 1st. That if it had not been so, he would not have witnessed it. — 2d. That if alive, he would have given all the proof necessary to support it. When the hand-writing of a witness who is dead, is proved to establish a deed, if its effect may be destroyed by proving facts which shew that the ordinary and usual legal conclusion ought not to follow, surely it is equally competent to sustain and fortify that conclusion by shewing corroborating facts.

It could not be denied, under the authority of the case to which I have referred, that the declarations of William Deloach, that the will was improperly executed, or executed by the deceased when of unsound mind, would have been admissible to destroy the legal inference of due execution, from proof of his hand-writing. So, too, proof oí his bad character would have had the same effect, and would have been also admissible; when there was a conflict between the tes» timony which the law presumes him to give, and that actually given by a living witness, proof of his good character would seem to be admissible as a circumstance, in aid of, and in corroboration of the legal conclusion. In this point of view, it is unnecessary to consider whether the evidence which he did give before the Ordinary, on the probate of the will in common form, was, or was not properly admissible. It was merely to the facts which the law implies from the proof of hand-writing, and could have had no effect, either upon this question, or the result of the case.

2d. The capacity and will of a testator are both essential to the va*78lidity of a testament. But both, I might say, áre presumed in the first instance, from the fact of execution. For the law presumes every man capable of doing any act which he executes, until the contrary is shown. So every act done, is presumed to be voluntary, until' the contrary appears. These are general principles, applicable to every case, but more especially to such an one as this. The objections made on this part of the case, are of law and of fact; and in the first class, it is urged that there was no publication of the will. As to this, the answer is obvious, that no *formal act of*publication was necessary. When signed by the testator in the presence of the witnesses required by law, and witnessed by them actually, or constructively in his presence, it was a legal publication. The appellant has also supposed that general incapacity on the part of the testator was proved, and that it was incumbent on the appellee to shew the existence of capacity at the moment of execution. This involved both matters oí fact and law. To decide upon either, it was necessary to fix the degree of capacity which would enable a party to make a will. This was perhaps as well fixed by the judge below, when he said, that it required such a portion of understanding as would enable him to do a binding act, as it could have been in any other terms. He did not test the testator’s capacity to make a will by his ability to make a contract, as was supposed by the counsel. It may be, that a party whose contracts would be supported, could not make a will; but I should hesitate long in stating any such, a general legal rule. Generally, *the*rule applicable to both *is the*same; the party must have mind enough to understand the act he is about to do. The rule stated in Tomkins vs. Tomkins, 2d Bailey, 93, that *“*if a man possess mind sufficient to transact the common *business of life,”*he may make a will, is in substance the rule laid down by the judge below. The legal test of capacity being properly put to the jury, it then was necessary from the facts, that the jury should decide, whe'-ther he had that much capacity at the moment of execution; and a want of it at that time, the appellants were bound to shew. The proof did not establish such a general want of understanding, as made it incumbent on the appellees to shew that the will was executed at a moment ■when the deceased was not laboring under such incapacity. *At*most, the proof only makes out instances of longer or shorter incapacity, arising from drunkenness. This did not destroy the legal presumption of general capacity. The burthen of shewing the execution at a moment when the deceased was incapable of transacting the ordinary business of lile, rested, therefore, upon the appellants. The deceased being generally capable, it was not necessary that there_should have *79been any proof of instructions to write the will, or that after being written, it was read over to him. For, from the fact of execution, by a capable man, the law implies that he knew the act, in all its relations, which he did. If a party be incapable of reading a will, and have the. opportunity of doing so, as where it remains in his possession after execution, these facts generally would dispense with the proof of instructions or reading over. The rule in this respect only applies to a ease where a will is prepared for and executed by a man oi doubt, ful capacity in his last illness, and I might add *in extremis,*as was the case in Tomkins vs. Tomkins, 1st Bailey, 92. But where a man lives for a considerable time after the execution of the will, and is in the constant discharge of the ordinary business of life, it is wholly unnecessary to prove instructions, or a reading over, to give validity to the will. See the cases of Warley vs. Warley, and Hobby vs. Bobo.

Filed 3d May, 1836.

PattbRSON and De Treville, for Motion.

Colcock and Bailey, Contra.

. All the other points made under this head, relate to the facts. It is true some-of them question the correctness of the Judge’s charge in several respects, but it is only necessary generally to remark, that the errors complained of were mere matters of advice, as to the effect of the evidence, which the jury were at liberty to adopt or reject, as they might think proper; such constitute no grounds for a new trial. It is however due to the judge below to say, that we think his advice to the jury upon the facts, was generally correct.

The motion for a new trial is dismissed.

JOHN B. O’NEALL.

We concur,

HENRY W. DESAUSSURE,

A. P. BUTLER,

WM. HARPER,

RICHARD GANTT,

J. JOHNSTON,

JOSIAH J. EVANS.