#### Mary Tillman et al. *v.*Benjamin Hatcher, Ex’or. of Lucy Hatcher.

The appellants, from a decree of the ordinary, establishing a will and admitting it to probate, are entitled to open the case and to reply in evidence and argument, on the trial of the issues made up, on the appeal, in the Court of Common Pleas. (S. P. Southerlin et al. v. M’Kinney et al., ante. p. 35.)

The questions of competency to make a will and of undue influence in procuring a will to be made, where there is no exception to the instructions of the judge, or other legal objection, are questions of fact for the jury, and their verdict will not be disturbed.

The subsequent discovery of written documents, *important to the issue,*and either unknown before or entirely out of the reach of the party offering them, has been, *it seems, sometimes,*though *rarely,*held a sufficient ground for a *new trial;*but *never*where the party might by due diligence have procured them before the trial.

*272On the trial of an issue in the Circuit Court, made up on an appeal from the Ordinary, involving the competency of the testatrix to make a will, and the question of undue influence in procuring the will to be made, many witnesses were examined, and the testimony was conflicting. — The jury found a verdict for the appellants, disaffirming the will. The executor, the appellee, moved this court for a new trial, among other grounds, upon the *discovery*since the trial of the case, of an older will of the testatrix, than the one *in*question, among *his own*papers. Held insufficient and no ground for a new trial.

Where a witness swears without any knowledge or consciousness of interest in the cause, and without any objection on that account at the trial, the discovery of a document, or other evidence, *afterwards,*which goes to show that the witness was in *fact*interested, does not furnish in itself any ground for a new trial.

*Before RICHARDSON, J., at Edgefield, Spring Term,*1839.

Tins case came up on an appeal from the ordinary, admitting to probate a certain instrument, as the last will and testament of one Lucy Hatcher. The report of his honor the presiding judge, is as follows:

“ Lucy Hatcher, aged 93 years, made her last will, in February, 1836. The will was proved in solemn form of law, before O. Towles, the Ordinary of Edgefield District. The Ordinary affirmed the will, which bequeaths the entire property to Benjamin Hatcher, the youngest son of the testator. Whereupon the distributees at law (her children and grand children) appealed from the Ordinary’s decision, upon the following grounds :

1. That Lucy Hatcher was of unsound mind and memory; and could not, therefore, make any lawful and disposing will.

2. That she was, in fact, imposed upon, and influenced by the exclusive legatee (Benjamin Hatcher) to make such a will, which was no moré than a void instrument.

The appellants and appellees, both, claimed the right of replying in evidence and argument. The issue made up, presupposes that the appellants had paid to the appellees, five dollars, and alleges that, if they proved the will to *be*void, then five dollars were to be repaid to the appellants ; and refers the issue to the Jury.

*273I ruled, that both by such pleadings, and the decisions of this Court, the reply belonged to the appellants.

Upon the question of competency of mind in the' testatrix, to make her last will, and as to the influence of the sole legatee, Benj. Hatcher, in bringing about so sweeping a bequest in his favor, much, various, and opposite evidence w;as adduced. The witnesses were fully examined; and it may be seen by the evidence in my notes, that scarcely a witness has not expressed, or plainly implied, his opinion upon the mental competency or incompetency of the testatrix. No objection was urged to- such free expression of opinion, until the appellees introduced the subscribing witnesses to the will. At this stage, the appellants counsel objected to the legal right of such witnesses offering their opinion, that her mind was sound at the time of executing the will.

The Court ruled, that the subscribing witnesses, being persons expresssly called upon to bear witness to the act, it was their right and duty, to form opinions of the mental capacity of the testatrix at the time; that in this respect, they being selected by her, stood within the reason of professional artists; and as guardians of the true state of her mind. Their opinions must, therefore, be heard, and pass for what they were worth in the judgment of the jury.

The three subscribing witnesses then gave their opinions, that the testator was of sound mind, free to act, &c., though Mr. Goode was not as positive in his opinion, as Lindsay and Napper, the other two witnesses, as regards her mental competency.

Several other witnesses were then examined, and in their narration of the manners, behaviour and expressions of Lucy Hatcher, they, like the witnesses of the appellants, mingled freely, their own inferences, without any objection being made. But upon the close of the examination of-■, the appellee’s counsel, asked “ if the witness knew of any foolish acts of the testatrixTo this the opposite counsel objected, as it required the opinion of the witness upon her conduct generally, instead of enquiring for facts only. The appellee’s counsel insisted it was not asking for opinions merely ; and after some conversation, in which it was clear the princi*274pie of law was conceded, that opinions did not constitute competent evidence, no decision of the court was asked for, or implied. I suggested that the purpose might be answered, by asking the witness what foolish acts he had ever known done by Lucy Hatcher, and if any, to relate the acts. And I observed that all general inquiries, whether her conduct was consistent or inconsistent, her conversations connected or disconnected, rational or irrational, were without the conceded principle, although, perhaps, every witness had either expressed or implied his opinion while relating the facts. After this all general inquiries for mere opinions, as to the conversations or acts of Lucy Hatcher, whether connected or not, rational or irrational, in the judgment of the witnesses, whenever objected to, were excluded by the court.

At the conclusion of the evidence and argument, it was evident that the decision of the case depended upon two questions of fact: First, whether Lucy Hatcher had still remaining sufficient discretion to make a last will and testament. If she had, then, secondly, whether she had in fact been imposed upon, in her old age and decayed state of mind, so as to deprive her of perfect free agency and influence her to make such a last will as the one exhibited. It may be remarked that, until the year 1834 there was no doubt of Lucy Hatcher’s possessing a sound mind. In the fall of that year she had severe illness; and it was afterwards that the witnesses formed different opinions. For instance, Mr. Roberts thought Lucy Hatcher possessed of understanding of great strength and reason, and that after many conversations with her, subsequent to illness in 1834; while Mr. Landrum thought her verging on idiocy after that time. The two classes of witnesses inclined respectively to these opposite opinions, but with much less confidence than Roberts or Landrum. But it was plain that the witnesses for the appellants drew their unfavorable opinions from Lucy Hatcher’s very inactive observations of ordinary occurrences; and her very dull memory of them, (as for example the names of persons and faces,) while on the other hand, the opposite witnesses evidently drew their favorable impressions from her capacity to reason right, and her discreet conduct, notwithstanding her dull observation and *275memory. Both sets appeared to allow, that when possessed of the facts, she conversed with propriety and “ like other people.” No express evidence was offered to discredit a single witness.

Upon the first question I charged the jury very fully, and instructed them, that to make a last will the law required the testator to possess, as is the usual caption of such instruments, “a sound and disposing mind, memory and discretion.” That these terms mean a sound or faithful perception of facts, through the agency of the senses. The law did not require a quick or vivid perception, but such as was true; not unsound or faithless. The impression left on the mind should be suitable and just to the thing seen, heard, smelt, tasted or felt. This was sound perception, or in the language of last wills, “ sound mind.” Second, the memory required must be sound also; it must retain the perceptions received through the senses as they were, not pervert or distort them. Such memory and perception were attributed to every man, and presupposed the reasonable discretion or judgment necessary to constitute a disposing mind, and the right to bequeath property by last will followed, unless the want of discretion appeared, from extrinsic or intrinsic evidence. Had then, Lucy Hatcher, in February, 1836, in her decayed state and at the advanced age of ninety-three years, such perception, memory and discernment ? This was the first question for the jury to decide.

The whole argument appealed to the consciousness, observation and reflection of every man, which must constitute his judgment upon the particular subject and case. But the court would not withhold its assistance or opinion. The judgment of the jury must be absolutely independent; but their minds could not be made too reflective or vigilant, upon so unusual a subject and case. I thought myself that the faculty of perception became more and more inactive, as the senses became decayed or dulled by lapse of years. That the strength of the memory depended greatly upon the vividness of perception, and of course generally decayed in the same ratio. Both the sight and hearing of Lucy Hatcher, were proved to be decayed; and her perception and memory, so far as they depended upon those two senses, appeared to be much weak*276ened. But I did not perceive that they were clearly unsound.— Although inactive, dull and heavy, they did not appear to have become false to their proper objects. I saw no traces of hallucination, or the confounding imaginations or reflections with sensations or the perception of facts. No extreme inactivity, or habitual wanderings of the mind, appeared to have usurped the proper place of her understanding, or judgment of facts, truths or realities. It was allowed that her faculties were originally very good; and I thought, from the evidence, her reasoning powers very sound to the last; and her will firm and rational. These were tests of a sound and disposing mind and memory, as before defined, and I saw nothing in her behaviour to disfranchise her, if left entirely free to act for herself. But the jury were to judge for themselves, from her whole conduct, conversations and habits. Of these, we had very properly heard very full evidence; inasmuch as, under ordinary circumstances, they were the undisguised acting out of a man’s will, and therefore, generally well indicate the character, degree, and true state of his whole mind. But, although the court deemed the testatrix competent, that opinion was drawn chiefly from her reasoning powers, as detailed by the witnesses and the apparent firmness of her will, which I thought indicated a mind sufficiently sound for the purpose of bequeathing property. Yet there were grounds for the two opinions, upon the intellectual competency of this aged woman to make any last will and testament. My own opinion was influenced, perhaps, too, by the habitual consideration that where a testator was perfectly free to act for himself, it required no more than a very slow and inactive mind to make a last will. Because there is no competition, no collision of interests, or opposite party to overawe or lead it astray. Where the mind was not unsound, the law would support even its seeming caprice in a last will — a bequest was often a caprice. But we should be slow to underrate the mind of another on that account. The suspicion arose, often, from a mere difference in sentiment, and sometimes from our own weakness. Men, too, would fancy they saw light, or darkness, in another’s mind; when, in fact, such different opinions were apt to arise from what was before assumed to be *277desirable, suitable', or just, in the result of a given case. In the one before us, such a class of respectable witnesses on each side, intimated the necessity of much consideration in forming óur -final decision upon the legal competency of Mrs. Hatcher’s mind, independently of any such prepossessions. In the course of the examination I had drawn conclusions very opposite to those indicated by some of the witnesses, from their own narrative of Lucy Hatch-er’s conduct and conversations ; and, finally, inclined much more to the opinion of Mr. Roberts than that of Mr. Landrum. But the jury might differ from mine. They too were to form their own independent opinion and to follow it.

Upon the second question, the court instructed the jury, that (assuming Lucy Hatcher of competent “mind, memory and discretion,” to make a last will,) they were to decide whether she had been imposed upon and swayed to make the will in question, without her own deliberate wish and inclination, so to bequeath her entire property to one son exclusively. That this was an inquiry in the nature of fraud, and belonged clearly to the jury. Benjamin Hatcher had himself procured the will to be drawn — and her great age, weakness and partiality for her youngest son, rendered it very possible that the testatrix had been unfairly influenced. On the other hand, her partiality to him appeared of long standing, and might be deemed consistent, and the opinion formed of her understanding would have its influence; but the court would intimate no opinion of its own; - upon so plain a question of fact, the jury required no assistance. Was she or not a perfectly free agent at the time of executing the supposed last will? was the point.”

The jury found a verdict setting aside the will.

The defendant, Benj. Hatcher, the executor of the will in question, gave notice of his intention to move, and now moved this court for a new trial:

1. Because the right of opening and replying in evidence and argument was refused to the executor, whereas in all such cases, the trial being *de novo,*this right belongs to the party propounding the will: and especially where, as in this case, the feigned issue presents the question of will or no will nakedly, without reference to *278the proceedings before the ordinary, or to the grounds upon which his decree was impugned.

2. Because the witnesses in behalf of the executor were not permitted to express their opinion that the testatrix was of competent understanding; not even to say that her discourse was connected, or that her conversation and acts were rational, or that she understood the value of property, or any thing including an opinion — and this, although of the witnesses against the will, one had hurried out an opinion that her conversation was flighty and disconnected, supported by no instance; and another (an influential clergyman,) had commenced by saying, that she was in her dotage, and for support of his opinion, could specify no facts or circumstances, except that at her daughter’s funeral, she *looked*stupid, and was disinclined to conversation.

3. Because the verdict can be ascribed only to the prejudices of the jury, striving to do a fanciful justice by dividing the testatrix’s property, rather than letting all go to the sole legatee, and was not warranted by any sufficient proof either of defect of understanding, or want of free agency on the part of testatrix.

4. Because the verdict depends solely on the testimony of witnesses; who, through parents or through children, have indirect interest in setting aside the will and strong feelings in the question; this testimony is in itself, insufficient, and is opposed by testimony of greater weight in favor of the will; and in such cases, the Court of Appeals, exercising the powers of an appellate ecclesiastical tribunal, is bound to scrutinize the facts more closely than it ordinarily does in cases of fact submitted to a jury.

On the 5th of April, 1839, the *defendant served Mr.*Carroll with the following notice:

“ The defendant will rely as an additional ground, for new trial on the following ground:

“ That, since the trial, he has discovered new and important testimony, namely, a will of Lucy Hatcher, executed June 14, 1833, which has the effect of rendering Jonathan Tillman, Tabitha Tillman, and Frank Bettis, incompetent witnesses, and of con*279tradicting the first named of said witnesses in an important particular of Ms testimony.”

And in support of this ground, produced an affidavit, of which the following is a copy:

*“*South-Caroeina, )

*Edgefield District.*)

“ Benjamin Hatcher, senior, being duly sworn, deposes, that since the trial of the issue of Ben. Bettis and others, against himself, he has discovered a former will of his mother, Lucy Hatcher, executed 14th June, 1833, which he is advised, contains important evidence affecting said issue — that having been repeatedly and urgently so instructed, by his counsel, he made repeated and diligent searches for said former will before the trial of said issue, as well among his own papers, as those of his mother, but without success — that at length, some days after the trial, he found said will, inside of an old deed, in a bag containing old papers of little value ; that he is confident that he did not place said will where it was found, and thinks it probable it was placed there about four years ago, while he was laboring under a spell of illness, without his attention being called to the circumstance; and certainly he has now no remembrance concerning the placing of the paper there, and had little reason to expect it where it was casually found. Benjamin Hatcher.

*Sworn to before me, 2d May,*1839.

Geo. Pope, C. C. P.”

Curia, per Richardson, J.

1. Whether the appellants or ap-pellee had a right to begin and end the evidence and argument upon the appeal from the Ordinary, has been before decided in the case of Southerlin v. M'Kinney, ante. p. 35. In that case, it was decided, upon very full consideration, that according to practice in this State, the appellant has the right; and the court feels itself bound to follow that rule. The decision established the practice. 2d. Whether the testatrix, Lucy Hatcher, was of sound and disposing mind, memory and" discretion at the time she executed the last will submitted to the Ordinary; and whether the testatrix was not un*280duly influenced to make such a will, so as to deprive her of free agency, and render it a void instrument. I have to observe, that the presiding Judge, on the circuit, was satisfied, by the evidence, of the mental competency of Lucy Hatcher, to make such last will — that her mind was sound, and her will firm, and that it would have taken great address and influence to have deprived her of free agency, or swayed her at all, in a matter of importance, although her perception and memory; were much decayed. That with this opinion of Lucy Hatcljer’s mind and firmness of purpose, he could not perceive in the evidence, sufficient proof of such undue and improper influence as to disaffirm the decree of the Ordinary, admitting the will to probate. But both of these questions were submitted to the proper tribunal for the decision of facts, with full instructions upon the legal meaning of a sound mind, memory and discretion in testators; and the jury have, by their verdict, annulled the will. It was within their peculiar province and jurisdiction so to do; and this court, under all the circumstances and character of the particular case, does not perceive sufficient reason to interfere with the verdict, by ordering a new trial. Upon this head, it may be observed, that the discovery of the former will and the codicil, will still leave Lucy Hatcher by no means altogether disfranchised of her right to make a will, and that in her own way, with her prevailing disposition, which seems to have been uniform. It is highly satisfactory, that this is to be the result, in the old lady’s interesting case. The only other ground relied upon for a new trial arises from the late discovery of a former will of Lucy Hatcher, which, if known at the trial, would have rendered three of the witnesses interested, and therefore incompetent to give evidence, and would have contradicted one of them in part. The discovery of the former will is set forth in the affidavit of the appellant, Benjamin Hatcher. — (See ante. p. 279.)

The subsequent discovery of written documents, important to the issue, and either unknown before, or entirely out of the reach of the party offering them, has been sometimes held a sufficient ground for a second trial; but “rarely,” says Judge Waties in the case of Drayton v. Thomson, (1 Bay, 261,) and “never,” he *281adds, *“*where the party might, by due diligence, have procured it before.” Does the' discovery of Lucy Hatcher’s will, of June, 1833, come up to these prerequisites, or, even, only one of them? 1st. That will could have furnished no evidence upon the issue— whether Lucy Hatcher was of sound and disposing mind in February, 1836; or whether she had been unduly swayed in executing the supposed will of that year. Wherein was it important? But again, the will of June, 1833, was in the possession of Benjamin Hatcher, and it is plain, that he had knowledge of such a will. He had been advised to search for it; but did not search so diligently as to find it, until the trial was over: when he searched again, and found it among his own papers. Without discrediting Mr. Hatcher’s moral truth in this matter, we must not encourage such negligence, by ordering a new trial. He must abide the consequence of such extreme inactivity in his own concerns; and the neglect of the duty due to others. When we consider the hot contest between him and the distributees of Lucy Hatcher, such negligence was scarcely less than culpable. Let us suppose the will of 1833 had been before the court, at the trial of the appeal from the ordinary; it could have done no more than prevent the evidence of Jonathan and Tabitha Tillman, and Frank Bettis, by showing they were interested in that former will.' But such interest being unknown to themselves, could not lessen the credit due to their past evidence. The objection offered is merely technical and prospective. It does not go back to the issue already tried and decided. It may have contradicted, in part, Frank Bettis, and therefore weakened his evidence ; but that would not destroy it. It should be here, too, kept in mind, that those witnesses were introduced to disprove the sound mind and understanding of Lucy Hatcher, which was not the ground really relied upon by the appellees. The true question before the jury was, whether this ancient testatrix had not been coaxed, cajoled, or in some way deceived, and tricked, in carrying her known partiality for her youngest son, into the extreme of bequeathing to him her entire property. And I have no doubt, that Mr. Hatcher’s permitting and encouraging such a sweeping bequest to himself, when pro*282curing the will, was left by his aged mother to his hands, and the dislike of monopolies had weight with the jury. But the moral is good, and where there is no plain legal objection we must not disturb such a verdict. I have only to add, upon this last ground, that objections to the competency of witnesses, to avail, must be made during the trial, at farthest; and that the subsequent discovery, that a witness was incompetent, is not, in itself, sufficient ground for a new trial. (See Turner v. Pearte, 1 Term Rep. 717, where this question is well considered by Buller.) Such objections depend upon the particular case, as where the opposite party was deceived ; or the evidence was of great weight, and the like; but is not, of itself, a substantive ground for a new trial. Upon the whole, then, the court is constrained to follow the common rule, that where the case consists of facts which have been fairly submitted to the jury, with full instructions from the court, their verdict concludes the case.

*Wardlaw*& *Wardlaw,*for the motion.

*J. P. Carroll,*contra.

The motion for a new trial is therefore dismissed unanimously,

Earle, Evans and Butler, Justices, concurred.