Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-01-24

j. R. Sellsrs, in error, VS.. VIM. Sellsrs,
Executor, etc. Er.--.r ---. IS
This is an issue of devisayit, vel non,
tried in the Circuit Court of DeKalb
county; verdict and judgment were in
fsvor of the will, and the defendant be-
low appealed in error to this court. 20
Upon the trial below the execution of
the will was proved by one of the attest
ing witnesses, who proved also, the attest
alton of Durham, the other witness, who
was sworn to be dead. -..i
The defendant below then introduced
several witnesses, by whomhe proposed to
prove declarations of the deceased attest
ing witness, made after his attestation of
the will, to the effect that the testator, at
the time of the execution of the win, was
of unsound mind. This evidence was
objected to by the plaintiff, and was ex-
cluded by the court.
In this there was no error. Durham,
the deceased witness, by putting his name
to the will of Mathew Sellsrs, the tesla
tor, in Ii gal effect, asserted the mental
capacity of the testator, and the due exc
cution of the will, and the swearing
against his own act and declarations, if
he had been alive and introduced as
witness, would have been an imputation
upon his credibility. Coldwell, %.
This, however, he might have done.
But his simple declarations or statements,
in regard to the capacity of testator,
made without the sanction of an oath,
and in disparagement of the evidence
furnished by his attestation of the will,
are wholly inadmissible. l Green, Sec
ton 1875.
The defendant also Offered to prove by
Barnes that testator's wife had said in a
controversy with him about selling some
bacon to the witness, that he, testator,
was an cold fool" and upon another oc-
cssion, when Smith had gone to see ties.
tator TO buy yoke of oxen, that the old
lady said that the old man was derauged.
This evidence was offered as an admis-
sion of a party having an interest in,
though not party to the suit, and being
objected to, was excluded.
1t is certainly true that the declarations
and admissions of party to a suit, or of
one having an interest in its result, in re-
gard to the subject matter of the suit, are
admissible against him, yet the circum-
stances under which these statements
were made, show that they were the
petulant reproaches of an irritable and i'm
patient old woman, rather than an ex-
preston of an opinion as to the condition
of the testator's mind. We are satisfied
these statements ought not to have had,
and if admitted would not have had any
influence upon the verdict of the jury.
Defendant, after the verdict was rem
dered against him, in support of his APP
p.ication for new trial, read his own af.
f1dsVit, and those of several other per-
sons, showing that he had discovered,
since the trial, that he could make addi-
tional proof to establish testator's inca
pacity to make will
There is much proof in this character
already in the record, and this court has
repeatedly held that it will not grant
new trial upon the ground of newly dis
covered evidence, where it is merely Gu
mulative.
There is no error in the charge, and
the verdict is sustained by sufficient evil
dence, aud we affirm the judgment of
the court below. DRADERIoK, Judge.
A true copy:
F. C. DUNNINGToN, Clerk.