
    John Heister against Michael Lynch.
    On a feigned issue to try the validity of a will, the court before.whom it is tried, but not the register, has the power to award a new trial.. The jurors are the constitutional judges of the credit of witnesses, and if the sanity of a testator is fairly left to them, the court will not interpose, where they have discovered no leaning. No very great share of reason is necessary to validate a will.
    An issue had been directed by the register for the probate of wills and granting letters of administration, for the county of Montgomery, on the prayer of the parties, to try the validity of a certain writing dated 12th October 1789, purporting to be the last will and testament of John Pawling déceased.
    
      It came on to be tried at the last assizes for Montgomery county, by a special jury, who gave a verdict establishing the will.
    A motion was now made for a new trial.
    It appeared on the trial, that there were three subscribing witnesses to the will, Israel Jacobs, esq. George Bowyer and William Bowyer, the last of whom died before the day of Nisi Prius.
    Mr. Jacobs was of unexceptionable character; he drew the will. He had doubts then respecting the sanity of the testator, who was at different times in a drowsy or lethargic *10Q1 state, and * appeared to want his recollection at those -* periods. When these occurred, he stopped and did not proceed, until he found him in a better state. He then proceeded to draw the will, finished it and subscribed it as a witness, and saw the other two witnesses subscribe it. Upon the whole, he affirmed at the trial, that he did not apprehend him to be of sane memory when he made his will.
    George Bowyer swore, that he was well acquainted with the testator, and that he believed him to be fully possessed of his understanding, when he executed his will.
    Several witnessess were examined at the trial, to prove, that on the days preceding and subsequent to the making of the will, and also on the very day of making thereof, the testator appeared not to possess his memory or recollection, and gave particular instances thereof. It was ascertained, that on the day he made his will he did not know the amount of his personal property. By a former will of the 12th June 1784, the testator had made an equal division of his property among his five children. By the will attempted to be proved, he gave the greater part of his estate to the children of Heister, the plaintiff. One Paul Custard swore, that shortly before the testator made his will, he heard him say, he would divide his estate equally amongst his children, notwithstanding the persuasions of his family. He died ten days after the execution of the will in question.
    On the other hand, it was proved by other witnesses, that the testator some time before his death, was very infirm; that during his drowsy fits, he was forgetful and flighty, but when roused up, he obtained his memory and recollection; that he made several calculations previous to the drawing of his will, extending to the minutiae of 'his property, and held several conversations with the witnesses, which shewed that, though he was weak in body, he retained a competent share of understanding; and that his idea of making an equal division of his property among his children, was that his several grandchildren should share the same equally {per capita and not éer stirpes) according-to his declarations sworn to by John Dull, which would be fully effected by establishing the will in question. And that the testator had repeatedly declared, that Lynch the defendant, having married his daughter without his consent, should not wed his pocket-book.
    The defendant grounded the present motion for a new trial, on evidence found out since the trial. They read the depositions of several witnesses, shewing that the aforesaid George Bowyer * was a man of bad character; that at one time ~ previous to the trial he had said lie could not tell *- whether the testator was in his senses or not, when he made his will, and had repeatedly made use of malicious and disrespectful expressions against the defendant.
    The plaintiff combated this testimony with other depositions, establishing the character of the said George Bowyer as good; containing frequent declarations of his to different witnesses at divers periods, that the testator possessed his understanding, when he executed his will; and also declarations of the aforesaid William Bowyer, the other subscribing witness, at divers other times, to the same effect.
    Messrs. Randolph and J. B. M’Kean for the defendant, contended, that the verdict was against the weight of the evidence, as given at the trial. George Bowyer’s declarations previous to the trial, of his being unable to tell whether the testator was in his senses or not, had disarmed the defendant from bringing witnesses to attack his character. He was misled and deceived thereby.
    It is in the discretion of the court to grant new trials, when verdicts are unjust, or even do not give general satisfaction. That power is now exercised with great latitude, and for the best reasons, i Burr. 391, 393. 3 Black. Com. 389 to 393.
    One cannot make a will, unless he has a sane and perfect memory to dispose of his property with understanding and reason. 6 Co. 23. An old man who is childish and forgetful cannot make a will. Swinb. pt. 2, sect. 5, p. 82, 83. (Ed. of 1743.) Where the testator is of weak judgment, easy to be persuaded, and the legacy great, it is a ground to set aside the will. Ib. pt. 7, § 4, p. 478. If the testator do erroneously express a false cause for a legacy, the disposition is void, by the civil law. Ib. pt. 7, § 5, p. 482.
    They likened this case to that of Staw v. Abbott, 2 Vez. 552. There a question arising as to-the forgery of a certain paper, relative to the estate of captain Girlington, Lord Chancellor Hardwicke sent it to a jury for trial. Judge Foster who tried the issue, certified that he was well satisfied with the verdict. But though Lord Hardwicke admitted that new evidence discovered since the trial, would not be sufficient in a court of common law to set aside the verdict, because of the dangers consequent thereon, yet where his conscience was not satisfied as to the grounds and truth of the evidence upon which the verdict was given, he directed another trial on payment of costs. ' This was said to -1 be the ordinary rule of equity, where a matter of inheritance is in question, or in the case of a “personal demand of considerable value. ’ ’ lb. 554.
    In the present instance it appears by the inventory that 3500I. is the object of contention, and if the court should sanctify the verdict, it- will, as personal property, be fully concluded thereby.
    Eor the plaintiff, it was insisted by Messrs. Ingersoll and Sergeant, that the weight of evidence was by no means against'.the verdict.
    The judges on the trial discovered no inclination either way, but left the sanity of the testator as a mere point of fact to the jury.
    It is highly dangerous for the court to permit the credit of evidence, to be impeached by subsequent evidence, which was in the party’s power before. For the parties are supposed to come prepared to support or impeach the character of the witnesses on either side, a Vez. 553. Said to be a settled rule, where the party by his own diligence could have procured such evidence. 5 Bac. Abr. 250. If a witness during a trial, give a wrong answer1 to a question through mistake or -misapprehension, he may correct himself at the time. 2 Bac. Abr. 296. But even courts of equity will not suffer a re-examination of a witness, or new testimony to be given after publication of the depositions, when it is seen where the cause pinches. The necessary consequence would be perjury. 1 Vern. 47. It is true, in 2 Black. Rep. 955, it is resolved that a receipt for the demand found out after a trial, the attorney swearing he did not know of it before, was a ground for a new trial. It was a very special case, and manifest injustice would be otherwise done. But there is no general rule, which will not admit of some exceptions.
    . In a late case it has been determined, that an objection to the competency of witnesses discovered after a trial, is not a sufficient ground of itself for granting a new trial, though it may have some weight with the court, where the party applying has merits. 1 Term Rep. 717. [Vid. Ib. 84, 85.]
    The case before the court cannot with propriety be compared to such cases as occur in a court of equity, where the chancellor to inform his conscience, sends an issue to be tried at law. There he will go on with the trial of issues, until his mind is fully satisfied, and after all (as Eord King did in the cause referred to in 2 Vez. 554) may give a decree, founded on a fact contrariant to all the verdicts. In the present suit the register is bound by the jury’s verdict, as to the *1121 validation of the will, * provided this court render judg- -* ment on it; though the controlling power of this court to grant a trial is not denied, judging by the rules and precedents of the common law courts.
    
      The defendant by the testimony discovered since the trial, is desirous of impeaching the reputation of George Bowyer; but the plaintiff contends, that if both Mr. Jacobs and he gave testimony against the will, yet it might possibly be established. Bull. (4to ed.) 260. 2 Stra. 1096. 4 Burr. 2224, 5. Mr. Jacobs was of opinion at the trial, that the testator was not sane when he drew his will; but to suppose him to have thought so at the time of his attestation, would derogate from his character. Nor by law could he have been admissible to give evidence against his own attestation. 4 Burr. 2224. He formed his judgment-probably afterwards, on subsequent circumstances, and the jury were equally warranted to make their own deductions from the whole of the evidence. Perhaps he judged from the alterations made in the will of 1784; but if the testator’s idea was to give his grand-children an equal share of his property, this objection against the latter will is obviated, and civilians have differed not a little when relations shall take per capita and when per stirpes. 2 Bac. Abr. 429. Testator was the legislator of his own family, and could dispose of his property as he pleased it should go after his death. Every person is presumed to be of perfect mind and memory, unless the contrary be proved. Swinb. part 2, § 3, p. 77. And it is a hard and difficult point to prove a man not to have the use of his reason and understanding. Ib. 78. Two witnesses deposing sanee mentí, are preferred and believed to one hundred, touching insanity. Hargr. Co. Eitt. 246. b. (in note.)
    It is said 3500I. is at stake, but value alone is not a ground for granting a new trial. ,2 Term Rep. 113, 120. No new trial will be granted, unless the evidence greatly preponderates; per Foster. 1 Burr. 396. Where there has been evidence on both sides, though the jury find a verdict contrary to the opinion of the judge, it is no ground to set it aside. 1 Wils. 22. So when there is a contrariety of evidence. 3 Wils. 47. In the case of Purviance et al. v. Angus in the High Court of Errors and Appeals, a new examination into the facts was refused, though applied for on the discovery of new evidence.
    The jury are the sole judges of the credit of the witnesses. One subscribing witness has sworn to the insanity of the testator; one other is dead, but as he attested the will, it is to be supposed he would have sworn to the same effect. And Mr. Jacobs, the remaining witness, in his testimony, must have combined the opinions of others with the fact he gives evidence of: *but the sanity of the testator was left at [-*113 all the evidence, to be judged of by the jury. *-
   M’Kean C. J.

A court of equity will order a new trial on an issue directed to be tried at law, without setting aside the former verdict. It is merely for the satisfaction of the conscience of the chancellor. But I greatly doubt the power of the register in a cáse similar to the present, where an issue has been directed under the law, to try the validity of a will. Undoubtedly, however, the court where the trial is have a power over the verdict. George Bowyer has proved the due execution of the will, by the testator, in the possession of his understanding. William Bowyer, one other of the witnesses, is dead, but his subscription to the will is a very powerful presumption in its favour. One affirmative witness, by the rules of law, countervails many in the negative. The sanity of the testator was submitted to the jury, upon all the evidence; there was a contrariety of evidence, but they were judges of the credibility of the witnesses. I think it highly probable, that a second jury would give the same verdict, even with the evidence lately discovered. I think therefore there are no grounds for us to award a new trial.

Shippen J.

The court discovered at the trial no leaning in whose favour the verdict should go. The sanity of the testator was fairly left to the jury to be dispassionately judged of on the whole of the evidence adduced to them. They have'validated the will on full consideration. One circumstance strikes me in the course of this business, on the testimony of Mr. Jacobs, from whose evidence the principal difficulty arises. He was sent for to draw the will; he stopped at different periods during the transaction, when he was doubtful of his understanding; but he went on with the will, when he found the testator in a better state of mind. Unquestionably, he then concluded in favour of his sanity. As to any conclusions he may have drawn since, the jury could form their judgment equally with himself. I am of opinion against a new trial.

Yeates J.

I concur. The sanity of the testator was submitted by the judges who tried the cause to the decision of the jury as a simple fact. The credibility of the witnesses falls within their more immediate and peculiar province; they are the constitutional judges of the fact. 3 Wils. 47. The difficulty which occurs from the testimony of Mr. Jacobs, has been already fully obviated by the remarks of Mr. Justice *1141 Shippen. Upon the trial, *Mr. Jacobs has most prob- -* ably blended opinions formed on facts subsequent to his drawing the will, wi-th the occurrences which arose previous thereto. George Bowyer swears expressly to the sound memory of the testator. A strong argument in favour of the will arises from the subscription of William Bowyer, who is since dead. The presumption of law appears to be in support of the sanity of the testator, and it is a hard and difficult point to prove his want of understanding. I would also observe, that no very great share of reason is necessary to validate a will, where there is no fraud or imposition. The intended disposition of a man’s property by this last solemn act, must in general be a subject frequently occurring to him, and his mind is most frequently made up at different periods, how his estate shall go after his death. It is seldom the thought of the moment, but the collected resolutions and determinations of a succession of years.

. Cited in 54 Pa., 222, in support of the proposition that a change of intention is of no importance if there he a sound mind unconstrained, but when the question is whether there he such a mind, such charge may be adduced to aid the inquiry.

In common cases, unless upon the strongest grounds, and under the most special circumstances, I conceive it would be dangerous in the highest degree, to grant a new trial, on account of evidence discovered since the former verdict, which the party, with due diligence, might before have procured, and that the settled rule of law is so. 5 Bac. Abr. 250.

Upon the whole, I think the jury were the proper and constitutional judges of the fact: it does not appear to me that injustice has been done, and I am of opinion against a new trial, and that judgment be entered for the plaintiff.

Mr. Justice Bradford declined giving any opinion, having been concerned at the trial as counsel for the plaintiff.  