
    Rachel E. Moseley and George G. Moseley vs. Thomas Eakin and James Hollingsworth.
    
      Will — Evidence—Witnesses—Husband and Wife — •Verdict.
    TI10 Act of 1866 making parties to a cause and persons interested therein competent witnesses, does not remove other causes of disqualification.
    The proviso of the same Act that neither husband nor wife shall be “required to disclose any communications to each other during coverture,” was intended to protect only such confidential communications as by the rules of the common law were excluded. Where the testimony was competent by those rules, it is competent under the Act.
    Where on the trial of an issue as to the validity of a will which entirely excluded the testator’s widow and only child, it was intended to be proved that the testator’s mind had been poisoned by false insinuations as to his wife’s infidelity. Held, That it was competent, in aid of such proof, for the widow to testify that the child was in fact the testator’s child.
    On the trial of an issue as to the validity of a will, where the suggestion contains several grounds, it is error to charge the jury, if they find against the will, to specify the ground on which their verdict is founded. The verdict should be general — either for or against the will.
    BY GLOYER, J., AT EDGEFIELD, SPRING TERM, 1868.
    The report of bis Honor, the presiding Judge, is as follows :
    “This was an appeal by suggestion from the decree admitting to probate the last will and testament of Hugh Moseley, dated October 26, 1863.”
    The following issues were suggested:
    
      “ 1. That the will was not legally executed.
    
      “2. That undue influence was exercised.
    
      “3. That the testator was of unsound mind.
    “ 4. That the testator was under mental delusion when the will was executed.”
    “ 1. It did appear to me that all the legal formalities required by the law had been complied with when the will was executed ; instructions, reading over and signing in the presence of three witnesses, were established by the evidence, which is herewith reported. The evidence of Mr. Parker, in connection with General McGowen’s, showed that this was the will alluded to in General McGowen’s evidence; and I held, contrary to the impression of one of the counsel, that it was not necessary that the witnesses should see each other sign.
    “2. Bachel E. Moseley, the widow of testator, was sworn, and I excluded so much of her evidence as consisted of communications between her and her late husband, the testator, supposing that the Act of Assembly which made her a competent witness, expressly excluded such communications.
    “ 3. The marriage of testator having been established the maxim pater est quern nuptiee demonstrant necessarily applied, and this and other evidence from which the paternity of George G. Moseley might be inferred, seemed to • the presiding Judge to supersede the evidence of the wife, (even if admissible under the late Act of the General Assembly,) for decency’s sake.
    “4. The jury was instructed, that if they were satisfied, that the testator, when he executed his will, was under a mental delusion respecting the fidelity of his wife and the legitimate paternity of her child, especially if such delusion was the result of false information, designedly communicated, and that thereby his reason was dethroned, then he was not in possession of that mental capacity which the law requires. That in such a frame of mind the heated imagination, from trifles creates such confirmation of the falsehood that reason has ceased to perform her office, and his conclusions must be false.
    “5-6. Against objection I admitted the conversation of the testator with John Rush, showing the reason of his alienation from his wife, and the grounds of his suspicion respecting her fidelity, in which obscene language was alleged to have been used by her, and which was pertinent to the issue presented respecting his mental delusion, the case depending mainly on the reasonable ground of testator’s suspicion, on which much evidence was offered, and especially as to the purity of her character.
    “7. The evidence is reported, and was submitted to the jury without any remarks calculated to control their conclusions.
    “8. I did submit all the issues to the jury, and did instruct them to indicate the issues on which they found, if their verdict should be against the will.”
    The following is the evidence introduced in this case:
    “ 1. W. F. Durisoe is Ordinary of Edgefield district, ■and was so in 1868, and the will now shown to him is the one propounded in his office for probate.
    “2. William II. Parker lives at Abbeville, and is a member of the bar and commissioner in equity. He saw the testator sign this will, and with General McGowen and A. H. McGowen, he witnessed the execution of it, and saw the witnesses sign. It was executed at General McGowen’s office, in presence of all the witnesses, who are attorneys. It was in the forenoon, and General McGowen informed them for what purpose they were there, and asked testator if this was his will, who replied yes. Testator was an elderly man, and conversed about his will and the testamentary dispositions. Before and after signing, witnesses endeavored to find if he was competent, and had no reason to doubt it. Mr. A. H. McGowen died in 1863 or 1864. The will, (which was offered in evidence,) is in General McGowen’s handwriting, except first line, which is in witness’; can’t say certainly if will was read, but thinks so. The first clause.he heard, and when asked if this was his will, testator said yes. -f The conversation with testator was about his unfortunate alliance, and common topics. Testator said plainly that his wife h^d been unfaithfyl, and that he did not claim the paternity of her child, and, except what the law allowed, he desired to cut her off. He never saw testator before or since, and was then with him twenty or thirty minutes. He was calm and deliberate when talking of his wife, and showed no want of connection in his conversation. Said he believed he knew who was father of child, but named no one; witness got first information of will from General McGowen, and his impression is that will was read. The State of South Carolina is in his hand, and this confirms his impression that the will was read; thinks testator took the will after it was signed; no persuasion was used.
    “3. General McGowen was subpoenaed, and in his absence the following evidence, taken by commission, was read: Witness answers, he did know Hugh Moseley, deceased, slightly, and did write and attest his will, at his request; that he was carefully instructed by Mr. Moseley how to write his will; that the will was carefully prepared according to instructions, and was read over to him, who heard it and approved it. Mr. Moseley heard it read, approved it and signed it in presence of witness. Mr. Moseley heard and understood the contents; witness conversed with Hugh Moseley, and found him perfectly rational, and in his judgment competent to make a will; he talked perfectly rational, gave instructions intelligently, and understood the will perfectly; witness saw no sign whatever of incompetency. The manner of Mr. Moseley while in witness’s presence was not frantic, but rational and natural. The will was written in his, witness’, office, at Abbeville Court House. As well as he remembered, Mr. Moseley said, he wished witness to Avrite his will, in order that no one could set it aside; Moseley said he knew there would be efforts to set his will aside, and he wanted it written and executed in such a way that it would stand. Witness does not.now remember whether he ever saw testator before he saw him on the subject of the will. + Witness does not remember whether he ever did any business for testator before writing his will; remembers very little about the circumstances; thinks Thomas Eakin came with Mr. Moseley; Moseley gave the instructions himself; thinks the will was written the same day instructions wer¿ given; testator conversed about his family; manner was natural, but it was manifest that his resolution was very firmly fixed; knows no reason to doubt the competency of testator to make a will; does not remember that any one besides Thomas Eakin was with the testator; is not certain Thomas Eakin was there, but thinks so; witness can’t now say whether he had ever known testator before writing his will.”
    “EVIDENCE EOR APPELLANTS.
    “1. Alexander Deal. — Knew testator well for about thirty-five years; and he was about seyenty years old at his death. Knew his wife twelve or fourteen years, and lived three miles from her ; and she went to school to witness ; last time seventeen or eighteen years since. For virtue and chastity, her character in community varies some. After her marriage, he first heard imputations on her character. She was widow of Kichard Weatherington at her marriage with testator, and had three or four children by Weatherington. -f Lived three miles of testator; who was man of general good mind; would sometimes meet bis nearest friends and not notice them ; was neither very bright nor dull; was appointed magistrate but declined to act; was appraiser of property; kept accounts at his blacksmith’s shop, and were correctly kept. None thought him crazy. The testator and his wife did not live long together, and they separated. Heard testator say his wife was not true to him. Testator’s first wife was widow of Hollingsworth, and bad a child by him, Hollingsworth. In some instances testator’s wife’s (appellant) infidelity was believed. W ith his first wife he lived happily. Testator was influential at elections, and candidates sought his interest.
    " 2. Rachel E. Moseley, (widow.) — Kichard Weatherington was her first husband ; married him in 1847 or 1848; ana bad two children by him. They lived happily and he died in 1857. She married testator December 18th, 1857. She lived one year, five miles of testator, and at times, one and a half miles. Knew testator from her childhood. Her child was born October 4th, 1858. For the first four or five months testator was kind to her. He came home one day much dissatisfied with her. Walked all night with his stick. Towards day went into his room and shut the door. He had been that day at James Hollingsworth’s. His conduct towards her changed in about five months, and she was then in a family-way. She stayed with him seven months; and was in fear two months. She went to her mother’s; and testator came there when babe was four weeks old. At times he talked well, and then angry. He did not ask to see the child. When she asked if he wanted to see it, he said nothing except that it was pretty. He would not allow her to stay.
    “3. Elbert Devore. — Hever heard anything against her character; neighbors thought well of her. Testator was a man of strong prejudices, and his conduct varied. The child favors him. + Was an old man. Testator and child have blue eyes, and fair skin, and child’s gait is like testator’s. + + Testator was active and energetic, and man of vigor.
    “4. Sebron Stalnaker. — As far as he knows, Mrs. Moseley’s general character for virtue and chastity is good. Sees a good deal of favor to testator in the child, and in the child’s gait. + Testator was man of mind; sharp, and a close dealer. If she was a woman of bad character, testator, he supposes, would have found it out.
    
      “5. W. 0. Robertson. — Married testator’s niece. Five or six months after his marriage, testator called witness to account. Said he thought child was bis (witness’.) That James Hollingsworth and his wife said so. He never bad sexual connection with her. Has heard nothing against her chastity. He sees resemblance between testator and child, -f Visited testator’s frequently; who managed his affairs well, and was close; was of strong prejudices and changeable to some extent. Child has quick walk, blue eyes, and fair complexion.
    " 6. William Flynn. — Lived a mile of testator, and knew him since 1865; was of strong prejudices, and excitable; would treat neighbors kindly sometimes, and sometimes not; was a good judge of property; had good judgment. Witness had his work done in testator’s shop. He had a quick, shuffling walk. Her character for chastity is good. The first time he heard of any charge against her was after difficulty with her husband. The child favors the testator some, in its walk and actions. He never proposed to Mrs. Moseley.
    “7. Josiah Langly. — Lived a half mile of testator; was of strong prejudices, and his conduct to neighbors not always the same. To time of her marriage, his wife’s character was good for chastity. + Testator was an active •business man.
    “ 8. John Hancock. — Lived a half mile of Mrs. Moseley; ber character for chastity, good. -f- Knows nothing against her. + + There have been reports against her ; has heard right sharp reports against her; has heard testator disown child.
    “9. Dr. John Lake.— Lived near testator; who was of strong prejudices, and through them he thinks he could be operated upon. He must have been eighty years old; was an active man to his death; not vigorous, but feeble. + He succeeded well in life, and was useful. His temperament such that he thinks it could be reached by bis vanity. He was once a strong man in elections.
    “10. Rachel E. Moseley, (again) — Testator, when he looked at child, asked what is its name ? Y"ou ought to name it Billy Eobertson, or William Flynn. The name of the child is George Garner. '*
    
    
      “ 11. Thomas Rodgers.• — Testator appeared to be a man of strong prejudices; has seen him bluff off some persons. Her character is good for chastity, and heard nothing against her till after her marriage; then heard rumors against her. -f Testator understood how to make money, and to take care of it; was a strict honest man; kept. his blacksmith’s account; he and his first wife lived pleasantly together.
    
      “ 12. Henry Rush. — Lived a half mile of Mrs. Moseley; her general character for chastity is good; and there was nothing against it till after her marriage. James Hollings-worth is testator’s step-son.”
    “ Eeplt.
    “ 1. A. Hollingsworth. — Knew testator forty-five jmars ; and lived some five miles. Saw him a week before he died at his house, and was up and down. He had nieces and nephews in neighborhood when he died. Was of good judgment, close-fisted, and good at a trade. When he last saw him bis mind was as good as usual. Testator and first wife lived happily. Witness is a magistrate, and married testator and his last wife, December 18th, 1857. Each swore the peace against the other. Testator applied for warrant first: he said they had had a fuss, and she had abused him ; that she had followed him and threw him down; and she denied it; said he staggered; that both were angry; something was said about her taking something out of smoke-house. Testator was a widower three or four years. There was some chat that she was, and some that she -was not virtuous after marriage ; has heard it from some of the women. Testator’s first wife was a young woman when he married her. Testator was seventy, maybe seventy-five, when he died. He had no child by his first marriage. 'He had a chronic diarrhoea for twenty or thirty years, and was feeble looking, but pert man. -j- James Hollingsworth lived a mile of testator, and always in the neighborhood. January, 1859, witness wrote a will for him, with pretty much the same provisions as this; bequests the same. James Hollingsworth came with testator; testator directed witness how to write it, and asked if she could get one-third of his land. Witness saw this will now before the Court, at James Hollingsworth’s, he thinks. Testator showed it to witness there, and witness read it. He has heard others besides the Hollingsworths speak of her want of chastity. Heard the Hollingsworths speak disrespectfully of her. Testator lived about twenty odd miles from Abbeville, and about twenty-five from Edgefield 0. H. Testator told who drew his will soon after it was written.
    “2. James Gallison. — Knew testator about seven years; and lived a mile off; and saw him often. His mind was good; and he was a business man; kept his own books and managed well. Two or three days before he died, his mind was as good as usual. He gave witness then a note for what he owed him. He was old and childish, and weak from chronic diarrhoea. lie said he had made his will and left his wife nothing but her dower. Thomas Eakin lives in Abbeville; and went with testator there to have the will made. James Hollingsworth is old and of feeble health.
    “3. A. Hollingsworth, (again.) — -James Hollingsworth is in feeble health.
    “4. Wm. Quattlebum. — Knew testator a good many years, and saw Mm six weeks before he died ; his understanding then as good as usual; but suffering from his bowels; saw no change in his mind ; was a delicate man, but pert on his feet; complained for many years; said he intended to make a will; he owned twelve or fourteen negroes; and managed his own business as long as he lived, and was capable to do so; he collected what was due to him, and paid what he owed. -)- Eor four or five months testator and his wife lived happily.
    “5. Peter Quattlebum. — Knew testator since 1831, and saw him three months before his death. Latter part of his life he had a disorder which enfeebled him. Always thought his mind good. He managed his own business well. When he last saw him, saw no change in his mind ; and tvas capable of making any contract. Witness lived three miles of him.
    “6. John Rush. — Knew testator forty-five or fifty years, and for many years lived a mile or two of him, and saw much of him. Eor fifteen or twenty years he had diarrhoea, and complained much of it, and would get up several times in the night. He did his own business, and was capable to make a will or contract to a few days of his death; and was of good judgment. + Testator said he and his wife bad had a falling out, and that she had pushed him doAvn ; that the child was not his; that he did not think that he could get one; that he once saw Richard Weatberington and his wife in the woods. This he told witness not more than six months after his marriage. R. Weatherington is now in Georgia, but was about testator’s then. Said he saw them together talking in the bushes. Testator said she once, before they separated, told him to kiss her behind. + Witness and James Hollingsworth married sisters. Testator had a great deal of influence over Hollingsworth.
    ‘*7. William Johnson. — Knew testator since 1835. He and his first wife lived happily. When he separated from the last wife she lived a mile off at her mother’s He saw testator a week or two before he died, and had a settlement with him, and he understood it all. There was no change in his memory or judgment. He transacted his own business, and managed his farm successfully. He was in seventy when he died.”
    The appellants brought the case to this Court, and now moved for a new trial on the grounds:
    1. His Honor, the presiding Judge, erred, it is respectfully submitted, in charging the jury that the execution of the will of Hugh Mosely, deceased, was sufficiently proved when only one of the two surviving subscribing witnesses testified to the due execution thereof, the other surviving subscribing witness being examined, and merely proving that the testator signed ihe will in his presence, and that witness attested to it in testator’s presence, without stating who the other subscribing witnesses were, or stating any other fact by which the will propounded could be identified.
    2. His Honor erred, it is submitted, in arresting the examination of the widow of testator by appellants’ counsel, she being a witness on behalf of appellants as to communications made by testator to his wife during coverture, on the ground that it was contrary to the Act of Assembly entitled “An Act to make parties, plaintiffs and defendants, in all cases, competent to give testimony in such cases in like manner as other witnesses,” ratified 19th September. 1866, whereby testimony material to appellants’ case was excluded.
    3. His Honor erred, it is respectfully submitted, in refusing to allow the widow of testator to say, when asked by appellants’ counsel, who was the father of her child, her co-appellant.
    4. In charging the jury that if they should come to the conclusion that testator, at the time of executing his will, was laboring under a delusion as to the faithfulness of his wife and the legitimacy of the child, from false information of others, and not from something he knew himself, it would warrant them in finding against the will. His Honor erred, it is submitted, in not instructing the jury, that if such delusion existed in the mind of the testator, at the time of making his will, even though it arose from something which he supposed he knew himself, and the will was the result of such delusion, they were equally warranted in finding against the will.
    5. Having ruled that it was incompetent for the widow of testator to disclose communications made to her by testator, her husband, during coverture, his Honor erred, it is submitted, in permitting the appellees, though objected to, to prove the declarations of testator, testified to by the witness, John Push, the brother-in-law of the executor, James Hollingsworth, who is a legatee under the will, of obscene language, which, testator alleged, was used by his wife to him during coverture.
    6.Because said testimony was incompetent, not being responsive to any testimony introduced by appellants, nor pertinent to any issue tendered, and should have been ruled out.
    7. Because the verdict of the jury is contrary to the evidence in this, to wit, it decides that the testator was not laboring under a morbid and insane delusion as to the infidelity of his wife and the illegitimacy of the child at the time of making his will, whereas there was no proof of her infidelity and conclusive proof of the legitimacy of the child.
    8. His Honor erred in charging the jury that if they should find against the will, they must specify the ground upon which they so found.
    
      Adams & Bonham, for appellants.
    
      Burt, Butler & Youmans, contra.
   The opinion of the Court was delivered by

DüNKIN, 0. J.

The presiding Judge reports that this was an appeal from the decree of the Ordinary of Edgefield District, admitting to probate the last will and testament of Hugh Moseley, deceased, dated 26th October, 1863.

The following issues were suggested: First, That the will was not legally executed. Second, That undue influence was exercised. Third, That the testator was of unsound mind. Fourth, That the testator was under mental delusion when the will was executed.

The jury rendered a general verdict in favor of the will. Erom this verdict the plaintiffs, who are the widow and only child of tbe testator, have appealed on several grounds. At tbe period of the execution of the will the testator was between seventy and eighty years of age. The instrument is not before the Court. But it was admitted that no part of the considerable estate of the testator was given to either of tbe appellants, but that the whole was disposed of to collateral connections.

In the view taken by the Court, it is not necessary to recapitulate the testimony or to comment particularly upon all the grounds of appeal. The report of the Judge states his charge upon ihe several points in which exception is taken.

In reference to the several grounds of appeal, except the second, third, and eighth or last ground, the Court thinks the charge of his Honor obnoxious to no just objection, and deem it well vindicated by the reasons stated in the report.

The second ground presents more difficulty, and depends, in a great measure, upon the construction of the Act of Assembly passed in September, 1866, (13 Stat. 377,) and entitled “An Act to make parties, plaintiffs and defendants, in all cases, competent to give testimony in such cases, in like manner as other witnesses.” By the first section it is declared that “on the trial of any issue joined, &c., the parties thereto, &c., and all persons interested in the same, except as hereinafter excepted, shall be competent and compellable to give evidence, &e., on behalf of either or any of the parties to the said action or other proceeding.” Bjr the existing law, not only persons interested, but parties in the cause, who might have no pecuniary interest, such as executors and administrators and others, were excluded from testifying. The manifest object of the Act was to remove these causes of disqualification. But it was not intended thereby to restore the competency of a party otherwise disqualified. A felon convict, or a person who bad been convicted of an infamous offence, and was after-wards a party in a civil cause, either as plaintiff or defendant, was not restored to his competency by virtue of the Act of 1866. In other words, the Act was not intended, in such case, to have the effect of an executive pardon.

By the third clause it is provided that “ no person shall be required to answer any question tending to criminate himself; nor shall husband or wife be required to disclose any communication made to each other during coverture.” It was an axiom of the law that no one should be required to give testimony that would criminate himself. By the former of these exceptions the Legislature declare that this protection should be preserved. So, upon well settled principles of public policy, as well as because of the identity of their legal rights and interests, confidential communications between husband and wife belong to the class of privileged communications, and are protected. The exception in the third clause was manifestly intended to preserve this rule of law, although the husband or wife might be a party in the cause, and might be required to testify under the general and comprehensive terms of the statute. But no more was intended than to preserve the rules of law. The declarations of husband and wife arc subject to the same rules of exclusion which govern their testimony as witnesses. (1 Greenl. Ev. § 341.) But there are exceptions to the rule, both in relation to their testimony and their declarations. Thus, on an indictment against the husband for assault and battery upon her, the wife is a competent witness; and so, says Professor Greenleaf, “the wife has, on the same ground of necessity, been sometimes admitted as a witness-to testify to secret facts, which no one but herself could know. Thus, upon an appeal against an order of filiation, in the case of a married woman, she was held to be a competent witness to prove her criminal connection with the defendant, though her husband was interested in the event, but for reasons of public decency and morality, she cannot be allowed to say, after marriage, that she had no connection witb her husband, and that, therefore, her offspring is spurious.” (Id. § 344.) In Aveson vs. Lord Kinnaird, (6 East, 188,) the declarations of the wife -were held to be admissible for or against the husband, wherever they constitute part of the res geslse which are material to be proved; as where he obtained insurance on her life as a person in health, she being in fact diseased ; or in an action by him against another for beating her, (Skin. 402, Thompson vs. Freeman;) or in an. action against him for her board, he having turned her out of doors; (Walton vs. Green, 1 C. & P. 621.) So, where she acted as his agent. (Thomas vs. Hargrave, Wright vs. Hargrave, Wright, 595.)

The presiding Judge reports that ‘‘Rachel E. Moseley, the widow of the testator, was sworn, and I excluded so much of her evidence as consisted of communications between her and her late husband, the testator, supposing that the Act of Assembly which made her a competent witness, expressly excluded such communications.” The proviso of the Act was intended, as has been remarked, to preserve the principles of the common law upon the subject. If the communications were of a confidential character, and if, being such, they were not within the exceptions recognized by the rules of evidence, they were properly excluded, not otherwise. And the Judge supposed himself constrained by the terms of the Act to exclude all communications between the witness and her late husband, the Court is unable to determine whether the communications proposed to be given in evidence were or were not such as, by the rules of law, should have been received. If so, they were not excluded by the Statute of 1866.

Then as to the third ground. It was proposed to prove by the witness that her deceased husband was the father of her child. The testimony was excluded upon the ground that, the marriage of the parties having been established, the paternity of the child was to be legally inferred, and that "this and other evidence seemed to him (the Judge) to supersede the evidence of the wife, (even if admissible under the late Act of the General Assembly,) for decency’s sake.” The allegation was that the feeble and suspicious mind of the husband had been poisoned by the false insinuations of parties interested as to his wife’s infidelity, and that their machinations had been but too successful. To prove the falsity of these insinuations might require other evidence than the .admitted solemnization of the bans of matrimony. . Her evidence was to show that the fact was in accordance with the legal inference, and that her husband’s suspicions were unfounded. Upon the authority already cited the testimony was admissible, although she would be incompetent upon grounds of public policy and decency, to prove that the marriage had never been consummated, and therefore that her offspring was spurious. Nor was it superseded because "the paternity of her child might be inferred from other evidence.”

The eighth ground of appeal alleges error in the charge of his Honor, that if the jury should find against the will, they must specify the ground on which tbeir verdict was founded.” The report states that all the issues were submitted to the jury, and they were instructed to indicate the issue on which they found if their verdict should be against the will.

The Court is not aware of any such legal obligation on the part of the jury, nor is it believed to be in accordance with the practice of the Court. The inquiry was as to the validity of the instrument propounded as the last will and testament of Hugh Moseley, deceased. It was assailed on various grounds. Upon the validity or invalidity of the will the jury were required to be unanimous, but not necessarily, upon tbe reasons wbicb led to that conclusion. The Judge was probably misled by a supposed analogy to the practice on an issue of fraud under the Insolvent Debtors’ Law. In such case the suggestion must contain the charges and specifications; and thewerdict must answer ivith reference to each charge and specification that it is true or untrue. But this is required, (as explained by the Court in Haviland vs. Wolff, 14 Rich. 108,) “ by the diversity of effect Avhich, under the Act of 1788, (5 Stat. 79,) different charges have, when established against the applicant for relief from imprisonment.” But no such reason exists in this case! The effect of the grounds assumed in the suggestion is to invite the attention of the Court (Judge and jury) to the specific objections urged by the party, and Avhich, as they contend, should influence the general determination for or against the will. It has been often said in our books that, although a majority of the Court must concur in the judgment announced, the several members of that majority may not agree in the ratiocination of the Judge who is the organ of the Court. It is enough to require of the jury unanimity in the result, and this is obtained by a general verdict for or against the will.

The motion for a new trial is granted.

Wardlaw and INGLis, A. JJ., concurred.

Motion granted.  