
    *Spencer v. Moore.
    [April, 1798.]
    Will — Admissibility of Evidence. — Evidence contradicting' that of tlie attesting witnesses to a will, may be received to invalidate the will.
    Same — Testamentary Capacity — Extreme Old Age.— The greatness of the testator’s age is not proof of his incapacity to make a will; for a man 100 years old may be very competent.
    Same — Probate —Liability oi Executor for Costs.  —If a person named executor in a paper purporting to be a will, offers it for probate in the district court, and it is there established; bnt the judgment is reversed by the court of appeals, the executor does not pay costs in the district court.
    This was a contest about the will of Francis Moore; and the question turned upon his competency at the time of making it.
    There were three attesting witnesses; and the testator’s son Reuben was best provided for by the will.
    One of the attesting witnesses said, that Reuben came to his house, and asked him to go and witness the will; that he went, and found the testator of sound mind, although Reuben had told him that he had, in some measure, lost his reason, from a spell of sickness: that a few clauses of the will were read; which the testator said was sufficient, and signed it, as did the witness: and that Reuben took possession of it.
    The same witness, in a letter, wrote after the testator’s death, says, it would be difficult for him to say, “whether the deceased possessed his right mind, or not;” but that he was neither intoxicated, nor delirious; and that he orderded his family with decorum, without appearing, in any respect, like a person in a state of insanity.
    Another of the attesting witnesses said, that he saw the testator sign and acknowledge the will; that he was of sound mind at the time; that the witness attested it in his presence, but does not recollect, that the testator asked him to do so, although Reuben did, and the testator thanked him for it, when it was done: that the testator looked over it long enough to have read it; and asked Reuben, who wrote it; who answered, that he had written it himself the evening 'x'before; upon which he said that, if so, he must have been drunk, and put it up in his desk.
    The third attesting witness said, that he witnessed the will at the request of Reuben; that the testator was then of sound mind, but his faculties were impaired, sometimes more, sometimes less: that the testator did not s’ay it was his will; but acknowledged the signature; and, after the attestation was over, put it in his desk: that the will appeared to be in the hand writing of Reuben.
    Other witnesses were examined: Many of whom stated, that, after a severe illness with which the testator had been afflicted some time before the date of the will, his faculties went rapidly into decay; that he sunk into dotage and incompetency; and although, to a stranger, his conversation would not, in the first moments of an interview, betray the wreck of his mind, a short continuation of the discourse never failed to evince derangement; that his imbecility prevailed at the period of making the will; and that Reuben had great influence over him. Others, less familiar with him, stated their belief that he was competent, founded chiefly on little matters indicating habit, rather than mental energy.
    The-district court established the will; and Spencer and Ford appealed to the court of appeals.
    Wickham and Randolph for the appellant.
    A testator should be completely competent at the time of making the testament; for it will not suffice that he possesses the dregs of memory; he must have a sound and disposing mind, so as to be able to bestow his propert}' with understanding and reason ; because that is the same and perfect memory which the law requires. The marquis of Winchester’s case, 6 Co. 23. But here the deceased, upwards of eighty years of age, feeble and doting, had lost all the energies of his mind, and was but the shadow of a man. In this benighted state, cut off from the society of the rest of his children, and a prey to one son only, he was improperly prevailed on to *sign a paper, already prepared for him, and bestowing the largest proportion of his estate upon that son, contrary to his avowed intention, during his better days, of making an equal division of it among his children. It was therefore not thé voluntary transaction of a man of sound and disposing memorj'; but the obsequiousness of imbecility and pupillage to the mandates of a governour. Consequently, the district court erred in establishing such a paper as a will, and the judgment ought to be reversed. Pow. Dev. 146.
    Washington and Warden, contra.
    A man having made a will, is to be presumed competent, until the contrary is shewn; and, as total incapacity is not proved here, the will was rightly established. Beckwith v. Butler, &c., 1 Wash. 224. The attesting witnesses state that his mind was sound at the time; and their opinion ought chiefly to be regarded, Pow. Dev. 69; especially as all the testimony shews, 'that he was occasionally discreet; and there is no proof that any undue influence was used to prevail upon him to sign the will.
    Cur. adv. vult.
    ROANF, Judge. Before I advert particularly to the circumstances of this case, I will lay down some principles which appear to be founded in reason, and sanctioned by respectable authority.
    1. Those who would impeach any act on the ground of incompetency in the grantor (his general competency being presumed) must clearly prove that incompetency to exist, as at the time of executing the instrument in question.
    2. A general incompetency being established to exist, any deed made thereafter, must, in order to be considered valid, be proved, by at least as strong testimony, to have been executed in an interval of competency. This doctrine laid down, in the books, as relative to a state of lunacy, which state always admits of lucid intervals, applies, a fortiori, with respect to a state of dotage, or superannuation. For *the latter rarely admits of intervals of superior sanity, but is generally equitable and uniform.
    3. That the evidence in such cases, as applying to stated intervals, ought to go to the state and habit of the person, and not to the accidental interview of an individual, or to the degree of self possession in any particular act.
    I will test this case by the standard of these principles.
    It is clearly proved, in the cause, by persons intimately acquainted with the testator, and who had dailjr an opportunity of judging of his state and habit, that he was, at a time anterior to the execution of his will, incompetent to make a distribution of his property. It is also in proof that the appellee Reuben Moore, was himself of the same opinion. It is not necessary to fix the precise origin of'this general incapacity. Its being antecedent to the execution of the will in question is sufficient to impose on the appellee the necessity of establishing the existence of an interval of rationality in the satisfactory manner, which the position I have laid down seems to require.
    But this particular fact is only proved by those who were not in the habit of visiting him, and had a very short interview with him: which interview, too, was attended with circumstances, which, independent of other proof, would render the conclusions they have drawn, in this respect, very questionable. This testimony, too, is confronted by strong testimony to shew that, at a very advanced stage of his debility of understanding, a slight observer might be deceived, and draw erroneous conclusions with respect to the state of his mental faculties. It is weakened, too, by the circumstance of the secrecy practised by the appellee Reuben Moore, and his calling upon persons to witness the will, who were not in the habit of seeing the testator generally, and who did not remain long enough with him at the time, in question, to enable them to form an accurate judgment on the subject. To say nothing of the admission of Wharton Randsdale in his letter to Petty, of November 20th, 1796, “that it would be difficult for him to determine *whether the testator was possessed of his right mind or not.” There is nothing more clear, than that a will may be set aside or established by evidence contrary to, and in the mind of the court overruling, that of the attesting witnesses. The question of sanity, like other questions of fact, must be decided by the testimonjT which preponderates.
    On the present occasion, I am very sanguine in declaring-, that the testimony of the subscribing witnesses and other witnesses for the will, is insufficient to establish the competency of the testator on the 6th of October, 1793: and with respect to the auxiliary testimony in favour of the will, I will make one general remark, which is, that it is generally given by persons strangers to, or transiently seeing, the testator, and goes to particular acts of self possession, and not to his general state and habit.
    With respect to the case of Beckwith and Butler, 1 Wash. 224, I am not particularly informed of the grounds, and extent of the decision of this court thereupon. But I have looked into the record, and I find that the only subscribing witness to the deed of gift in question, who was examined, declares, that the grantor, sir Marmaduke Beckwith, came into a room, where the deponent, two other subscribing witnesses, and the grantee, Jonathan Beckwith, were, and desired his son to read the deed of gift to him; which he did. That sir Marmaduke Beckwith then rose up from his seat, and made his mark, desiring his son to write his name around it. That sir Marmaduke Beckwith acknowledged the deed and desired the witnesses to sign their names thereto, after which he left the room. The deponent further said, that he was long acquainted with the said sir Marmaduke ; and that, upon that day, and at the time he executed the deed in question, he appeared to be as perfectly in his senses as ever he knew him, and entirely sober and unaffected with liquor.
    The conduct of the grantor, it will be seen, was entirely different from that of the present testator in every circumstance.
    *The circumstances of the one exhibits a deed moving spontaneously and deliberately from the grantor. In the present case, the testator was an instrument in the hands of the appellee, and might have been made to effect almost any purpose. So that admitting that a prior incapacity was established to exist in the grantor in the case just quoted, as to which I have formed no opinion from the tesi-mony, there was in that case much stronger evidence to shew an interval of rationality, as at the time of executing the deed, than can possibly be found to exist in the present case.
    Upon the whole, I think the judgment of the district court must be reversed.
    CARRINGTON, Judge. Although old age is not, of itself, evidence of incapacity, (for a man a hundred years old may be very competent,) yet the general tenor of the testimony here, evinces the incapacity of the testator; and therefore I am of opinion that the judgment of the district court should be reversed.
    L/YONS, Judge. The testator must be of disposing mind and memory at the time of making his will: which is the true time to try his mind; and the witnesses who attest the will are the proper triers in general; but here the whole current of the testimony proves incapacity so clearly, that it greatly outweighs that of the subscribing witnesses. I concur, therefore, that the judgment of the district court ought to be reversed.
    At entering the judgment in this court, a question arose, whether the appellants should recover their costs in the district court?
    Wickham. There is no difference between this and other cases. The party prevailing always gets costs.
    *Warden, contra.
    The appellee was obliged to bring the will for probate; and he ought not to be punished for doing his dut3'.
    Washington, on the same side. This is a case sui generis. The executor was bound to offer the will for probate; and therefore ought not to incur loss for performing what the law required of him: which must be the case, if the appellants recover costs; for the testator’s estate will not be charged with them as in general cases respecting his affairs; but the executor will be obliged to pay them out of his own pocket.
    Wickham, in reply.
    That argument begs the question. It supposes the appellee to be executor, when he is not. There is no circumstance in his favour; for he contrived the will, and obtruded himself into the situation.
    The court expressed different opinions upon the subject; but, at length, Washington cited the case of Wilcox v. Rootes, in this court, where costs were not given.
    
      
      Will — Testamentary Capacity— Old Age. — If failure of memory be merely such as is incident to old age, it does not affect testamentary capacity. Montague v. Allan, 78 Va. 598. See Jarrett v. Jarrett, 11 W. Va. 584.
      Deeds — Insanity—Lucid intervals — Onus Probandi.— The principal case is cited in Fishburne v. Ferguson, 84 Va. 108, 4 S. E. Rep. 580, for the proposition that, when, on the trial of an action to cancel a deed, a state of general derangement of the grantor’s mind has been established, and a lucid interval is claimed to have afterwards prevailed at a particular period, then the burden of proof is on the party alleging such lucid interval, to show sanity and competence at the period the act was done, and to which the lucid interval refers. And the evidence applying to such interval ought to go to the natural state of mind and habits of the person, and not to the accidental interview of any individual, or to the degree of self-possession in any particular act.
      Will —Capacity —Senile Dementia — Lucid Interval. —There may be such a thing as a ‘‘lucid interval.” in a case of senile dementia, during which the person will be competent to execute a will. Kerr v. Lunsford, 31 W. Va. 659, 8 S. E. Rep. 493. See mono-graphic note on ‘'insanity’' appended to Boswell v. Com., 20 Gratt. 860.
    
    
      
      Same — Probate—Liability of Executor for Costs.— The principal case is cited in Coalter v. Bryan, 1 Gratt. 94, to the point that, if an executor propounds a will in the original court of probat, which is rejected as invalid, the general rule is that costs will not be awarded against him. See Roy v. Roy, 16 Gratt. 418, and monographic note on “Costs” appended to Jones v. Tatum, 19 Gratt. 720.
    
   PER CUR.

That settles it; and therefore the appellants must not have costs in the district court.  