
    IN RE WILL OF JOHN HOOVER.
    Wills, Setting aside Verdict Against ; Competency op Testator; Second Verdict in Favor op Same Party.
    1. On motion for a new trial, grounded on the alleged insufficiency of the evidence, this court will sustain the action of the trial justice in refusing to set aside the verdict on such ground, unless upon an examination of the entire record it should be satisfied there was clearly a legal insufficiency of evidence to sustain the verdict; and it is not requisite to the adoption of this course that the justices of the appellate court should be prepared to assert that individually, if jurors, they would have rendered the same verdict; the inquiry should be whether the . whole evidence presented might fairly have justified the jury in rendering the verdict complained of, and the trial justice in sustaining it.
    2. The question of the competency of a testator to make a will involves the inquiry whether he was of sufficient mental soundness to change any previously existing purpose he may have formed if he should think proper to do so. The mere fact that ' a will is in the direction of a preconceived purpose should have no weight unless the testator was of sound and disposing mind at the time of executing the paper. 3. Where a second verdict is in favor of the same party and appears to have turned upon the mere weight of theevidence, and the trial justice has refused to disturb it, the appellate court will allow it to stand unless it appear so plainly against the weight of the evidence as to create a strong presumption of injustice.
    4. A distinction is to be made between a case where a second verdict for the same party has been set aside by the trial justice, and a case where he has refused to again set it aside. In the former instance the appellate court will more closely scrutinize the action of the' trial court* to see that its discretion has been wisely exercised, having due regard to the special function of juries to ascertain facts.
    
    At Law.
    No. 30,061.
    Decided January 3, 1891.
    Justices Hag-ner, Cox and James sitting.
    Appeal and motion for a new trial on a bill of exceptions and case, the trial being on issues from the Orphans’ Court involving the validity of an alleged will.
    
      Judgment affirmed.
    
    The facts are stated in the opinion.
    Messrs. A. S. Worthington and Arthur A. Birney for the caveators :
    In many cases it has been' held that undue influence may be presumed from circumstances, and in the absence of any direct proof.
    So held in Drake’s Appeal, 45 Conn., 1, where the will gave $10,000 to a church. It was drawn by a vestryman of that church.
    And where a testator gave to two of his six children substantially all his property, this gross inequality placed on the proponents of the will the onus of establishing its-validity. 92 Mo., 250, Gay vs. Gillfilan.
    And where the attorney who drafted the will was considerably benefited. Smith’s Will, 95 N. Y., 516.
    Where a ward, soon after coming of age, made his will in favor of his late guardian, it was held presumptively invalid. Garvin’s Adm. vs. Williams 44 Mo., 465.
    Where a gift or bequest of $10,000 to each of the trustees appointed, one of whom was a friend and confidential adviser, and the other the attorney who drew the instrument; Held, void. Greenfield’s Case, 2 Harris, 489.
    Where a will contained a devise in favor of his medical attendant and confidential adviser, by whom the will was drawn, the court said :
    
      “ Upon the argument of this case I was strongly inclined to think that the presumptions against the will arising from the circumstances of the case ought to be held conclusive against the instrument.” Crispill vs. Dubois, 4 Barb., a., 398.
    In another case the court said: “ The presumption is strong against an act done by the agency of the party to-be benefited, especially where the capacity of the testator * * * was in any degree doubtful.” Beall vs. Mann, 5 Ga., a., 470.
    In a Pennsylvania case, the testator was “ upward of seventy jmars of age, infirm of body, and certainly not of' strong mind — exceedingly illiterate, able to write his name,, perhaps to read — during the latter years of his life showing * * * indications of folly or eccentricity.” A large part of his estate was bequeathed to his executors by a residuary clause. One of these executors drafted the will, and was an intimate friend and adviser. Held, the question of undue influence was properly left to the jury. Boyd vs. Boyd, 66 Pa. St., 283.
    In an Alabama case, where no fraudulent conduct was shown, but the trusted agent, “ by great kindness toward the testatrix, had acquired an influence over her, which, though it may not have been illegitimate, was very great,” and a considerable devise was made, to him. Held, that the burden of proof was cast on the devisee to show that the will wras not superinduced by fraud or undue influence, but was the result of free volition on the part of the testatrix. Moon vs. Spier, 80 Ala., a., 134.
    All of the above cases hold that where the confidential relation of the person benefited to the decedent is shown to exist, and he is a stranger in blood, the burden of proof is cast upon him to show that he did not abuse his opportunities. This he must do to the satisfaction of the jury.
    Fraud not an essential element. Stewart vs. Elliott, 2 Mackey, 307; Langton’s Will, 1 Tucker Sur. Rep., 301.
    It is not necessary that the person exercising the undue influence should be present at the execution of the will. “ The hand that directs such acts most generally withdraws from the public gaze.” 44 Mo., a 478.
    “ The rule that undue influence must be sufficient to overcome free agency is limited to. cases when the testator and legatee stand on a level. It does not apply where there was a confidential relation, the testator being dependent, and the beneficiary holding the dominating situation.” Banta vs. Willets (1888), 6 Demarest, N. Y., 84, citing Redf. Lead. Cas. on Wills, 522n; Tyler vs. Gardiner, 35 N. Y., 559; Taylor vs. Wilburn, 20 Mo., 306; Swinburne on Wills, 887.
    Undue influence is generally proved by a number of facts, each one of which standing alone may be of little weight, but taken collectively may satisfy the mind of its existence. Davis vs. Calvert, 5 G. & J., 269; Moore vs. McDonald, 68 Md., 321; Griffith vs. Diffenderfer, 50 Md., 488 ; Beaubien vs. Cicotte, 12 Mich., 459.
    Great age of the testator is of great weight. 10 Md., 351; Davis vs. Colbert, 5 G. & J., 302.
    Where the will is prepared by (or under the direction of) the beiieficiary and supported by his testimony, the utmost c,are should be obsérved. 3 Md., 499 ; 39 Md., 550.
    “ When evidence has been submitted to the jury on both sides, which is very conflicting, and no rule of law has been violated in its admission, it is held an error in the court to grant a new trial on the ground that the verdict is against the evidence. The jury are exclusive judges in such cases as to the weight of the evidence and the credibility of the witnesses.” Hilliard on New Trials, 454, Sec. 16.
    Messrs. Martin F. Morris and George E. Hamilton for caveatees:
    The court erred in submitting the case to the jury upon either of the issues.
    One of the grounds of the motion for a new trial is that the evidence is insufficient to support the verdict, and the appeal from the judgment overruling that motion presents the same question in another way.
    The law upon this point'is stated by the Supreme Court in the following language:
    “ Formerly it was held that if there was what is called a scintilla of evidence in support of a case the judge was bound to leave it to the jury; but recent decisions of high authority have established a more reasonable rule, that in every case, before the evidence .is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.” Improvement Co. vs. Mason, 14 Wall., 448.
    
      In a later"case, the Supreme Court states the- rule as follows:
    “If, after the plaintiff’s case had been closed/the/court had directed’ a verdict for the defendant on the ground"that the evidence, with all the • inferences that-the" jury could justifiably draw from it, was insufficient to support a Verdict for plaintiff, so that such'verdict, if returned, must be set aside, it would have followed a practice sanctioned by the repeated decisions of this court.” Randall vs. Railroad, 109 U. S., 478.
    The same principle has been uniformly adhered to by the Supreme Court in a great variety of cases which serve to. illustrate its application. Pleasants vs. Fant, 22 Wall., 116 ; Bodwitch vs. Boston, 101 U. S., 18; Schofield vs. RR. Co., 114 U. S., 615, 619; Dunlap vs. RR. Co., 130 U. S., 649, 652; Robertson vs. Edelhoff, 132 U. S., 614, 626 ; Gunther vs. Liverpool Co., 134 U. S., 116; RR. Co. vs. Woodson, 134 U. S., 621; Denny vs. Williams, 5 Allen, 1.
    The statute requiring such issues to be tried before a jury does not change the rule under consideration. This has been held in Ohio and Illinois, where the statute in- relation to such issues are substantially the same as the Maryland act in force in this District. Wagner vs. Zeiler, 44 Ohio St., 59 ; Shevalier vs. Leager, 121 Ills., 567, 568.
    Testamentary incapacity cannot be inferred from old age, mental and bodily infirmity, manifested by inability to recollect recent events, or to carry on a .continuous conversa-’ tion, or the failure to recognize friends and relatives, unless, the defect of memory be total or appertain to things essential. 1 Redf. on Wills, 3 Ed.; Title, Senile Dementia, Ch. 13, 98-9, subdivisions 7, 8, 9, and 10, and authorities cited" especially. Watson vs. Watson; 2 B. Mon., 74; Reed’s Will, Id., 79 ; Maverick vs. Reynold, 2 Brad. Sur. R., 360 ; Bleecker vs. Lynch, 1 Brad. Sur., 458; Van Alst vs. Hunter, 5 Johns Ch., 148.
    To the same general effect are the following authorities :
    Chrisman vs. Chrisman, 12 Oregon, 138; Smith vs. James, 72 Iowa, 515; Addington vs. Wilson, 5 Ind., 137; same case, 61 Am. D., 81 and notes; Coffin vs. Coffin, 23 N. Y., 9; same case, 80 Am. D., 235, and notes: Horn vs. Pullman, 72 N. Y., 276 ; Schneider vs. Manning, 121 Ills., 384; Matter of Soule, 22 Abb. New Cas., 236.
    There is no sufficient evidence to support the verdict upon the issue of undue influence. The utmost that the evidence of the caveator tends to prove upon this point is that certain persons connected with certain institutions-which received legacies under the will had opportunities to exercise influence. There is no evidence, direct or circumstantial, tending to show that they did exercise any influence whatever in procuring the will. The provisions of the will are substantially like the one testator made in 1875, when there was no doubt about his capacity and no-suspicion of undue influence, and are in accordance with his intentions repeatedly expressed to different persons. No presumption arises from the fact that no legacies.are left to the caveators. It is admitted that there were no social relations between him and them. He frequently declared that he did not intend that they should have any of the property he might leave at his death. His wife, with whom he lived for many years, was a devout member of the Catholic Church. He gave freely and largely to the institutions mentioned in- the will for many years, both during his wife’s life and after her death, and shortly before her death he himself united with that church.
    He was frequently visited by persons connected with these institutions, and his last years were undoubtedly rendered more tolerable thereby. The caveators did not visit him, or attempt to do so until they learned that he was about to die, though no reason is shown why they did not, except their indisposition to do so. Under these circumstances the will was an entirely natural and reasonable one for testator to make and it cannot be set aside as obtained by fraud or undue influence without affirmative proof of fraud, or the exercise of influence over the testator for the purpose of procuring the will, amounting to force or coercion, and destroying his free agency. 1 Redf. on Wills, 3d Ed., 524, 525; Conley vs. Nailor, 118 U. S., 235; Mackall vs. Mackall, 135 U. S., 167 ; Davis vs. Calvert, 5 G. &. J., 269 ; Tyler vs. Gardner, 35 N. Y., 613 ; Loder vs. Whelpey et al., 111 N. Y., 249; Children’s Aid Society vs. Loveridge, 70 N. Y., 395; Wheeler vs. Whipple, 44 N. J. Eq., 145 ; Herster vs. Herster, 122 Pa. Stat.; Kerrigan vs. Leonard, N. J. Prerog. Court, 8 Atl. Rep., 503; Connover vs. Connover, N. J. Prerog. Court, 8 Atl. Rep., 500, 502; Matter of Bartholic, 22 N. Y., 911; Matter of Soule, 22 Abb. New Cas., 236 ; Will of Smith, 95 N. Y., 516; Will of Martin, 98 N. Y., 193; Red. Cas. on Wills, 400, 401, 500, 501; The Will of Myer, 14 N. Y., 363; The Will of Dunham, 15 N. Y., 869; Bleecker vs. Lynch, 1 Brad. Sur., 458, 471.
    If the court can see that a fair trial and impartial verdict' has not been had, it should not consider whether it can be had — certainly should not assume that it cannot be secured, but should do justice as far as it is concerned by granting .a new trial and leave the responsibility with another jury. Taylor vs. C. RR. Co., 79 Ga., 330, 340; Williams vs. So. Pa. Rwy. Co., 72 Cal., 120; C. R. and P. RR. Co. vs. Herring, 57 Ill., 59; Davis vs. Roper, 33 Eng. L. & E., 511; Hewett vs. Wheeler, 23 Conn., 284; Means vs. Means, 6 Rich. S. C. Law, 1; Trustees, etc., vs. Broadfield et al., 30 Ga., 1.
   Mr. Justice Hagner

delivered the opinion of the Court:

This is an appeal from rulings of the justice holding the Circuit Court upon a trial on issues from the Orphans’ Court to test the validity of a testamentary paper propounded as the last will and testament of John Hoover.

The caveatees have brought the case here upon twenty-■eight exceptions taken during the trial; and upon an appeal from the refusal of the court to set aside the verdict and .grant a new trial. The voluminous record contains a case .stated as well as the bills of exceptions.

The testator was, ninety-two years of age; a widower without, children; and his near relatives and heirs at law were several nephews and nieces, most of whom are the caveators. • He had accumulated a large and. valuable estate, real and personal; but a considerable of this he had given, before the execution of the will, to institutions connected with the Roman Catholic Church (to which communion he belonged), and to one of his nieces; and to others not related to him. The only beneficiaries under the alleged will, with the exception of a few legatees not related to him, among whom were Rudolph Eichhorn, the executor and his daughters, were Roman Catholic colleges, asylums, churches and hospitals.

On a former trial, the jury rendered a verdict against the-will, which was set aside by the same trial justice; and this ruling was affirmed by this court on appeal. 7 Mackey, 541. A similar verdict for the caveators was rendered on the second trial.

Twelve only of the twenty-eight exceptions "were at all insisted on by the caveatees at the present hearing, three of which arise out of questions upon points of practice; six were taken to decisions upon evidence; and three to rulings upon the prayers. But we have nevertheless examined each exception with care, and are satisfied neither of them contains any error prejudicial to the caveatees. It is not necessary to repeat the result of our examination of^he objections urged to such of them as were argued here, as the main contest before us had reference h> the refusal of the court below to set aside the second verdict for the caveators and grant a new trial'.

Eight grounds of objections were set forth in the motion, although only the 2d, 3d, 4th,.5th, and 6th reasons were urged on' the argument. These insist there was no evidence to sustain the verdict; that it wás contrary to the evidence, and to the weight' of evidence; that it was. unreasonable, and contrary to the law, and' to'ttie'in'structibns.of the court.:

In the case reported in 7 Mackey, an appeal had beeii taken by these caveators from the ruling of the trial justice setting aside the verdict of the jury in favor of the caveators and awarding, a new trial. We refused to disturb that ruling; holding that every intendment should be made in favor of the action of the trial justice, who from the nature of the case was better qualified to judge whether the verdict was "warranted by the evidence, than the appellate justices •who had not the advantage of hearing the witnesses; that on the appeal all proper allowance should be made for that circumstance, and as the record disclosed evidence that might reasonablj’ have led the trial justice to think the verdict was wrong, while declining to express our own opinion upon its force we did not discover on the face of the record such error in the action of the court below as would justify us in reversing its ruling.

In the present case, confronted as we are^by the refusal of the same justice to set aside a second verdict in favor of the caveators, we consider ourselves bound, upon the same general principles to sustain the action of the court below, unless upon an examination of the entire record we shall be satisfied there was clearly a legal insufficiency of evidence to sustain the verdict. It is in no degree requisite to the adoption of this course that the justices of the appellate court should be prepared to assert that as jurors they would have rendered the same verdict. The inquiry should be whether the whole evidence presented might fairly have authorized the jury to render the verdict complained of; and justified the trial justice in sustaining it: This examination we have carefully made, and as the result we have no hesitation in deciding such evidence is found in the record.

The testimony is so voluminous that anything like a full examination would involve an expenditure of time not at our disposal. It may not be unsuitable, however, to notice briefly its application to the points at issue: The question really presented by the issues sent by the Orphans’ Court, though in several forms, were; first, whether the testator-had sufficient mental capacity to make a valid will when he signed the paper writing in evidence, on the 20th of September, 1888; and second, whether the execution of that paper writing was procured by undue influence practiced upon him. There was no insistence on the part of the caveators that the execution of the paper was procured by fraud, except as fraud might be involved in the proof of undue influence; as was explained bjr the trial justice to the jury. Upon the question of mental capacity the court below, at the request of the caveatees, substantially told the jury the testator’s mental capacity was to be presumed ; that it was therefore incumbent upon the caveators to show by satisfactory evidence his inability to transact understandingly the common and ordinary affairs of life such as making deeds and contracts; and if the caveators failed to establish the want of such capacity by a preponderance of proof the verdict should sustain the will. On the request of the caveators the jury were told, if they found the testator at tire time of the execution of the will did not have sufficient mental capacity to know the extent and value of his property, and the number and names of the parties who were the natural objects of his bounty, and their deserts, with reference to their conduct and treatment towards him, and their respective necessity and interest; and did not have sufficient active memory to retain all these facts in his mind long enough to have his will prepared and executed, then they should find against the will.

The trial justice very properly explained to the jury that the instructions last mentioned, though taken from text books of authority and adopted by many courts, were not to be understood as requiring ability upon the part of the testator to recall the names of all his relatives.

Upon this point of the instruction, as thus explained by the court, besides the testimony of witnesses for the eaveators, very positive testimony tending to show his lack of appreciation of the extent and value of the property he was about to dispose of, was given by Fullerton the draftsman of the will, and by Eichhorn, the executor. The effect of t'heir testimony was to show that the testator declared, when giving instructions to Fullerton, that he desired to dispose in his will of $50,000 of notes and obligations and other personalty, and that he would make some other disposition of his real estate; while at his death shortly afterward the entire personal estate was found to amount only to $35,000. Eichhorn explains this deficiency by the suggestion that Hoover in the intervening time had given away a note for $2,000, and a parcel of land to John Humphreys, and another parcel of land to Eichhorn himself. The land first mentioned, however, had been conveyed to Humphreys before the will was made.

If this explanation be taken as correct it would appear the testator evidently possessed little more than $35,000 of personalty when he made his will; and hence overvalued his property of that description by $15,000 ; a sum amounting to nearly one-half of all his personal estate. If, on the other hand, he intended to include his real estate in the $50,000, notwithstanding his statement to Fullerton, then it appears he proceeded the next day to revoke and destroy these testamentary dispositions by conveying the remaining parcel of his real estate to Eichhorn, as if unaware he had already disposed of it to him by his will. In either view of this matter the jury might reasonably have concluded under the instructions they had received from the court, that a man of Hoover’s age, who was so forgetful and confused as to the amount and nature of his property, to so important an extent, must have been incompetent to dispose of it by will.

In the same direction is the testimony with reference to the Kibbey agreement, as it was called, respecting a valuable property near the residence of John Hoover. •

In 1867, Kibbey and Hoover had entered into a contract by which, in consideration of Hoover-’s relinquishment of all interest in that property, Kibbey consented to pay Hoover an annuity of $3,200 per annum. The requisite-papers were executed, and Hoover had regularly received the annuity semi-annually since that time. It is shown, however, by the testimony of several witnesses that Hoover, about the time of making the will, and afterwards, and up-to a few weeks before his death, was possessed of the idea that he was still the owner of that property. Thomas Kirby, a witness for the caveatee, testified that in September, 1887, Hoover offered to sell him the property on ten years’ credit wdth 3 per cent, interest. That Hoover had perfectly comprehended the agreement years before is-abundantly shown, and up to that 'time he had received upwards of $60,000 on the annuity, yet Fullerton testifies that the next year, in September, 1888, when he went wdth Eichhorn to see Hoover to receive instructions as to the will, Hoover consulted him about this property and claimed he was entitled to a conveyance of it. Fullerton says he gave him the positive opinion that he had no such rights, yet Father McGfurk testified that early in the month of March, in which he died, Hoover consulted him on the subject and procured him to make a statement of his payments upon the property, claiming he had paid for it and owned it. At his request McG-urk took the statement to Mr. Morris, who, in March, 1889, gave Hoover two legal opinions that he had no rights in the property. Hoover made a similar statement to Father Walter; and Ceas proves that in the fall before he died he was at the Title Company’s office several times procuring searches to be made on the subject, evidently believing the property still belonged to him in fee. It was also, testified that Hoover had endeavored to sell the Granby Farm after he had conveyed it to Eichhorn on the 21st of September, 1888.

It is true the correctness of such of this testimony as was given by the witnesses of the caveators was disputed, by the caveatees, but nevertheless the j ury had the right to believe the statement on behalf of the caveators, and might, reasonably have concluded from this testimony, supported as it was by that of the witnesses of the caveatees, that the testator when he made the will, in the words of the 4th instruction for the caveators, “ did not have sufficient mental capacity to know the extent and value of his property ; ”' or in the language of the 5th instruction, that he did not. “ then recollect the property he meant to dispose of, and did not understand the manner in which he disposed of it.”

The caveatees produced a number of witnesses whose testimony tended to sustain their contention that the testator was of sound and disposing mind at.the time of executing the will; but these were opposed by a nearly equal number whose testimony tended to sustain the opposite contention. The objection of interest can be equally applied to each group of witnesses; and whatever others, who did not see the witnesses or observe their demeanor, might conclude as to the value of the testimony, the jury who heard it all had the right to form their own opinion as-to its reliability and probative force, and to draw their own conclusions as to whether the caveators had proved by a preponderance of evidence that the testator was not legally competent to make a last will and testament when he signed the paper writing produced in evidence.

The other general .inquiry before the jury was whether the alleged bill was procured by undue influence exercised and practiced upon John Hoover, or by fraud, misrepresentation, or artifice of Eichhorn, or of others acting of their own volition or under the direction of Eichhorn.

■ The testimony adduced upon this issue covered a very large range, and evidence was admitted in behalf of the contestants as to a great variety of instances of the alleged undue influence. - To notice them,all here, even cursorily, would be to argue the case anew.

We content ourselves with saying that, in our opinion, there is evidence, derived as well from the witnesses of the caveatees as from those of the caveators, from which the jury might well have found for the caveators on this issue; and which might properly have justified the trial justice in maintaining their verdict.

The same remark may be made with regard to many of the incidental points introduced into the controversy bearing upon the issues. With respect to each of these there was competent evidence adduced by the caveators to sustain their contention, and the jury had the right to weigh their evidence against that offered by the caveatees, and to render their verdict according to their honest belief as to the weight of the testimony. The question to be decided by the jury as to the competency of the testator to make a will, involved the inquiry whether he was of sufficient mental soundness to change any previously existing purpose he might have formed, if he should subsequently desire to do so. The mere fact that a will is in the direction of a preconceived purpose should have no weight, unless the testator was, a,t the time of executing the will, of sound and disposing mind; otherwise the will of an evident imbecile or madman must stand, notwithstanding it appeared, that although dictated or even written by himself when entirely competent, it had not been executed until incompetency had developed itself.

We do not mean to say that the evidence shows Hoover had really entertained, for a long time, the persistent and settled intention to devise and bequeath his estate for religious or charitable purposes, as was claimed by the caveatees. Such an intention seems inconsistent with other repeated declarations as to his purposes; as that he intended to be his own executor; that he meant to dispose of his property during his own life, or as he expressed it, “ while he was on the hoof;” that he really gave some $29,000 to John Humphreys, the husband of one of his nieces; that he had at times spoken with displeasure of the priests; that he left by his will a large and indefinite legacy to Catharine Conley, who was known to have been the mistress of a wretched old man; that the large residuum of the estate under the will was- bequeathed to Eichhorn and his daugh ters; that from time to time he parted with large portions of his property to laymen on long loans, some at 3 per cent, interest, and other portions on similar loans without interest; and that he gave the remainder of the Granby Farm to Eichhorn the day after the execution of the will which would otherwise have disposed of it.

We mean only to say that this phase of the inquiry, like the others, was properly submitted to the jury for their decision upon proof that would justify them in finding for the caveators, if they believed their evidence in preference to that of the other side.

This view of the subject was expressed by this court in Stewart vs. Elliott, 2 Mackey, 316, where a motion was argued here for a new trial after a verdict below against the validity of the will of Elliott, propounded by the executor. The issues were of the same character as those presented here, and it was vigorously insisted that the verdict was the result of prejudice and was rendered upon insufficient evidence, which is the equivalent of the contention in the present case. The court below overruled the motion for a new trial, and the General Term, after expressing its approbation of this ruling, said: “ In arriving at this conclusion we have been obliged to bear in mind the well settled canons of law on the subject; that the verdict must be presumed to be right and should be sustained, if the evidence by fair construction will warrant the finding; that the fact that the trial judge is satisfied with the verdict is a circumstance entitled to great weight; that in any case the court must be satisfied there are strong probable grounds to suppose the verdict was not according to the justice and truth of the case before it will grant a new trial; and' that it will not be granted where the court -can see that real and-substantial justice has been done; that where the verdict may have been reasonably influenced by questions fairly presented as to the credibility of the witnesses, the decision of the jury should be disturbed with great caution, if at all; and that our entire system of jurisprudence is based upon the idiomatic principle ‘ad quosstiorem fabti, non respondent judices.’ ”

We have adverted to the fact that this is the second verdict rendered setting aside this will.

Originally the courts declined to grant a new trial after a second verdict for the same party; but is now' settled that it may be granted if the reasons are sufficient, depending upon the circumstances of the case; although in such cases a new trial is seldom awarded, certainly with much hesitation. 3 Blacks. Comm., 387.

The Supreme Court, in Louisville & Nashville Railroad Co. vs. Woodson, 134 U. S., 623, asserts as a principle, that “ Courts rarely grant a new trial after two verdicts upon the facts in favor of the same party, except for error of law.” The rule ivould of course be different where the jury should find a second verdict against the instructions of the court, or should continue to render oppressive damages against a defendant. In 3 Graham and Waterman on New Trials, 1366, it is said: “It must be admitted, after two or more juries have arrived at the same result, a very strong presumption arises in favor of the verdict. The court will be less likely to grant a new trial after a second verdict where the judge who presided at the trial is satisfied with it.” Id., 1367.

Indeed, where the second verdict appears to have turned upon the mere weight of the evidence, and the trial justice has refused to disturb it, it seems to be generally considered' by the appellate court that no good purpose is likely to be served by sending the case back for a third hearing; and they refuse to continue the apparently hopeless litigation unless the second verdict appears so plainly against .the •weight of the evidence as to creaté a strong presumption of injustice. .

In Foster vs. Alviz, 3 Bingham’s N. C., 896, the trial court granted a new trial. The second verdict was for the same party. A motion before four judges of the Common Pleas to award a third trial was overruled, Vaughan dissenting. The court relied upon Foster vs. Steele, Id., 892, in which the facts were similar. In the latter case Tindal and Park, J. J., said:

“ The verdict should not be disturbed. If a new trial should be granted, and a third verdict be given for the plaintiff, the same arguments might he urged for granting a fourth trial; and so superceding the functions of the jury, and leading to endless litigation. Although the verdict might not be altogether satisfactory, the court ought not, unless in a case- of perverseness, to disregard the opinion of twenty-four jurors, highly conversant with the matter in dispute.”

In the case before us, there is no ground whatever appearing in the record for supposing a third jury would decide differently from its predecessors; and, such evidently was the opinion of the trial justice.

There is a marked difference in the action of appellate courts in cases where the appeal is from a ruling of the trial judge setting aside a verdict and granting a new trial; and in cases where the trial judge has refused to interfere with the second verdict. To the former class belong several of the cases cited by the appellants: Taylor vs. RR. Co., 79 Ga., 330; Davis vs. Roper, 33 Eng. L. & E., 511; Means vs. Means, 6 Rich., S. C., Law, 1. In 79 Georgia, the appellate court, though approving of the action of the trial judge in granting a new trial, declared that “ after one grant of a new trial, a subsequent grant on account of a supposed conflict between the verdict and the evidence will be closely scrutinized by the appellate court to see that the discretion of the court has been justly and wisely exercised in view of the peculiar issues and facts of the case, and having due-regard to the general consideration of the fitness of juries to ascertain facts, and of the necessity that there must be some end of litigation.”

In a case of the second description, Christian vs. Westbrook, 75 Ga., 853, where the lower court had refused to set aside a second verdict for the plaintiff, the court of appeals declined to interfere with this exercise of his discretion by the trial judge; although it pronounced the evidence introduced to establish the main ground relied on for a recovery to be “ rather weak.”

In announcing our conclusion that the verdict should not be disturbed, we are not to be understood as adopting-the contention of the caveators, that the testimony establishes the charges of active interference by the parties against whom such evidence was directed. We content ourselves with declaring, as we did in Johnson vs. Railroad,. 6 Mackey, 244, that we see nothing in the record to induce us to say there was error on the part of the trial justice in refusing to disturb the verdict of the jury.

The rulings of the Circuit Court are affirmed.  