
    Aaron Cordrey and others v. Betsey Cordrey and another.
    The formal execution of a will being established, the presumption of law is in favor of the capacity of the testator to make it.
    Testable capacity in a testator amounts to nothing more than a knowledge of what he was about and how he was disposing of his property and the purpose so to do it, when he made the will. The simple question therefore is, did the testator know and understand what he was about when he made the will; that he had a family, and the relation in which he stood to it, and that he had property, and what it was, and a will, or desire to devise it as disposed of; if so, then it is his will. What degree of influence will vitiate a will.
    Issue of devisavit vel non, ordered by the Register of Sussex County, to try the question whether the paper writing purporting to be the last will and testament of Josiah Cordrey, deceased, is, or is not, the last will and testament of Josiah Cordrey, deceased.
    The will in question bore date September 18th, 1850, and the deceased left to survive him a widow and five children, viz., Betsey Cordrey, and Aaron, "William, John and Raney Cordrey, and Grace the wife of Daniel Hastings. To William, Raney and Grace he bequeathed a legacy of one hundred dollars each, and to Aaron fifty dollars. All the rest and residue of his estate, real and personal, he devised to his wife, Betsey Cordrey, for life, and after her death, to his son John Cordrey in fee.
    Cyrus C. Windsor was produced as a witness by the propounders of the will, and testified that he wrote it for Josiah Cordrey, by his request, as his last will and testament, at his office in Laurel, and that he came alone to his office for that purpose, but could not say who came to town with him on that occasion. He had several" times before that told him that he wanted him to do some writing for him. The will was read to him after it was written, and he approved it and signed and executed it, and the witness, together with David R. Wolfe and John Moore, signed it in his presence as subscribing witnesses. He was at that time of a sound and disposing mind and memory. On cross-examination the witness stated that he after-wards drew another will for him at his office by his request, but he never executed it. He told John Cordrey, one day, he had better bring the old man down to execute it, as it was better for him than the other will, but the old man never' came. He was sixty-five or seventy years of age, and was intemperate in his habits, and he never knew him to transact any business himself of importance. His son John lived upon and carried on the old man’s farm for him, and attended to most of his business. He (the witness) asked John to pay him for writing the will, which he did about two years afterwards, in the old man’s lifetime. His reason for asking John to do this was because the old man seldom came to town, and John generally attended to his business for him. The reason the old man assigned to him for making the will as he did, was because John had been a good and faithful son to him.
    David It. Wolfe testified, that he signed the will as a subscribing witness at the request and in the presence of the testator, and heard him say that it was his last will and testament. Witness could not say that he ever had much mind, but he thought he had as much then as he h^-d ever had since he knew him. If he had been drinking any at that time he- did not discover it. He had known him twenty-five years, but had never known him to buy or sell anything, or to transact any business. John Moore testified, that he also signed the will as a subscribing witness i,n the .presence of the testator. He had as much mind then as he ever had, he thought. He never knew him, to transact any business. When he first knew him, nearly thirty years ago, his son Elijah attended to hi's farm, and his wife or some one else was generally with him when any business was to be done from home. He was always-a weak-minded man, but he could not say whether he had sufficient strength of mihd to make a will, because he did not know how much strength of mind the law required to make a will. ■ He once went to his house to trade for a horse, and he traded with his wife and his son John. He had nothing to do with it or to say about it, and paid no attention to it.
    The will was then offered in evidence and read to the jury, and the parties setting it up here rested.
    
      W. Saulsbury, for the caveators:
    We shall prove that the -old man Josiah Cordrey never had sufficient mind to make a will, and never had sufficient mental capacity to transact any bxisiness, and was never permitted by his family to attempt such a thing for that reason. We shall also prove that he was entirely in the hands and under the control of his son John for many years before his death, and was worth eight or ten thousand dollars, all of which, with the' exception of three hundred and fifty dollars bequeathed to his other four children, is devised to his widow for life, and after her decease to him in fee simple.
    The counsel then proceeded and called several witnesses, who testified that the testator was always possessed of a very weak mind, and never transacted any business himself for many years before his death, either on. his farm or away from home. They also proved that insanity had existed in his family, and that his mother was insane for several years before her decease; that the testator was intemperate in his habits, and had still further enfeebled and impaired a mind naturally weak by frequent and excessive indulgence in the use of intoxicating liquors, and that his children had all been dutiful, affectionate, and kind to him ; but they had all married and left him, except his son John, who had continued with him, by whose industry, care, and diligence, and that of his wife, he had accumulated a considerable portion of his property.
    For the caveators it was argued that the evidence clearly indicated that the testator was a man of extreme weakness and imbecility of mind, and that to make a valid will, the testator must be shown to possess a sound and disposing mind and memory, and to be able to clearly comprehend and fully understand what he is doing when-he executes it; it is not sufficient that he can answer familiar ques-tians intelligently and properly, or is able to converse rationally on ordinary matters. 1 Jarm. on Wills, 50; Duffield v. Morris, 2 Harr. 375.
    Upon the other side it was contended, that the will had not been successfully impeached either upon the ground of imbecility of mind or undue influence. As to the degree of capacity necessary to make a valid will, 1 Wms. on Exrs. 16, 36; 2 Harr. 379 ; 1 Jarm. on Wills, 29, 53; Shelf. on Lunacy, 39, 275; 4 Mass. 593; and 1 Wms. on Exrs. 21, were cited. The property of a person might be committed by a court of chancery to a trustee, on the ground of the incapacity of the individual to manage and take care of his affairs, and yet a will of such a person made in that condition of mind may be sustained as a valid will. 26 Wend. 255; 1 Jarm. on Wills, 53; 21 Vern. 63. And if the jury should doubt as to the ability of the testator to make a will, the presumption of law was in favor of sanity and capacity, and therefore, they should find in favor of the validity of the will. 6 Greenl. Cruise, 14; 1 Jarm. on Wills, 31; 7 Pick. 94.
   The Court,

Harrington, Ch. J.,

charged the jury : The question presented in this case has been frequently before this Court, and we have therefore but little more to say upon it than we have often had occasion heretofore to say in regard to it. The formal execution of the will being established in accordance with the provisions of the statute on the subject, the presumption of law is in favor of the capacity of the testator to make the will. But to speak more specifically as to the degree of capacity required for this pui'pose, when it has been assailed by rebutting testimony, the Court remarked in the case of Chandler and others v. Ferris, 1 Harr. 464, “that if the testator was capable of exercising thought, judgment, and reflection; if he knew what he was about, and had memory and judgment, his will could not be invalidated on the ground of insanity.” In the case of Duffield v. Morris’s Exr., 2 Harr. 379, the Court said, “ A perfect capacity is usually tested by this, that the individual talks and discourses ratioilally and sensibly, and is fully capable of any rational act requiring thought, judgment, and reflection. This is the standard of a perfect capacity. But the question is not how well a man can talk or reason, or how much judgment he can display, or with how much propriety and sense he can act: it is only, has he mind and reason, can he talk rationally and sensibly, or has he thought, judgment, and reflection ? Weakness of mind may exist in many different degrees without making a man intestable. Courts will not measure the extent of people’s understandings or capacities. If a man be legally compos mentis, be he wise or unwise, he is the disposer of his own property, and his will stands as the reason for his actions.” And in a still later case, Sutton v. Sutton et al., 5 Harr. 461, on this point the Court observed, The objections in this case aré, that the testator from age and weakness was at the time a man of doubtful and fluctuating capacity, operated upon by improper influences to make changes in his will, contrary to his real wishes and at variance with his known affections. Testable capacity in such a person as John Sutton, the testator, will amount to nothing more than a knowledge of what he was about, and how he was disposing of his property, and the purpose so to do it. And as to undue influence over a man of testable capacity, it must be such as to take away his free will; such as he is too weak to resist. Mere solicitation will not be sufficient to vitiate a will made by a person having a knowledge of what he is doing and intending to do it, though his act maybe brought about by solicitation, or that kind of influence which a "disposition to gratify another may produce.” The simple question in this case therefore is, did the testator know and understand what he was about when he made and.executed this instrument purporting to be his will; that he had a family, and the relatians in which he stood to it, and that he had property, and what it was, and had a will, or desire to bequeath and devise it as it is disposed of in this instrument? If soj then so far as this question is concerned, it ought to be found to be his will; but if otherwise, it should not.

McFee and W. Saulsbury, for the caveators.

Moore and C. S. Layton, for the devisees.

Verdict in favor of the will.  