
    
      Benjamin Jones and others vs. David Harris.
    
    I:;sue, on appeal from the Ordinary, touching the mental competency of a testator at the time he made his will. The will was executed while the testator was sick,but he survived his illness four years, and during that time, in some conversations, recognized the will. There were three subscribing witnesses — two of whom, and the physician who attended the testator, thought him competent; the other subscribing witness thought him incompetent. The Ordinary had established the will, and the presiding Judge thought it had been well executed: the jury, however, thought otherwise and set it aside. On appeal a new trial was ordered.
    
      Before Butler, J. at Edgefield, July, extra Term, 1845.
    This was a suggestion, on appeal from the Ordinary, to try the validity of the last will and testament of Moses Harris, deceased. The Ordinary had sustained the will. The grounds of objection were — 1st. That the testator never signed the will or heard it read — 2d. That he was non compos mentis.
    
    The report of his Honor, the presiding Judge, is as follows.
    
      “Testimony. — Henry C. Turner, a subscribing witness. Knew Moses Harris in his life time, and saw him execute the paper purporting to be his last will, dated Aug. llth 1840. Saw him sign it, and witness signed his name as an attesting witness, with William A. Turner and John R. Weaver, in the presence of the testator. Witness was sent for on the 10th, but did not know for what; went, and was there told it was to witness the will. William A. Turner, Daniel Holland and Simeon Mathews were there. Witness went there before twelve o’clock, and remained until evening. Holland was writing what was understood to be the will. After it was finished, Holland talked to testator, and declined then to have it executed, saying that testator was not in a situation to sign. . Holland declined reading the paper to testator, and requested ns to meet next morning, when the fever was off. Parties went home to meet there next morning.
    Next morning, the witness, William A. Turner, John R. Weaver and Simeon Mathis, met at the residence of the testator, and Wilson Crane was also there. These were all except the family. Witness got there about 8 o’clock, and the witness, Weaver, was copying off the will, drafted by Holland the day before,. After he had finished writing, they went to. where testator was lying in bed. The will was then read to the testator, by Weaver, in presence of witness, William A. Turner and S. Mathis. Wilson Crane also may have been present. Testator was raised up in bed, and supported in his bed by one of the servants, while the will was read. There was another servant in the room. Will was read to testator, clause by clause, by Weaver, and after reading it, Weaver asked testator if that was his will. The testator did not speak, but signified his assent by nodding his head. The pen was handed to the testator, who took it and made an effort to sign. His hand trembled very badly, and Weaver assisted him in signing his name.
    The witnesses then signed their names in the presence , of the testator.
    Testator was then asked by Weaver, who should keep the will. Testator looked around for a while, then looked at witness’ brother, and said, Turner. Weaver asked, which Turner? Testator then looked at William A. Turner, and nodded to him.
    The will was then folded up, and, witness thinks,, sealed, and handed to William A. Turner.
    Testator was then in bed sick. Witness thought he was in his senses, and knew what he did. Testator was old and weak, but witness discovered nothing to make him suspect that he was not in his senses. Testator recovered from this illness and went about and died last summer, July 11th 1844. Will was proved on the 12th. Cannot say who requested Weaver to read the will. After reading a clause, Weaver would pause — then read again. When it was finished, Weaver asked if it was his will. When Weaver asked which Turner, testator nodded, and witness thinks pointed to William A. Turner. Weaver was copying the will when witness arrived there that morning. The will was executed before 12 o’clock. Did not stay long after the will was executed. Testator put his hand to the paper, but it trembled and he could not write. Weaver took hold of the pen and assisted him.
    Witness is certain that testator put the pen to the paper. Testator commenced to write, but cannot say how much of his name he wrote. Does not think he could have written his name without assistance.
    
      William A. Turner was one of the subscribing witnesses. Saw testator sign in the presence of the other witnesses. He signed the will with the assistance of Weaver. The witnesses signed in the presence of the testator. Testator said but few words, and cannot say whether testator requested him to sign. Witness had been sent for the day before to witness a paper. Went, and saw Holland writing the will; finished after dinner ; by that time the fever of testator rose, and he was unable to sign the paper. It was understood that the parties should return next morning to witness the will. Witness went after breakfast, and found Weaver copying off. the paper drafted by Holland. When it was finished we went into the room where testator was lying. Testator was helped up, and sat on the bed, with his feet hanging off. The will was then read by Weaver. Testator said nothing, but nodded his head while it was reading; and when it was finished Weaver then offered the pen, which testator did not take at first — perhaps not understanding at first, being a little hard of hearing — then took the pen, but his hand trembled so much that he could not hold the pen on the paper. Weaver took testator’s hand and guided it, so as to enable him to make his signature. Witnesses then all signed their names in the room. Testator may have been asked if it was his will. After that, testator was asked, two or three times, who should keep the will. He appeared to be on a stand, and looked round, and then said to the witness, “ I want you.” Weaver said, do you want him to keep it 1 and testator nodded his head. The will was then wrapped up in a sheet of paper, and handed to witness, who kept it till the death of testator. The will was folded up but not sealed. There was no seal on it while he kept it. Testator recovered, walked about, and knew witness had the will. Testator frequently spoke to the witness of being in debt. Witness replied that he could pay by the sale of property, and testator would reply that he had given his negroes oif in families, and did not wish to separate them. He knew that witness had the will. Said he had a notion of altering the will, but told witness to keep it, and let no one have it; and if he, the testator, sent for it, not to let any one have it, but bring it himself. Witness had no reason to think the testator was not in his mind. Testator looked sick, but witness thought he knew what he was doing. Spoke but little, and generally nodded. Was a man of but few words, and went about but little. This was in 1840. The testator recovered, and went about his business as usual, and died in July, 1844. Testator was a very old man — he said between ninety and a hundred years old.
    Witness is certain that the will was read by Weaver. Cannot say who requested the reading. One of the ne-groes may have held testator up while the will was read. Testator did not wear specs. Testator held the pen after it was presented and put into his hand. Did not write any of his name until Weaver took hold of the pen. No one requested Weaver to take hold of the pen. Witness was a near neighbor.
    
      John R. Weaver was a subscribing witness, and subscribed with the other two in the presence of the testator, and the testator subscribed in his presence, and in the presence of the other two witnesses. Witness went, in the morning of the 11th Aug. 1840, to the residence of the testator, and copied the will from one drawn by D. Holland, with an alteration as to one tract of land, on which Hezekiah Harris, a son of testator, lived- — by specifying that tract as a portion of property directed to be sold.
    The paper drawn by Holland, and from which Weaver copied, was here produced and proved. It was similar in all respects, except the alteration mentioned ill the Iasi clause.
    Moody Harris sent for witness to alter the will, as to the above tract of land, saying that it had been left out in the one prepared by Holland. Witness copied and made the alteration upon the suggestion of Moody, without conferring with the testator. After it was copied, witness carried it into the room where the testator lay. Simeon Mathis and the two Turners went with him. Testator Was raised up, and witness said, here is your will. Said so more than once. Does not recollect reading the will, but offered the pen to testator to write, and he was unable to hold or guide it. Witness held the pen in testator’s hand, and wrote the name himself. Witness guided the pen between the forefinger and thumb of testator. The hand was tremulous. When the will was signed, the witnesses subscribed their names; and Mathis said, ask what shall be done with the will. Testator made no reply. Mathis then said, shall it be given to Ar'vis Turner ? Witness asked more than once, and testator nodded assent; and the will was delivered to Arvis Turner. Witness does not recollect of folding will up or endorsing it. Does not think it was read — -if it was witness has no recollection of it. Witness was not well acquainted with testator; had but little acquaintance with him. Does not think the testator was conscious of what he was doing when he signed the paper. Four or five months afterwards, testator said he did not know witness had written his will, or was there when it was executed. Witness did not hear testator speak a word, and did not think him in his mind when the will was signed. He looked vacant and unconscious.
    Testator was an old man, and feeble from sickness, but dont know that he had fever then. Witness never told S. Mathis that it was a good will, and that testator was in his senses. It was about 11 o’clock, A. M. that the will was executed. There were spirits there that morning, and witness may have drank some. Cannot say he did. At that time had drunk but little, and was not in the habit then of drinking. Witness called and told testator that he had copied the will from Holland’s draft, and made an alteration. He did not seem to be conscious of it. Witness called to tell the testator what he would swear if called on — that he was not in his senses. Testator said that he did not Jmow that, witness had been there. Witness assured him that he could not prove the will as one of the witnesses. Witness advised testator to make a new will. He replied he intended to do so, and make some alteration. Then he appeared childish, and not entirely rational.
    Witness told Wm. McDaniel, the day after the will was executed, that he did not think the will good ; and told the same to David Harris, Hezekiah Harris and several others. Thought he told S. Mathis, but might not have done so.
    Witness took instruction from Moody, as to the alteration of the will. Testator did not speak a word. Witness was then a young man, and did not know that it was necessary that the will should be read, and had never seen a will executed. Has no recollection of reading the will. Witness thought the testator would die, and signed as a witness to comply with the desire of those present, that there should be a will. Thinks testator never recovered from the effects of his sickness. Witness had a second conversation with the testator, at instance of Moody. He spoke favorably of David, and appeared displeased with Moody. In the second conversation, testator was not conscious of having had the first. Went the second time to have a conversation about negro Jack. The testator spoke of his ne-groes, and said that David Harris would take care of them.
    
      Daniel Holland knew testator, and on the 11th Aug. 1840, drew a will for him. On the morning of that day David Harris called at witness’ house, and said his father was worse, and that his father requested him, witness, to be sent for to draw his will, if he got worse. And David Harris asked witness to ride up and see testator. Witness went. Testator was glad to see him. Said that he was sick, but was better in the mornings; I am sorry that you are put to this unnecessary trouble, as you will not have pay. You are sent for to write my will, and it is Moody’s work. I have just given him, the other day, six negroes, in writing signed and delivered, and he shall have no more of my negroes, and I will make no will now — and was excited when he said it. Witness then stated how he was induced to come — that Moody had nothing to do with it. Testator then seemed reconciled. Dr. Nicholson came in about the time. Witness offered to go, and testator said no, stay till dinner. Witness made a motion to go, and testator said no, I would rather you would stay — I have thought about it, and I had rather you would stay and write my will. I am sick, and I may get so I cannot make a will. Witness consented to do so, and was referred to Moody for pen and paper. Witness sat down on a chair by testator, and took down the directions of testator on his knee, Dr. Nicholson being present. Witness then withdrew to the piazza, and begun to write. the will. Thought then about witnesses — went in and told the testator, who requested witness to tell Moody to send for some neighbors, who were requested to come at two o’clock. They sent word that they would come. Testator became restless' — left the room in which he was lying, and being steadied by a negro, went to a bed in a room at the end of the piazza. After he got there, he would' call to witness and talk about‘his will and property. After awhile the testator lay still. The witnesses came, and witness having finished the will, went into the room and found the testator had fever. Witness conversed with him, and found that his mind was flighty, from the effects of fever. Witness advised him not to sign his will then. Testator was anxious to do it, but yielded to the suggestion of witness not to make his will then. The witnesses were requested to come back next morning and attest the will. He told the witnesses to ascertain whether he was in his proper mind — to sign it in his presence, and to read the will or have it read to him. Witness requested the two Turners and Mathis to come as witnesses, and not to sign if testator was out of his mind. When witness took instructions, he thought testator in his right mind, and capable of making a will. The will was drawn in conformity to these instructions, and corresponded with several wills drawn by witness for testator before, and previous designs, except as to Jack being sold, or being given to his son Benjamin. He said that he wanted his son David to pay $500 to some one, but had not before settled down to whom. In this will the $500 are given to Benjamin. He said he had given his Pixley children as much as he intended, and wanted it expressed that he would give Moody no more negro property.
    In May, 1842, witness saw testator again, and traded for a tract of land, and received a deed for it. In latter years, testator could not superintend the actual management of his farm.
    
      Dr. John Nicholson attended testator in his illness, when the will was executed. Was called in on the 7th August— found him in his piazza or in the yard. Testator had no fever then. Saw him next on the 9th. His attacks had been more violent, and he was in bed. He liad chills and fever. Saw him on the day while Holland was there, the 11th. Saw him the next day, the day the will was signed. Witness got there about 12 o’clock, and testator had tome fever. The fever continued to increase until the 14th, when he got into a comatose state. Till that time, testator had his proper mind, when not under the influence of fever. The fever would intermit, and in the mornings his fever would be off. A chill would come on about 11 o’clock, succeeded by a fever in the evening, and he would sweat it off during the night. The violence of his attacks continued to increase till stupor came on.
    His stupor came on on the 14th, and after that time he was incapable of doing business. Before that, was capable of doing business in the mornings. While Holland was there testator was in his senses. When in a comatose state he was disinclined to talk, but could be roused. Excitement of mental exercise would disorder his mind. On the 12th he got there about 12 o’clock. The fever was rising. The will had been executed, and the witneses had left there.
    
      Simeon Mathis was present when the will was executed. The two Turners and Weaver were there. It was about 7 or 8 o’clock when they met there, and two hours after, the will was signed. Witness got there first, and Weaver came next and copied the will. Then it was carried to the testator by Weaver, who read the will. Testator said it suited him very well. Weaver handed pen to the testator to sign, and he took the pen, and his hand, trembled so that he could not write. Moody said, take hold of the old man’s hand and steady it; and Weaver took it and wrote down the name. The witnesses then subscribed their names. Moody or Weaver asked who should keep the will. Testator pointed out Arvis Turner to keep it, and Arvis Turner took it — and testator said; keep it till I call for it, and it was taken. Witness thought him in his senses at the time. The testator was sitting oh the side of the bed with his feet hanging out. Moody requested the will to be written over.
    After testator recovered from his sickness, witness asked him where his will was, and testator said it was at Ar-vis Turner’s. Spoke of his negroes, and said he was satisfied with the will. He charged witness to see that all should he executed, after his death — to see that it was all carried on. Testator spoke to witness frequently after-wards about the will.
    Witness talked to testator before Weaver came, about his will, as Holland drew it. He said he was satisfied. Did not hear him say any thing about alteration to be n^ade by Weaver. He was walking about the piazza, and witness conversed with him. There was no drinking until after the will was drawn and executed. Weaver was sent for to add in a piece of land, on which Hezekiah Harris lived. That was what the will was copied for. Does not know where testator was when Weaver came. Weaver remarked after the will was executed, that that was as good a will as any man could make.
    
      John Berry. — Witness conversed with testator about his will in 1842. Witness said, you are an old man, and ought to make a will. Testator said he had made a will, and said he had given David a family of negroes, to wit: Harry and his family. To Hezekiah he had also given a family of negroes, Daniel and his family ; and to Moody he had given another family, Emeline and children, by deed. And also said that he had given Benjamin one-fourth of the remainder. Did not say that David was to 
      pay any thing, nor did he mention where his will was. Has been living near Moses Harris, the testator, three years.
    
      John C. Allen was acquainted with testator. Saw him in the first week of August, 1840, whilst he was taking the census of the District. Went to take the members of his family. Testator appeared in ordinary health, and competent to attend to business. In the summer or fall of 1841, Moody Harris applied to the witness to sell him a family of negroes, and said that his father desired witness to purchase. Witness went to see the testator about the negroes. Testator pointed them out. Spoke of the value of each. Said he had given them to Moody, and did not want them separated. He thought Moody imprudent, and that they would be sold. Testator also said that he had given his other negroes, in families, to his children. At that time he was competent to do business.
    The executors here closed.
    
      William H. Williams lived near testator in 1840, and knew him from 1839. At times witness thought him in his right mind, and at other times he thought he was not. Thought so while he was passing occasionally by his house. At times testator would ask witness who he was. At other times he would not know him.
    
      William McDaniel remembers a conversation with John R. Weaver about the will. Weaver said he did not think the old man knew what he was doing when he signed the will, and stated the circumstances under which the will was signed by the testator.
    
      John Wright says that he lives three miles from H. C. Turner — that H. C. Turner’s character is not good, and he would not believe him on his oath. Has entertained this opinion of him for some time. They had a difference last summer, but there is no misunderstanding between them now. Witness has worked for and traded with Turner. Turner traded fairly, and people generally believed him.
    
      John F. Martin. — Knew H. C. Turner. His character is not good, and witness thinks him unworthy of credit. Witness lives about four miles from him. Witness once had a difficulty with Turner and his brother. Never heard Turner’s character for truth questioned. Turner’s accounts as a tailor were correct, so far as he knew.
    
      Benjamin Raiburn knows H. C. Turner^ — gives him a bad character. Would not believe him on his-oath. Has traded with Turner. Turner sued him — got' judgment, but has not got hisi money. Witness confessed judgment to Mr. Martin. Once had a quarrel with Turner, and has had nothing to do with him since. He brought up a false account against witness. Has heard persons question his' veracity, to-wit: Jacob Wright and his father.
    
      Jacob Wright is acquainted with H. 0. Turner. His general character is not good. Witness thinks it very bad, and from his general reputation witness would doubt his oath. Has had no quarrel with Turner, and has traded with him, in his store.
    
      William Rabitrn is acquainted with H. C. Turner. His reputation is not good, and from his general character witness would not believe him on oath, t
    
      Henry Raburn is acquainted with H. C. Turner. His character is not good, and witness would not believe him where he' was interested: Witness would not like him to swear against him. Witness has traded with him' in his, Turner’s, store.
    
      Willis Rotten knows H. C. Turner. His character is bad — would not believe him upon his oath, if he was interested. If he was not interested could not say. Never heard his character for truth questioned. He traded and dealt with Turner, whose accounts were all rights
    
      Josiah Howell. — H. C. Turner’s character is not good: would not like him to swear against him. Dealt with him and his accounts were fair. Never heard his character for truth questioned, and witness and Turner once quarrelled, N L. Grijjin. — Hezekiah Harris has. been living on the land he now lives on, witness thinks, for about twenty-two years. ■
    ,In Reply.
    
      Daniel Holland. — Knows the general character of H. C. Turner, and would not question his veracity.. In other' respects his character is bad. Has had dealings with Turner and always found him correct.
    
      Maj. Allen. — Would believe Turner on oath, and that is the general opinion of him. His character is bad in other respects.
    
      Thomas Harvey. — Never heard that Turner had a bad character for truth, and witness would believe him on his oath.
    This case ivas treated and argued throughout as involving issues of fact for the judgment of the jury. In summing up the evidence and making such comments as the case seemed to require, I said that the testator must have had the presence of his bodily and mental faculties at the time the paper was signed, to make its execution valid as a will — and that if he was then non compos, no subsequent > declarations, however often repeated, could make the will good — but I said that such declarations might be resorted to, to indicate the state of mind at the time of execution. I was myself under the impression that the paper had been well executed, but the jury thought otherwise, and set the will aside.”
    The executors appealed, and now moved this court for a new trial, on the following grounds:
    1. Because the testimony established beyond doubt, that the testator at the time he executed the paper was in his proper mind and memory, and fully competent and capable to make a will.
    2. That the testimony of one subscribing witness only, who knew the testator but slightly, and was wholly unknown by the testator, and merely giving it as his opinion, that testator was non compos, ought not to prevail and overturn a will, against the testimony of all the other witnesses, and against the acts and declarations of the testator himself, long after he recovered, that that paper was his will.
    3. That his Honor unintentionally misled the jury in stating to them, that the conversations and declarations had and made by the testator, long after he had made his will and recovered from his illness, with the witnesses, Wm. A. Turner, Mathis, Berry and Allen, in regard to his will and its provisions, should have no effect or weight with them in ascertaining the fact whether it was his will or not.
    4. That his Honor erred in not stating to the jury that it was immaterial to the legal validity of the will whether H. C. Turner was worthy of belief or not, and the jury were thereby misled, and put the whole case and question upon the character of H. C. Turner, confounding legal credibility or statutory competency to attest a will, with the credibility or worthiness of belief of the witness.
    5. That his Honor erred in not stating to the jury, that they might reject the alterations made by Weaver, and establish the residue of the will.
    6. Because the will was drawn in conformity to the testator’s frequently expressed designs and previously written wills, and ought not, under the circumstances, to have been set aside, except upon the fullest and clearest proof of incompetency.
    
      Bauskett and Carroll for the motion.
    
      Pope and Wigfall, contra.
   Curia, per

Richaudson, J.

The motion for a new trial comes before the court under circumstances favorable to the motion.

The ordinary had established the will; and the circuit Judge reports his opinion, that the will had been well executed.

Two of the subscribing witnesses deemed the testator mentally competent to make his will; and they are supported in their opinion by the attending physician and some other witnesses.

On the other hand, the remaining subscribing witness, Mr. Weaver, thought the testator quite incompetent, from mental weakness, to make a will.

But again, the testator survived his sickness at the date of the will in August, 1840, and lived to July, 1844; and in some of his after-conversations, appeared to recognize the will in question as his will.

The last fact is imposing and weighty — as shewing the testator’s consciousness, that he had made and still acknowledged this to be his will. A just consideration would therefore inquire — could the will have been imposed upon him when in a weak state of mind, and not be afterwards denounced 1

This court cannot, therefore, but feel the reasonableness of the motion for a re-hearing before the jury.

Men must not be deprived of the right to make last wills merely upon differences of opinion among ' the witnesses upon their mental competency.

But the new trial is granted without prejudice. Let the jury re-consider the whole case.

O’Neall, EvaNs, Wardlaw and Frost, JJ. concurred.  