
    Watts, &c. vs. Bullock.
    
      June 11.
    
    
      A will established. The mental disease under which the testatrix labored, appearing to have been want of excitability, and not aberration of mind.
    
    Statement of the case.
   Opinion of the Court.

THIS is a writ of error to an order of the Woodford county court, admitting to record an instrument purporting to be the last will of Mildred Gregory, deceased, with a codicil thereto annexed.

The execution of the will and codicil, and their attestation by the requisite number of witnesses, in the form prescribed by law, are incontestably established ; and the only question of any difficulty which the case presents, is, whether the testatrix was of sound mind or not ? She was old and greatly debilitated, by the disease under which she labored when she made her will and codicil, and the usual state of her mind, from the time she first took the disease, until her death, was that of great torpor and inactivity ; but her mind was evidently not deranged, it was, in fact, rather a want of sensibility, than a want of intellect, which marked her condition ; for most, if not all of the Witnesses, agreed, that she could, by any thing sufficiently interesting to attract her attention, be awakened and roused to activity ; and when she was so, that she conversed intelligently, and invariably gave rational and pertinent responses to any interrogatories propounded to her. Some of the witnesses thought, indeed, that she could not be so excited, for a sufficient length of time to make her will; but others entertained a different opinion. The truth seems to be, that she was, at some times, more excitable than at others ; and that some subjects operated more strongly than others, to excite her mind into action. The making of her will, was a subject in which she felt an interest peculiarly strong. She was a widow and childless, and had long determined against intestacy. The primary motive of that determination, was the emancipation of her slaves; to effect which, as is apparent from the testimony of all the witnesses, was, of all earthly objects, the dearest to her heart. It is natural, therefore, to suppose, that her mind could have been more easily, as well as for a longer time, excited into action, when engaged upon that subject, than it was when employed upon ordinary topics; and although it be doubtful in what degree her mind could be awakened into activity at some times, and on some subjects ; yet it is highly probable, that on the occasion of making her will, she was capable of being excited to such mental exertion, as would render her competent to act efficiently upon the subject. When, then, we add to the probability of the fact, the opinion of those witnesses, who thought her to be capable of such exertion, and the still more direct and positive testimony of the subscribing witnesses, who unequivocally testify to her competency, at the time of the execution of the will and codicil, we think we cannot otherwise conclude, than that she was of sufficient capacity to make her will.

The order of the county court of Woodford must, therefore, be affirmed with costs.  