
    EDWARD WOOD, and others, v. LEMUEL SAWYER, and others.
    Certain letters of a testamentary character, written and signed by the testator, dealing with property contained in the principal paper propounded, and referred to therein as giving further directions, having been rejected from probate; Held that such rejection did not, in the view of a court of probate, render such principal paper “ imfinished^ and void.
    
    When a paper writing, purporting to be a will, and executed with the requisite formalities by a person competent to mate a will, is offered for probate, it must be established without regard to the construction of its contents, and without consideration of trusts declared therein, or resulting to the heir.
    Upon ambiguities in the statement sent up to this court, the presumption will be against the appellant.
    To support an allegation of partial insanity, evidence of strangeness of conduct towards a particular person had been introduced by the caveators ; Meld to be competent for the propounders to show similar conduct towards other persons.
    The contents of a paper written by dictation of the testator about two years after he had executed his will, assigning reasons for the particular dispositions of such will, held to be competent upon the question of the testator’s capacity.
    In support of an expert’s opinion upon a question of insanity, it is not competent for him to repeat an account which he had received from a monomaniac as to the development of his own disease; or another account related to him by an unprofessional nurse of another insane person.
    
      The testator, having in his lifetime referred to a certain book as having been printed at his own expense, and as giving a correct account of his . family, a genealogical table therein is competent evidence of the state of his family at his death.
    The course and practice of the Court as to the order in which testimony is to be introduced is well settled, and ought not to be violated, except in cases of surprise or mistake as to matters seriously affecting the merits of a cause.
    Proof of the transaction of ordinary business, not connected with the matter in regard to which delusion exists, is some evidence to rebut a. presumption raised by proof that such delusion existed a short while before; whether sufficient or not, is a matter solely for the jury.
    
      (Whitfield v. Hurst, 9 Ire., 170; Redmond v. Collins, 4 Dev., 430, cited and approved.)
    Caveat, tried before Merrimon, J., at a term of the Superior Court of Chowan, specially appointed for that purpose, begun at Edenton upon Wednesday, 1he Gfhdavof February last, and continued under special acts of the Assembly, iorfour weeks
    The paper writing was as follows:
    “I, James G. Johnston, resident in Chowan county, State of North Carolina, make this my last Will and Testament, in manner following, to wit: — I give, devise and bequeath to my friend, Mr. Edward Wood, resident of Chowan county, and State of North Carolina, all my Estate, both real and personal, of what nature or kind soever that I have in the County of Chowan at the time of my death, including the Mills, Houses and Lots and Negroes now' in the possession of Mr. John Thompson, and for which lie has a Lease not transferable to any person; so also, with regard to the Plantation on which G. J. Cherry lives, for which he has a Lease, not transferable to any other person, — To him, the said Wood, Ms heirs and assigns forever, subject to such disposition and instructions which I shall make in a private letter directed to him, and which he will find with this Will, trusting entirely to his honor and integrity to fulfil them as far as cireimstances and his convenience and the means and 
      funds in Ms hands wiU permit. I give also, to the aforesaid Edward Wood, all the money he may find at my death, all my shares of Bank Stock in whatever State they may be located, United States Stock or loans, North Carolina State Stock, Virginia State Stock, and any Stock of whatsoever kind soever of which I may die possessed, all Bonds and Notes of individuals, and balance of accounts due me. I hereby appoint my said friend, Edward Wood, my sole Executor of my Estate of unsettled business in the County of Chowan, without interfering, or being interfered with, by my other Executors, mentioned in this Will, except by advice, and to be entirely free from any claims except my debts, if any. in the County of Chowan, and my funeral expenses. If any of my relatives should undertake to prevent the establishment of this my last Will and Testament, then it is my wish that they should be entirely cut off and deprived of any provisions I may make for them or him, in the private letter I leave for my Executor, Edward Wood, in whom I have entire confidence to do them justice, according to my instructions contained in that letter, which I wish him to keep entirely private until he finds it perfectly convenient to meet my instructions.
    “ Secondly, I give, devise and bequeath, to my friend, Mr. C. W. Hollo well, resident in Pasquotank County, State of North Carolina, for his great exertions in protecting and taking care of my property in that County, all my Estate, both Eeal and Personal, of what nature or kind soever, in the County of Pasquotank, to him, his heirs and assigns forever, subject only to the instructions I may give in a private letter I shall write him, and will be found with this, my last Will. Having full confidence in his honor and integrity to fulfil the instructions in that letter, which is my wish should be kept entirely secret, until it is perfectly convenient for him to fulfil the instructions therein contained, being governed by the circumstances of the times and the funds and means he may have in hand of mine. I also give Mr. C. W. Plollowell all the money, or funds, I maj1have in his hands, after paying any debts I may owe in the County of Pasquotank, at the time of my death, and I do hereby appoint my friend, C. W. Hollowell, my sole Executor of all my Estate, and settle all my business in the County of Pasquotank, without interfering, or being- interfered with, by the other Executors, appointed to settle my business in other Counties. If any of my relatives should endeavor to prevent this, my last Will and Testament, from being established, it is my wish that they, or him, be entirely cut off and deprived of any provision I shall make for them, or him, in the private letter I shall leave for my Executor, C. W: Hollowell.
    “ Thirdly, I give, devise and bequeath, to my friend and faithful agent; Henry J. Futrill, (for his fidelity and g-ood management in taking care of and protecting my property in the Counties of Halifax and Northampton,) all my Estate, both Real and Personal, of what nature and kind soever, in the Counties of Halifax and Northampton, to him, his heirs and assigns, forever, subject only to the instructions and provisions I shall make in a private letter directed to him, and which will be found with this, my last Will and Testament. I also give to Henry J. Futrill, all the money and notes, or bonds, or accounts due me, which be may have in his hands, after paying- any debts I may owe in the said Counties of Halifax and Northampton, and I do hereby appoint the aforesaid Henry J. Futrill my sole Executor of all my Estate, and to settle all my business in the Counties of Halifax and Northampton, not to interfere or be interfered with, by my other Executors, named and appointed by the Will to act in other Counties; and it is my wish, that if any of my relatives should think proper to dispute or prevent the establishment of this, my last Will and Testament, that they, or him, shall be entirely cut off and dep rived of all provision I may have made for them, in the private letter directed to Mr. Henry J. Fntrill, in whose integrity and honor I have entire confidence to do justice, according to my instructions in that letter, and according to the circumstances of the times and the means and funds he may have in his hands of mine, which letter to Mr. Futrill, I wish him to keep entirely secret, until it is perfectly convenient to carry out my instructions.
    JA. C. JOHNSTON, [Seal.]
    “ Thus, after cool, calm, and mature deliberation and reflection, 1 have made this my last Will and Testament, in these times of revolution and anarchy, when 1 know not what a day may bring forth, and when I do not know whether I shall be worth half or any part of the Estate I now possess, when I die, for which reason I have made no specific legacies or devises, but rely entirely on the integrity fidelity and moral sense of my Executors, appointed by this Will, to carry out my intentions and instructions contained in the private letters directed to eacli of them separately, written by my own hand, and enclosed in the same envelope with this Will, freeing them from legal restraint, restrictions or exactions, to which I do not wish them to be subjected, and further, if any person or persons who may have any expectations from me, shall think proper to dispute this Will, or attempt to prevent it from being duly established, I request and direct my Executors to cut them off and deprive them of any legacy or provision I may make for them, or him, in the private letters of instruction I have left for my Executors, appointed by the Will.
    “ All my life has been devoted to cultivating and improving my farms in Halifax, Northampton, Pasquotank and Chowan Counties, that they may be continued in the same progress of improvement, and that my negroes may be taken care of, and that my Real and Personal Estate may not be divided and scattered to the four winds of Heaven, and, perhaps, brought under the hammer of the auctioneer or sheriff for a division, I have placed them in the hands of persons whom I know to be men of energy, honor and integrity. Though none of them are connected with me by blood, marriage or otherwise, I have a high respect for them for moral worth and great energy to carry out my wishes and instructions contained in my private letters to them. I now make and publish this, my last Will and Testament, written by my own hand, to be construed literally as to my errors in writing, of omissions or informality. Hereby revoking all former Wills by me made at any time heretofore. The word G. J. Cherry interlined in the 13th line in page 1st, the word winds interlined in the 4th line on page 6th, were made before the signing, sealing and publishing of this Will.
    “ In witness whereof, I hereunto set my hand and seal, this tenth day of April, in the year of our Lord one thousand eight hundred and sixty-three, (1863) April 10th.
    JA. C. JOHNSTON, [seal.]
    Signed, sealed and published in presence of—
    J. E. Norfleet,
    H. A. Skinner,
    J. R. B. Hathaway.
    “The foregoing instrument of writing, purporting to be the Will and Testament of James C. Johnston, was duly acknowledged and confirmed by him in my presence this 30th day of June, 1863.
    WM. J. NORFLEET.
    “That the annexed Will may not be thought to be made under sudden impulse and excitement, I, this day, 12th of September, 1863, acknowledge and confirm it, not wishing •any alteration whatever to be made therein. Witness my hand and seal, 12th September, 1863.
    JA. C. JOI-INSTON, [seal.]
    Test:
    Tn. S. Summerkll,
    Wm. R. Skinner”
    This paper having been propounded for probate at May Term, 1866, of Chowan County Court, upon its being suggested to the Court that certain letters in said script referred to constituted part of said will, and that the next of kin of the testator had a right to inspect them before electing to caveat, &c., they were exhibited and propounded as parts of said will.
    The first of these letters was dated “April, 1863,” and directed to Edward Wood; the second was dated “11th April, 1863,” and addressed to C. W. Hollowell; the third was dated “12th April, 1863,” and addressed to Henry J. Futrill. They all contained directions in regard to portions of the property included in the will: distributing gifts and making dispositions as regards favorite slaves, &c., &c. Each was subscribed by the testator, but neither was attested.
    The issue submitted was, “ Is the said paper writing, or ■any part thereof, and if so what part, the last will and testament of the said James C. Johnston, or not.”
    Upon the trial in the Superior Court the caveators excepted to the following rulings of his Honor:
    1. The propounders proposed to ask a witness, if the testator’s habit, after becoming offended with any one, was not to treat such person with coolness, and to refuse to quarrel with him. This was offered to explain strangeness of conduct and coolness towards a person with whom the testator had been on terms of friendship, but had afterwards become •offended.
    
      This evidence the Court admitted.
    2. The propounders offered a paper which a witness, one G. J. Cherry, said he had written in the presence of the testator, at his dictation, and then had read over to him, and heard him approve of as being correct. This paper gave reasons for the dispositions contained in the will, and was offered to show the testator’s state of mind. It had subsequently been read by one James E. Norfleet to the testator, and again approved of by him.
    This was admitted by the Court.
    3. The caveators proposed to ask of a medical expert what were the facts attending the first development of a case of monomania which he had attended in its later stages — he having no personal knowledge of these facts, but having-heard them related by a sister of the patient: they also proposed to ask such expert what was the history, and what his opinion of another case of monomania, the facts of which lie had received only from the patient.
    The propounders objected, and the Court excluded the testimony.
    4. It was in evidence that the testator had said of one of the caveators, that he was a gambler. The caveators proposed to prove that this person’s general character was good, and that he was not a gambler.
    The Court ruled that at this stage of the trial (the caveators having rested their case, and the propounders having-subsequently introduced witnesses,) the caveators could only introduce evidence to impeach witnesses introduced by the propounders after the caveators had rested their case, and for the purpose of sustaining such of the caveators’ witnesses as had been attacked by the propounders, — by way of rebutting and strengthening evidence; and that, at all events, the admission of such evidence then ivas matter of discretion. The Court therefore declined to receive the evidence proposed.
    
      5. The propounders offered to read an extract from a book entitled “ Life and correspondence of James Iredell, one of tbe Associate Justices,” &c., &o., — which extracts purported to give a genealogical table of the family of the alleged testator. Much evidence had been offered during the trial to show the number of the heirs and next of kin of the testator, in order to prove that if he had made no will, his estate, and especially his slaves, would have been much scattered — which would have violated his humane intentions. It was in evidence that this book was taken from the testator’s library, that he had many copies of it, that he had presented copies of it to many gentlemen accompanied with expressions of approbation of it, particularly as containing a correct account of his family, and that he said he had furnished money to publish it.
    The Court allowed this evidence to be introduced.
    6. The Court having instructed the jury that upon the evidence connected with the deposit of the letters to Wood, Hollowell and Futrill, they should find that they were no part of the will, — the caveators asked the Court to instruct them farther that by the rejection of these letters as part of the alleged will, a trust resulted to the heirs at law, in all the property mentioned in the first paragraphs of the several devises and bequests to Wood, Futrill and Hollowell, which were made subject to the “ disposition and instruction ” of said letters. That this was so by the law of England. But that the County Courts of the State being courts of probate of wills, both of real and personal estate, and the paragraphs aforesaid in the attested instrument being subject to and dependent upon the private letters, which could not be recognized as part of the will, it was unfinished and void as to those paragraphs, although, if the alleged testator was of sound mind at its execution and re-affirmation, it could be upheld as to the other parts.
    The Court declined to give this instruction.
    
      7. The caveators farther asked the Court to instruct the jury : That if the alleged delusion had been proved to the satisfaction of the jury to have existed shortly before the execution of the paper, to wit, on the 7th March, 1863, proof of the transaction of ordinary business, not connected with the subject of the delusion, was not sufficient to rebut the presumption against the paper raised by the proof of delusion as aforesaid.
    The Court, being of opinion that such instruction would be invading the province of the jury, declined to g-ive it, but told the jury that they must weigh the evidence, and if they believed the caveators had proved the insanity of the alleged testator, then the burden of proving sanity would rest on the propounders, and they would consider of the evidence referred to in this view.
    Verdict establishing the will; rule for a new trial; rule discharged; judgment and appeal.
    
      Graham, Bragg, Vanee and Eaton, for the caveators. .
    1. The paragraphs in the script which are affected by the letters, upon the rejection of the latter should also have been rejected, as “unfinished.”
    That parts of a script may be established and others rejected, see Wms. Exrs., 209; Gash v. Johnston, 6 Ir-e., 289.
    On inspection of this script it is manifest that the testator designed in these clauses to have one will for the public, duly attested and to be recorded, and another containing the beneficial dispositions of the property embraced, which should remain a profound secret between him and his executors.
    A will must be a consummate act, (Swin. 57,) and by statute every part must be in writing, attested by two witnesses.- Chancery is the only court of prolate of wills of real estate in England, if there be any such court; Cruise Dig. 6, 76 — 77; Story Eq., (5th eel.,) 1445-9, and notes; White v. Wilson, 13 Ves. 87 n., (Sumn.); Paine v. Hale, 18 ib., 475 and notes; Jaclcsonv. Berry, 2 Cond. Ch. 224 — ’5; Harris v. Cotterill, 3 Mer. 678; although no decree in favor of a will is made except after a verdict in a court of law upon an issue of devisavit vel non. In chancery the rule is that no paper can be admitted as part of a will unless formally executed, or unless referred to in a formally executed paper as already existing. Haber gham v. Vincent, 2 Ves. Jr. 204; Smart v. Prigeon, 6 Ves. 560; Mucldeston v. Brown, ib. 67; Redi. Wills, 261-4 and 266, n.; In re Lancaster. To same effect Chambers v. McDaniel, 6 Ire. 226; also Redf. on Wills, 287; 4 Kent. 531.
    The letters are no part of the will, and do not even create a trust which Equity will execute. The doctrine in Cook v. Redman, 2 Ire. Eq., 623, and Thompson v. Newlin, 6 Ire. Eq. 380; S. C., 8 Ire. Eq. 32, has no application here. There the wills were upon the face perfect, and the Court put its interference upon the ground offraud, the testator having parted with all his interest. Here the testator reserves his interest over the property in question, and, things being in this posture, dies; thereupon that reserved interest descended to his heirs. The testator says that his devises to Wood, &c., are subject to fetters to be written in future, i. e., regard being had to the law, ‘■'•subject to my-intention not to dispose of it by will,” in other words, “ I intend it for my heirs.”
    The question is, Shall a declaration of this be made by a Court of Probate, or put off for a Court of Equity ? There is no reason why it may not bo made here. See analogous doctrine in regard to conditions precedent unperformed, or become impossible. 1 Jarm., 796 — ’8, 806, 682; Van Home v. Dorrance, 2 Dali., 317; Moaidey v. Riggs, 19 John. 71 — ’2; Taylor v. Bullen, 6 Cow. 627; 1 Jarm., 23, 26. In England the Ecc. Courts will reject a paper purporting to execute a power, if the power be not properly executed, ib. 14, 26, &c. See Weeks v. Malierdet, 14 East, 568. There can be no reason why our Courts of Probate should blindly set up a will, when its contents show that it can have no effect.
    Nor are these devisees relieved from an application of this doctrine by the expressions of confidence, &c., contained in the will. These, are only customary pledges of affection and confidence, leaving the duties of the agents to be declared by courts, as in ordinary cases; or, supposing that he considered that their honor would be touched by the contents of the letters, now, that these are suppressed, he must be taken to have intended that they should be governed by the rules of law.
    2. His Honor erred in not admitting the evidence that one of the caveators was not 'a gambler. See Wheeler v. Alderson, 5 Ecc. Rep., 211, 1 Stark. Ev., 386; Rex v. Hildilch, 24 Com. Law, 330; Rowe v. Brenton, 3 Man. & Ry., 301; Broivnv. Murray, 21 Com. Law, 431, and note, 3 Chitty’s Gen. Pract., 906-7.
    .3. (a) Evidence of the testator’s hábil and manner should not have been admitted to repel the inference of an unsound mind arising from a causeless insult to an unoffending man. Slate v. Tilley, 3 Ire. 424; McRa.e v. Lilly, 1 Ire., 117; Jeffries v. Harris, 3 Hawks, 105; State v. Barfield, 8 Ire., 344; Bottoms v. Kent, 3 Jon. 154. No matter how slight the error, it is ground for a new trial. Barton v. Morplxis, 2 Dev., 520; Doimiey v. Murphy, 1 Dev. & Bat., 82.
    (b) An issue like this is a proceeding in rem to inform the Court, and is not governed by the technical rules of pleading, or of evidence. Strictly, there are no parties, and can be no nonsuit. St. John's Lodge v. Gallender, 4 Ire., 335; Sawyer v. Dozier, 5 Ire., 97; Benjamin v. Teel, 11 Ire., 49.
    4. The memorandum signed by Cherry was improperly admitted. It may be styled an “ Irish deposition,” a written statement of the evidence of a witness, to which he was not sworn, and as to which there was no opportunity for cross examination, which is forced upon the caveators without their consent. 1 Green Ev., 439.
    5. The statement of the expert should have been admitted. Melvin v. Easley, 1 Jon., 386, is not in point, yet may be doubted even so far as it goes. See Bowman v. Woods
    
    1 Iowa, 441. All agree that the witness may refer to books. Collier v. Simpson, 24 Com. Law, 219. The matters referred to in this way are not evidence of themselves, but are brought in to test the quality of that which is the only evidence in that connexion, viz., the opinion of the expert. See 1 Green Ev., s. 440, 3 ib. 416.
    6. The extract from the “Life of Iredell” was inadmissible. The date of the book is not given, and therefore the genealogy throws no light upon the state of the family at the death of the testator. It was irrelevant, and calculated to confuse the jury.
    7. The instructions asked in reference to the continuance of the monomania should have been given. Deio v. Ciarle, 2 Ecc. Rep., 436; Groom v, Thomas„ 4 Ece. Rep., 181. See Ray’s Med. Juris.
    
      Moore, Smith, Winston, Heath, Gilliam, Coniglancl and Phillips & Battle, contra.
    
    1. Indistinctness in the statement of the case cannot help the appellants. Honeycut v. Angel, 4 Dev. & Bat., 308; Fleming v. Holcombe, 4 Ire., 268; Love v. Johnston, 12 Ire., 355; Fagan v. Williamson, 8 Jon. 433; Wright v. Stoive, 4 Jon., 516; State v. Jim, 3 Jon. 348.
    2. Courts of Chancery in England are not Courts of Probate as to wills of real estate. Jones v. Jones, 3 Mer., 170; Pembertons. Pemberton, 13 Yes., 293; Jones v. Frost, Jac., 217, 1 Jarm., 23, n. (f); Roberts’ Princ. of Chan., 211, (L Lib. 86.) Therefore the deduction as to the functions of our County Courts in such matters is unfounded. Courts of Equity, as courts of construction, will administer the trusts attached or implied. Thompson v. Neiolin, 8 Ire. Eq., 338, and again 6 Ire. Eq., 380; Brown v. Clegg, 6 Ire. Eq., 90; Shelton v. Shelton, 5 Jon. Eq., 292; Iiiggs v. Swann, 6 Jon. Eq., 118.
    3. The evidence as to the person referred to by the testator as a “ gambler ” was properly excluded. The case stated by the Judge shows that its admission was a matter of discretion with the court below. Phila. & T. P. li. Co. v. Simpson, 14 Pet, 462; Johnston v. Jones, 1 Black, 207.
    4. Evidence of the testator’s general habit when offended was properly admitted. It being admitted that he was sane as to other persons, evidence that he had treated such persons in the same manner that it was shown by the caveators he had treated persons who were the objects of his supposed monomania — was not only relevant, but important.
    5. The paper by Cherry was»put in as an act and declaration by the testator, showing capacity and deliberation. Norwood v. Morrow, 4 Dev. & Bat., 442; Oneal'v. Waller, 1 Rich., 234; Idcdsey v. Sensebaugh, 1 Smith, N. Y., 485; Bussell v. Hudson, B. R, 3 ib., 134; Love v. Johnston, (above.)
    6. The slories told to the expert by former patients or their friends, could not be repeated by him under the circumstances. In some cases, for the purpose of resisting attacks made upon physicians for malpractice, evidence of that sort might be admissible. That is not the case here. See Biles v. Holmes, 13 Ire., 485; Pope v. Askew, 1 Ire., 16: Muda v. Suckermore, 31, Com. Law, 406. To admit such evidence would tend to spin out trials indefinitely.
    7. For the admissibility of the extract from the Life of Iredell, see Monkton v. Alto. Geni., 2 Russ & Myl., 431, 3 Phil. Ev., (1859) 597, 6 M. & G., 471; Morgan v. Purnell, 4 Hawks, 95; Moffii v. Witherspoon, 10 Ire., 185; Clement v. Hunt, 1 Jon. 400.
    8. In reference to the instruction asked for upon the presumption of continuance of monomania — that goes upon tlie idea that the presumption is a presumption oí law, which is not true. Sutton v. Sadler, 3 C. B., (N. S.) 87, (91, Com. Law); Crane v. Lessee of Morris, 6 Pet. 598, (p. 616); Kelly v. Jackson, ib., 622; State v. Patton, 5 Ire., 180; also upon the erroneous notion that monomania leaves the other faculties wholly untouched. Peto v. Clark, 3 Add., 79, Shelford, (2 Law Lib.) p. 30, Taylor’s Med Jur., 626. See remark in Phil Ev. 3d, 292, showing that evidence of general sanity is always some, though not conclusive evidence of the disappearance of monomania. The doctrine as to a presumed continuance of insanity appears in the books to be applied to cases oí general insanity. Atto. Geni v. Parnther, 3 Brown, C. C., 441; Jackson v. Van Dusen, 5 John., 141; Grab-ill v. Barr, 4 Barr, 441; Hall v. Warren, 9 Ves , 611; Kemble v Church, 3 ITag;g\, 273; Clarke v. Fisher, 1 Paige, 174; Boyd Ely, 8 Watts, 70.
   Eeade, J.

It was admitted that the paper propounded was executed with the formalities which the law requires.

In the first clause of the paper, there is a gift to “Edward Wood, his heirs and assigns forever, subject to such dispositions and instructions as I shall make in a private letter directed to him, and which he will find with this will.”

In the second clause, there is a gift to “C. W. ITollowell, his heirs and assigns forever, subject only to the instructions I may give in a private letter I shall write him, and will be found with this my last will.”

In the third clause, there is a gift to “ H. J. Futrill, his heirs and assigns forever, subject only to the instructions and provisions I shall make in a private letter directed to him, and which will be found with this my last will and and testament.”

These clauses dispose of the bulk of the testator’s estate, which was a very large one.

The testator then signed his name to the paper, which is without date, and ail in his own handwriting. * ■

The writing then begins again, as follows: “Thus, after cool, calm and mature reflection, I have made this my last will and testament in these times of revolution and anarchy, when I know not what a day may bring forth, and when I do not know whether I shall be worth a half, or any portion of the estate I now possess, when I die, for which reason I have, made no specific legacies or devises, but rely entirely on the integrity, fidelity and moral sense of my executors appointed by this will, to carry out my intentions and instructions contained in-the private letters directed to each of them separately, written with my own hand, and enclosed in the same envelope with this will.”

The paper is then signed by the testator, attested by three witnesses, and dated 10th April, 1863. And it is subsequently affirmed and signed again by the testator, attested by two other witnesses, and dated 13th September, 1863.

Three letters purporting to have been written by the testator to the aforesaid persons, Wood, Hollowell and Futrill, were propounded as parts of the will, but they were objected to by the caveators as not being executed with the formalities required for a will, and his Honor instructed the jury that, taking all the testimony to be true, they could not be set up as parts of the will. The caveators then asked his Honor to instruct the jury, “ That, by reason of the rejection of these letters as parts of the alleged will, a trust resulted to the heir at law in all the property mentioned in the first paragraphs of the several devises and bequests to Wood, Futrill and Hollowell, which were made subject to the dispositions and instructions of said letters. That this was so by the law of England. But that the County Courts of this State, being courts of probate of wills both of real and personal estates, and the paragraphs aforesaid in the attested instrument being subject to and dependent upon the private letters which could not be recognized as parts of the will. It was unfinished and void as to those paragraphs.” The Court declined to give the instruction, and the caveators excepted. This exception involves the consideration of the powers and duties of our County. Courts as courts of probate, for the case is to be considered here as it ought to have been considered in the County Court.

In the full and very able discussion with which we were favored by the counsel on both sides, the exception was considered as if the reference in the will were to private letters, which were not in existence at the time the will was executed, but thereafter to he xoritien. The language of the will is not very clear, and there may have been facts outside, which led to this conclusion. The language would seem to indicate that the letters were written at the time the will was executed. It is true that, in the body of the will, the reference is to letters which “ I shall write,” but, in the concluding clause above quoted the reference is to letters “written with my own hand, and enclosed in the same envelope with this will;” so that it seems probable, judging only from the language itself, that the testator wrote his will and signed it, and then wrote the letters, and then wrote the concluding clause and signed it again, and called in witnesses and had it attested. The letters were certainly written when the will was reaffirmed, September 13th, 1863. But however this may be, it could only be important on the trial upon the question whether the letters were part of the will; and that question was decided against the propounders, and they did not appeal. In passing upon the question, whether the will itself was to be admitted to probate, it makes no difference whether the letters could be admitted to probate or not; or whether they were written when the will was executed, or were thereafter to be written; or whether the letters propounded were the letters referred to; or whether any letters were ever written either before or after tbe execution of the will. These questions may be important hereafter when the construction of the will comes under consideration, but they are of no consequence in the probate court, upon the trial of the issue of devisavit vel non. And this brings us to the consideration of the powers and duties of our courts of probate.

“The Courts of Pleas and Quarter Sessions shall, within their respective counties, take the probate of wills, and order them to be recorded in proper books kept for that purposeRev. Code, c. 119, s. 13. And if the validity of any last will and testament, whether written or nuncupative, shall be contested, the same shall be always tried by a jury, under an issue made up under the direction of the court; ib., 15. The uniform practice, when a paper writing is offered for probate as a will, has been, to prove the execution of the paper and obtain an order that it be recorded, without consideration of its contents, except so far as to see that it purports to be a will. And where the validity of the will is questioned, and it is submitted to a jury, the jury is restricted to the same inquiries. Where there is no objection, the court passes upon the validity of the paper, and where there is objection, the jury passes upon it; and, in either case, the proceeding is in rem. The probate passes upon the rights of no one under the will, but only establishes it as a will, leaving the rights of parties to be ascertained thereafter. We are not aware of any inconvenience or injustice that has resulted from this practice, and we believe that this is the first instance in which a departure has been insisted upon. Indeed, it was admitted at the bar to be a case of the first impression. The practice is in accordance with what we may suppose the theory to have been, and with the constitution of our probate courts. The justices who hold the courts are unprofessional men taken from the body of the people, and, therefore, incompetent to the task of construing wills; yet they are quite competent to pass upon the facts as to the execution of the paper, and in the same way jurors are compentent to pass upon such facts, when they are submitted to them. But our County Courts have not the learning which is necessary to construe wills and declare rights, nor have they the power or the means to declare and enforce trusts. We have tribunals with sufficient learning and adequate powers to these ends. But now it is insisted that when a paper is propounded for probate in our County Courts, the court or the jury, as the case may be,’ shall look not only to the paper to see whether it has the formalities which the law requires, and is in all respects complete as an instrument, but also into the contents of the instrument, to see whether the testator has used such language as in their opinion will effect what they may suppose to be his intention; and if the language is inartificial, so that there is doubt as to who will take the property, the instrument itself shall be declared to be “unfinished.”

The inconvenience and confusion to result from such a practice are palpable. If the construction of the instrument is to precede its probate, then it would often be, that after the contents are explained and its meaning ascertained, the instrument itself would be declared void for the want of some formality in the execution, or of capacity in the testator. And, in almost every case, tire qualification of the executor, and the ordinary administration of- the assets, would be postponed until all the persons interested, or claiming to be interested in the legacies, shall have their rights declared; and after that, it may turn out that the whole estate is exhausted in the payment of the debts, so that nothing is left for the satisfaction of the legacies. In this case? the court was asked to determine the question between the legatees and devisees on the one side and the heirs at law on the other, when it may turn out that there are debts enough to exhaust the whole estate, so that neither the devisees nor the heirs have any interest. Whereas, under the usual practice, the will would be admitted to probate, the executor qualify and administer the assets, and in proper time, and in the proper court, the devisees and the heirs at law have their rights settled. The caveators insist that the gifts to Wood, Hollo well and Futrill, were upon trusts to be declared, and that no trusts were ever declared, and, therefore, there is a resulting trust to the caveators as the heirs at law. Supposing that to be so, they add that the will is “unfinished,” and cannot be admitted to probate. But the doctrine of unfinished, or incomplete instruments, applies not to the construction of the contents, but to the execution of the instrument. It may be shown that a testator intended that his estate should be divided per stirpes, but by reason of inartificial ^language, it will be divided per capita; but such a will would not be called “unfinished.” So, in his will duly executed, he may declare his purpose to execute a codicil, which he fails to execute; still his will is “finished,” and must be admitted to probate. So the doctrine of con-. ditions precedent and subsequent apply not to the validity of the will, but to the vesting or not vesting of the legacy. Many cases were cited by the counsel for the caveators to show that papers referred to, which were not in existence at the time, but thereafter to be prepared, and also papers which were insufficiently described, could not be set up as parts of a will; but no case was cited to show that the wills themselves were refused probate because the papers referred to were rejected. Indeed, in the cases cited, the wills were established. If a paper, purporting to be the will of a feme covert, were offered for probate, the probate court would reject it, because a feme covert has not the power to make a will; but if marriage articles were produced which purported to allow the feme covert to make a will, then the will would be admitted to probate without looking into the articles for the purpose of construing them, any further than to see that they give color to the act of the wife. In the case of Whitfield v. Hurst, 9 Ire., 170, Ruffin, C. J. says: “In the first place, the court holds that the marriage contract is to be deemed in this proceeding an authority to the wife to make a will. We do not mean that we now put a final construction on that instrument, and determine that it vested a separate estate in the wife, either absolute or temporary; for those are points not proper for the construction of the court in a probate cause. It is true that this court exercises as an appellant tribunal the functions both of a court of probate and a court of equity; and, therefore, it might be supposed that it would be well to decide all the questions that could arise under that instrument at once. But in the form in which the case is now before us, the court can only deal with such matters as were cognizable before the County Court in this very case, because we are not proceeding originally, but reviewing the decision of that and of the Superior Court. Therefore, we put no construction on the paper further than to say that it at least gives a color to the act of the wife, for that is sufficient to induce the court of probate to admit the paper, leaving it to a court of equity ultimately to construe and enforce the articles, and compel the execution of the will, if made in view of that court under a sufficient authority, or by virtue of a sufficient estate in the wife.” So, in the case of Redmond v. Collins, 4 Dev. 430, the question was discussed whether under the will which was offered for probate, the executors took the legal estate, or whether a power only was given them, 'whilst the land descended to the heir. The court says: “The question before such a court (court of probate) is, whether the paper is duly executed to pass the legal estate ? It has no concern with the trusts upon which it is given, or to the construction of the will, which must be enforced in this, as in other respects, in another court.” '

The exception which we are considering in this case clearly shows the confusion which would result from the practice which it seeks to establish. Four papers are offered for probate. It is not for the court, but for the jury, under proper instructions, to say whether any or all of these papers be a will. The court instructed the jury that, all the evidence being true, three of the papers had-not the formalities which the law required, and therefore they could not be set up,, and that they must find against these three papers. Now, if the propounders had objected to this charge, and had appealed, it would have been necessary to set forth the evidence, to see whether the instruction was right. But the propounders did not except, and, therefore, there is nothing to be considered upon that part of the case. But how about the fourth paper ? What is to become oi that ? The three papers were not executed according to the formalities which the law requires; they were not attested, nor were they found with the valuable papers or effects of the testator, nor deposited with a friend for safe keeping. It was proper therefore for the Judge to tell the jury that, taking all the evidence to be true, they must find that they were no part of the will. But the fourth paper had all the required formalities ; it was properly written, signed and attested, and therefore his Honor could not charge the jury that, taking a.11 the evidence to be true, it could not be set up as a will, but would have to charge them precisely the contrary; and, therefore, he was asked to take the question of fact from the jury, and to declare as a matter of construction that, because they had found against the other papers, this paper was unfinished and void. Upon the trial of the issue of devisavit vel non, it was for the jury to say whether the paper was or was not finished, under proper instructions as to what constituted a finished paper. And just as he had charged the jury that if they believed the evidence they must find against the three papers, so he. must charge them that, if they believed the evidence, they must find for the fourth paper. Y et he was asked to declare as a matter of construction of the contents, without regard to the formalities of execution, that there was a resulting trust to the heirs, and, therefore, what ? — not that the will must be set up, and the trusts declared and enforced by a court of equity according to the course and practice of the court, but that the will itself was unfinished and void. He was obliged to tell the jury that the letters were no parts of the will, whatever might be their contents, because they had not the formality of execution which the law requires. If, then, the formalities of execution without regard to the contents were decisive of three of the papers offered, why was not the formality of execution, without regard to the contents, decisive of the fourth paper ? If the Judge could not look into the contents of the three papers, and set them wp, because they did contain the will of the testator, how could he look into the contents of the fourth paper, and reject it because it did not contain his will.

It will be noticed that we do not consider the question whether there is a resulting trust to the heirs or not. It may be that the devisees will take the property, discharged of all trusts; or, it may be that the trusts declared in those letters may be enforced; or, it may be that there are other letters yet to be produced. •

Our conclusion is, that when a paper writing, purporting to be a will and offered for probate, is executed with the formalities which the law requires, by a person who is competent to make a will, it must be admitted to probate, without regard to the construction of its contents, or the consideration of any trusts which may be declared or which may result to the heir.

2. It was not agreed at the bar, and we are unable to determine’ from the exception, which party introduced in evidence the declaration of the testator that' one of the caveators was a gambler. Nor does it appear at what time of the trial it was introduced. If it was introduced by the propounders in their beginning, then the proper time for the caveators to meet it was in their answer. But if the propounders introduced it in their reply, then the caveators could have met it in their rejoinder. In justice to the learned Judge who tried the cause, it ought to be presumed that, if the propounders introduced the evidence, it was in their beginning and not in their reply, because the Judge puts his refusal to allow the caveators to offer evidence to disprove the truth of the declaration, upon the ground that it was not offered in apt time. It would have been in apt time, if offered at the first opportunity, and, therefore, we are to taire it that it was not offered at the first opportunity, for the charge of the Judge is presumed to be right, unless it is shown to be wrong. If therefore there was error, it is the misfortune of the caveators, because it was incumbent on them to sustain their exception, by showing that there was error. It is true that the presiding Judge may allow evidence to be introduced at any time before the verdict is rendered, but this is at his discretion. The course and practice of the court as to the order in which the testimony is to be introduced is well settled and well understood by the profession. It is very important that it should be observed. It ought not to be departed from, except in cases of surprise or mistake in matters seriously affecting the merits of the cause, and of that the presiding Judge has a discretion which we cannot review. It is not .to be presumed in any case that the discretion will be abused. We have great satisfaction in believing that the parties to this cause were indulged upon the trial below in every reasonable relaxation. And it is to be mentioned in high commendation of the learned Judge and the eminent counsel who tried the cause,, that although the trial occupied a month, and many embarrassing questions arose, not an error is discovered in any part of the proceedings, and if by inadvertence the evidence was lost in the particular now under consideration, it is a relief to know that it could scarcely have been material; for, whether the person alluded to was a gambler or not, the testator thought he was, and his belief of that fact would as certainly have excluded him from his bounty as if the fact existed. The only light in which it could have been important to contradict it, was to show that the testator must have been under an insane delusion, to believe a man to be a gambler who was not so in fact. But it is such slight evidence of insanity to make such a mistake, that, unless the case had been precisely balanced, it could not have turned it.

3. In order to show the insanity of the testator, the caveators proved that, on some occasion, he acted in what seemed to be a strange manner. As an explanation, the propounders were allowed to offer evidence to show that the alleged conduct was not an indication of insanity, but was only a peculiarity, and was habitual with the testator when he was admitted to be sane. And the caveators excepted. There is no force in the exception. All men are not alike. Their minds, manners, temper and habits are as various as their faces. And in investigating the state of the mind as indicated by any particular conduct, it is legitimate to compare that with his general conduct when he is admitted to be sane. We know that the contraction of the brows, a frown, is indication of displeasure, but if what seems to be a frown is a natural formation, or a habit, or a peculiarity, it would be proper to show it, in order to rebut a false but natural inference. So, if excessive mirth, as is common with some, or excessive sadness, as is common with others, were relied on to show insanity, of which it is sometimes an accompaniment, it would be competent to show that these appearances were habitual and natural. But suppose this were not true, what right have the caveators to complain of the evidence? For, if a single act of the kind relied on by them was evidence of insanity, then continued acts of the same kind, proved by the propounders, were multiplied evidences of the same thing, and, therefore, aided the caveators in making out their case.

4. Some two years after the testator had made his will, he made a statement to G. J. Cherry, explaining why he had made his will; and he caused Mr. Cherry to write down the statement. After the statement was written, Mr. Cherry read it over to the testator, and he approved it, and requested Mr. Cherry to sign it, which he did. Some time thereafter the testator caused J. E. Norfleet to read over to him the same statement, and he acknowledged and approved it, and Mr. Norfleet signed it. This paper was offered in evidence by the propounders to show capacity. And the caveators excepted. The exception is taken upon the ground that the only use which could be made of the paper was to refresh the memory of the witness, who might speak of the statement. But this paper is not what the witness wrote down of his own mind to refresh his memory, but it was the dictation of the testátor, and though written down by another, was adopted and approved by him, and is the same as if he had written it himself. The names of Cherry and Norfleet which they put upon it, were only marks by which they could identify it. The contents of the paper, dictated by the testator, were unquestionable evidence of his capacity, and the paper was properly admitted.

5. It is well settled that the opinion of an expert is com. petent evidence in questions touching the science or art which he professes. And when an expert has given his opinion, it is also competent for him to give the reasons upon which his opinion is founded, in order that it may be seen whether his opinion is entitled to more or less weight. And, in this way, and in this way only, can it be determined whose opinion is entitled to most consideration, where experts differ. Here the caveators took the opinion of an expert as to the sanity of a testator, and then attempted to elicit facts to support the opinion. And if the facts sought to be elicited were relevant, then it was error to exclude them. What then were the facts sought to be elicited? Not anything that he had learned in relation to the testator, or anything which he knew or had learned from science or from scientific men, but facts which he had heard an insane man relate as to the history of his disease, and facts which he had heard an unprofessional nurse relate of the history of the patient, facts to which he had applied no test of truth, and to which none could be applied. Surely the exclusion of such testimony from the consideration of the jury was most proper, and so far from injuring, must have benefitted the caveators; for if the expert had sustained his opinion upon such considerations as these, his conclusion would have been as worthless as his reasons were frivolous. They could not possibly have added any weight to the most hesitating, and they would certainly have detracted from the most confident, opinion. Courts charged with the investigation of truth are greatly indebted to men of science who contribute the aid of their opinions. But marvellous narrations and careless stories disparage science, mislead rather than instruct, and ought not to be allowed consideration.

6. The catalogue of the testator’s family and connexions, contained in a book which he aided in having published, and which he said was a correct “account of his family,” was competent evidence for the purpose for which' it was introduced.

7. Sanity is the natural and usual condition of the mind, and, therefore, every man is presumed to be sane. But this presumption may be rebutted, i. e., the contrary may be proved, in any given case. What amount of evidence is sufficient to rebut it is a question not of law for the court, but of fact for the jury. When the presumption is rebutted and insanity is established, then there is a presumption that insanity continues. But the presumption may be rebutted, i. e., the contrary may be proved to be the fact. What amount of evidence is sufficient to rebut it is also a question not of law but of fact. If it was established in this case that the testator was insane at any time, then insanity is presumed to have continued. But the presumption might be rebutted. And what amount of evidence was sufficient to rebut it was a question not of law but of fact. If therefore the transaction of ordinary business was any evidence to rebut the presumption of the continuance of insanity, the Judge could not have instructed the jury as he was asked to do, that it was not sufficient evidence; for the sufficiency of evidence is never a question of law, but is a question for the jury. The fact of asking the Judge to charge the jury that it was not sufficient, seems to imply that it was some evidence. We think that the transaction of ordinary business by the testator was some evidence of his sanity, and, therefore, it was some evidence to rebut the presumption of the continuance of insanity. And the weight of the evidence was properly left to the jury. Observe that this would be so even if a case of general insanity were under consideration. But this was a case of alleged partial insanity, of recent occurrence, and probably of temporary character, and, therefore, the presumption of its continuance was not a strong presumption, and a jury might be satisfied with much less evidence to rebut it than if it had been of a general or more permanent character. Insanity from drunkenness, fever, grief, or other exciting cause, usually abates, and, therefore, may be presumed to abate, as the exciting cause is removed. And whether the exciting cause has been removed, and whether the mind is restored, and what is sufficient evidence in any given case, depends upon its peculiar circumstances, and cannot be a question of law. It was very properly left with the jury in this case.

The estate involved in this controversy was one of the largest in the State. The counsel on both sides were eminent and zealous, and the learned Judge was patient and discriminating. The questions were numerous, and some of them were intricate. The exceptions, of which there were many, were all abandoned in this court except those which we have considered. We believe that the rights of the parties, so far as they could be considered in this proceeding, have been fairly passed upon.

This opinion will be certified to the court below, to the end that a procedendo may issue to the County Court to admit the will to probate.

Per Curiam. There is no error.  