
    
      Hugh Kirkwood and wife vs. T. & J. Gordon, Ex’rs.
    
    Though it is the duty of the Circuit Judge to leave all questions of fact to the jury, yet this does not preclude him from expressing his opinion, and giving to them the aid of his experience upon the weight of the evidence 5 and where his impressions are strong, he may express them freely.
    “ Capacity enough to make a contract,” is not always the test of testamentary capacity; for sometimes it might require a higher degree of capacity to make a contract than to make a will. If one has capacity enough to know his estate, the objects of his affections, and to whom he wishes to give it, he may make a will.
    It is no ground for a new trial, upon a question of testamentary capacity, that the Circuit Judge said to the jury, he relied with more confidence upon the opinion of the intelligent attending physician, than he did upon the speculative opinions of four physicians who had not seen the testator during his illness, and based their opinions upon the nature of the disease.
    Extreme old age does not of itself render one incompetent to make a will.
    The mere omission of a child is of itself no ground for impeaching the testator’s capacity.
    
      Before O’Neall, J., at Abbeville, Spring Term, 1854.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was an appeal from the decision of the Ordinary, admitting to-probate the will of Robert C. Gordon, by Kirkwood and wife, the latter of whom was a child of the deceased.
    “ The grounds of appeal do not seem to make it necessary to state the evidence in detail. Mr. Gordon was a very aged man more than eighty years of age: his estate was a very large one, more than $80,000.
    “He was attacked with Pneumonia. Thos. C, Perrin Esq., was sent for and drew his will: he, with the other subscribing witnesses to the will, Andrew Winn and Charles Dendy, testified to the sanity of the testator at the time of execution. Mr. Per-rin said he conversed with the -deceased, who asked him if it was necessary that all of his children should be named ? He told him that it was not! He took notes of the will in pencil, prepared, and wrote out the will, and read it carefully to the testator, who said it was what he wanted, and was better done than he could have done if he had been in health! He (Mr. Perrin) told him it would require three witnesses to the execution. The testator told him to call in Charles Dendy and some other person. Accordingly Winn and Dendy were called in; who, with himself, witnessed the due execution.
    
      “ The testator made no provision in the will for his daughter, Mrs. Kirkwood. She was the testator’s eldest daughter, had married agreeably to his wishes, was very worthy of his affection and regard : he had provided slightly for her on her marriage, by giving her a small negro girl, a cow or two, and some furniture. She and her husband removed many years ago to Mississippi. A few years ago he gave her $200. The will was executed Sunday, 18th January ' the testator died on Wednesday, 21st. He was taken sick on Wednesday, 14th, or Thursday, 15th. Dr. Wardlaw was called to see him Thursday, 15th ; he said he saw him that day, Friday, Saturday and Sunday; he wrote, at his request, the note to Mr. Perrin, to come and write his will. He said he thought he was perfectly competent: he was sometimes in a stupor, which was probably produced by an anodyne, which he withdrew Saturday night. At times, he said, there was slight wandering of the mind, but when aroused, he understood and answered intelligibly. He said, at the request of James Gordon, one of the sons of the deceased, he mentioned to him the subject of a will; asked him if he wished one ; he said he did; he told him, if so, now was the time. The testator told him to send for Mr. Perrin, which was done. The witness said it was an accompaniment of the disease (pneumonia) that the mind would be slightly affected. The Rev. McNeill Turner saw deceased on Sunday, after the will was executed: he thought him incapable of making a will; he thought he died the day he saw him, when, in fact, he did not die for three days after. He said mental derangement was the consequence of pneumonia. This witness, however, stated very intelligible and just answers given to him by the deceased.
    “ William Gordon and his wife, neighbors, but not relatives of the deceased, called to see him Sunday morning, on their way to church, and before the execution of the will. They thought his mind wrong. He spoke to Mr. Gordon to bring his paper from Abbeville. To Mrs. Gordon he said, Are you going to Abbeville ? She said she was going to church: he asked, Is there preaching there to-day ?
    “ Drs. Barrett, Branch, Reid and Davis, who had not seen deceased in his illness, and some of whom had never seen him, stated the effect of pneumonia to be to produce stupor and derangement of mind, and they expressed an opinion that an old man like Mr. Gordon, laboring under pneumonia, could not have mind enough to make a will.
    
      “ This is a sufficient outline of the case to make the grounds of appeal intelligible. If counsel on either side should desire more to be stated, I shall have my notes in the Court of Appeals, and will state whatever may be deemed material.
    “I stated to the jury that many attempts had been made to define with precision, what degree of capacity was necessary to make a will; that it was thus laid down, if a man had capacity enough to make a contract, or to do any binding act, it was sufficient. I said to the jury, that the test “capacity enough to make a contract,” was not always the true rule. For sometimes it might be that a higher degree of capacity to make a contract would be required than to make a will. In making a will, if the testator had capacity enough to know his estate— the objects of his affections, and to whom he wished to give it, that would be enough.
    “ I did say to the jury, that the mere omission of a child, in the disposition of the estate, was no evidence of incapacity. So, too, I said to the jury, the testator had the right to dispose of his estate as he pleased, and that therefore any disposition which he had made was of itself no ground to set aside the will.
    “ It had been argued that the limitation over in the devise of the real estate would not include Mrs. Kirkwood. I thought it was likely (from the mere reading to me of the will, which was my only opportunity of judging,) it might; but I told the jury, this was perfectly immaterial to them. For with the construction of the will they had nothing to do.
    “ I think the learned counsel who drew the grounds of appeal is mistaken in saying that I said to the jury, that “ they must find for the will; that it was impossible for them to find against it.” It is true that I said to the jury, there was no evidence of insanity, lunacy or want of capacity sufficient to destroy the will before or at its execution. Still this was my mere opinion and advice; they were left at liberty, if they chose so to do, to find against the will.
    “ So, too, I told them there was no evidence of undue influence. I said to the jury that I attached very little consequence to speculative opinions, such as had been expressed by Drs. Barrett, Branch, Reid and Davis ; that they were able men, but they as well as most physicians and men were very liable to be mistaken, in speculative opinions — that I relied with much more confidence on the opinion of the intelligent attending physician.
    “ I certainly intended, and still think, I submitted fairly the facts to the jury. If I seemed to argue the case for the will, it perhaps arose more from the preponderance of the facts on that side. It is however true that I did say to the jury, as I closed my charge, that the objections to the will seemed to me to be more shadowy than any which had ever before been presented to me. The jury found for the will.”
    Kirkwood and wife appealed, and now moved this Court for a new trial, on the grounds:
    1. Because his Honor charged that it did not require so much mind to make a valid will, as it did to make a binding contract.
    2. Because his Honor erroneously charged there was no evidence of insanity, incapacity or lunacy prior to the execution of the paper.
    3. Because his Honor charged that leaving out of the paper Betsy Kirkwood, one of the children, was not only no presumption of a want of memory or capacity, but evidence of sound and disposing mind.
    
      4. Because his Honor charged the jury that the provisions of the will or dispositions of property made by the paper, have nothing to do with, and cannot be looked into, in determining upon the capacity or incapacity of the testator.
    5. Because his Honor instructed the jury that in one clause of the will, the limitations over embraced Betsy Kirkwood. But with that they had nothing to do. That whether the paper was reasonable or unreasonable, consistent or inconsistent, was not their business, and they had no right to inquire into it.
    6. Because his Honor instructed the jury that they must find for the will; that it was impossible to find against it. That the objections to the validity of the paper were the most trivial and flimsy of any he had ever heard in a court of justice.
    7. His Honor said to the jury, that the physicians examined as to the disease and the effects of it, was mistaken, and that no weight was to be attached to their evidence.
    8. Because the presiding Judge, instead of submitting the case to the jury, on the testimony, argued it to them with as much feeling, force and earnestness, as did the counsel for the executor.
    9. Because the verdict is contrary to law and evidence.
    
      Thomson, Wilson, for appellants.
    
      McGowen, contra.-
   The opinion of the Court was delivered by

Glover, J.

All the grounds of the appellants’ motion, except the last, suggest error in the charge of the presiding Judge, which, it has been insisted in argument, was too direct and imperative. The organization of the Court makes it proper that the powers and duties of the Judge and the jury should be kept distinct, and that questions of law and fact should be submitted to the appropriate tribunal. This Court has acted on the maxim) ad qceustionem legis, respondent judices] ad qceustionem facti, respondent juratores. To preserve the latter branch of the maxim, it will hardly be contended that a Judge shall simply recapitulate the evidence, and play the part of a mere automaton, and not direct the attention of the jury to the relevancy and sufficiency of the evidence. Where facts have impressed his mind with the truth and justice of a cause, it is his duty to call the attention of the jury to them, and show their connexion, and their sufficiency to prove the issues presented, leaving the jury free to pass upon them. ' His experience should light their path, and lead them to a correct conclusion, not controlled by his opinion, but by the evidence. It is difficult to suggest, a priori, a general rule by which a Judge’s charge upon the facts in all cases that may arise, shall be governed. Without evidence he may withdraw a case from the jury, and shall he be restrained from commenting freely on the evidence, and indicating to the jury the force and effect of certain facts which have been proved ? He must instruct the jury on the facts,— not control their verdict, — enlighten their understandings, not inflame their passions, — and, above all, the discharge of judicial duties demands impartiality.

Is it a violation of any of these duties that the presiding Judge instructed the jury as hisjreport informs us ?• In reviewing the evidence he referred to the prominent facts, and expressed his opinion freely respecting their effect upon the issues involved; but he says this was my mere opinion and advice : the jury were left at liberty, if they chose so to do, to find against the will.”

This tribunal cannot say, in the language of counsel, that the presiding Judge moulded the verdict, or exercised an influence which the circumstances and justice of the case did not require. The evidence no doubt strongly impressed the mind of the Judge, and certainly warrants the conclusion of the jury.

It is objected that the test of testamentary capacity furnished by the Judge was error, and may have misled the jury : “I said to the jury, that the test, ‘capacity enough to make a contract,’ was not always the true rule; for sometimes it might be, that a higher degree of capacity to make a contract would be required than to make a will. In making a will, if the testator had capacity enough to know his estate, the object of his affections, and to whom he wished to give it, that would be enough.”

These views are well sustained by authority. In Comstock vs. Hadlyme, (8 Conn. R. 254,) the language of the Court is, He may not have sufficient strength of memory and vigor of intellect to make and digest all the parts of a contract, and yet be competent to direct the disposition of his property by will. Lord Kenyon says, (Greenwood vs. Greenwood, 3 Curties, Appendix ii,) “I take it, a mind and memory competent to dispose of property, when it is a little explained, perhaps may stand thus: having that degree of recollection about him that would enable him to look about the property he had to dispose of. If he had a power of summing up his mind so as to know what his property was, and who those persons were that then were the objects of his bounty, then he was competent to make a will.”

The testamentary capacity was proved by the attending physician, the counsel who prepared the instructions and wrote the will, and the subscribing witnesses. Against this proof, the evidence of William Gordon and wife, casual visiters, is relied upon, supported by the opinions of four physicians who did not see the testator in his last illness. When the presiding Judge expressed greater confidence in the opinion formed by the attending physician, who had watched the progress of the disease, than in the opinions of those who were not present, and reasoned from the nature of the disease, he only pointed out the comparative value of the evidence before it went into the scales which the jury held.

The extreme age of the testator did not render him incompetent to make a will. It may raise some doubt of capacity, but no farther than to excite vigilance. (2 Phill. 461; 3 Madd. 192.)

The provisions of the will may be looked to, and where, as in Dew vs. Clarke, (3 Addams, 79,) the disinheriting of his daughter was the offspring of the morbid delusion which dethroned the testator’s reason) it was relied upon as an important circumstance. She was his only child, and the property was given to strangers. “ It is quite impossible,” says Sir John Nichol, “ to disconnect the daughter, from the subject matter of the will.” But he by no means makes the contents of the will the substantive ground of his judgment. “ The mere omission of a child ” could not of itself impeach the capacity.

We cannot conclude from the report, that the jury was not left to deliberate and decide upon the facts of this case ; and having the concurring opinion of the Judge and the jury sustaining the will, and the weight of evidence supporting that opinion, the appellants can take nothing by their motion.

Motion dismissed.

O’Neall, Wardlaav, Withers, Whitner and Munro, JJ. concurred.

Motion dismissed.  