
    
      Patton’s Heirs vs. Patton’s Executors.
    
    CiiAKcmn .
    Error to tho Scott Circuit; Thojias M. Hickey, Judge.
    
      New trial. Evidence.
    
    April 8.
    When, there was a diversityand contrariety of evidence before the jury,a new trial wil. not, in general, be grani ed.
   Judge Underwood,

delivered the opinion of the court.

The heirs of Philip Patton filed their \bill against the executors of his will and sundry negroes liberated by it, for the purpose of setting aside the instrument, and procuring a distribution of the property. An issue of dmisavit vel non was tried. The jury, by their finding, sustained the will. A new trial of tbe issue of fact was moved for, but overruled by the court. The complainants excepted, set out all the evidence in their exception, and have brought up the cause for revision.

We are of opinion, that there is such a diversity and contrariety of evidence, that the circuit court acted correctly in not disturbing the verdict. The fact that the deceased evinced an inclination to marry the slave, Grace, whom he liberated, is not a stronger evidence of insanity than the practice of rearing childien by slaves without marriage; a practice but too common, as we all know, from the numbers of our mullatto population. However degrading, such things are; and however repugnant to the inciitu irons of society, and the moral law, they prove more against the taste than. the intellect. De gustibus non düputandum. White men, who may wish to marry negro women, or who carry on illicit intercourse with them, may, notwith* standing, possess such soundness of mind as to be capa* ble in law, of making a valid will and testament.

Haggin, for plaintiffs; Depew, for defendants.

Considering the will of Patton as valid, it does not appear, that the complainants had, at the filing of their bill, or that they will ever have the least cause of action. Wherefore, the decree is affirmed with costs.  